Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 38 - Evidence - May 2, 2013
OTTAWA, Thursday, May 2, 2013
The Standing Senate Committee on Social Affairs, Science and Technology met this day, at 10:28 a.m., to study Bill C-43, An Act to amend the Immigration and Refugee Protection Act.
Senator Kelvin Kenneth Ogilvie (Chair) in the chair.
[Translation]
The Chair: Welcome to the Standing Senate Committee on Social Affairs, Science and Technology.
[English]
My name is Kelvin Ogilvie, a senator from Nova Scotia, and I would like to start by asking my colleagues to introduce themselves, beginning today on my right.
Senator Seidman: Judith Seidman from Montreal, Quebec.
Senator Martin: Yonah Martin from British Columbia.
Senator Eaton: Nicole Eaton from Ontario.
Senator Enverga: Tobias Enverga from Ontario.
Senator Merchant: Good morning. I am Pana Merchant, and I am from Saskatchewan.
Senator Eggleton: Art Eggleton, Toronto, and deputy chair of the committee.
The Chair: Thank you, colleagues. I will remind everyone that we are continuing our study of Bill C-43, An Act to amend the Immigration and Refugee Protection Act.
We have four witnesses with us today, and they have agreed to the order of presentation. I will identify them as I introduce them and ask them to present.
As I indicated, by prior agreement, the first witness to present will be Gordon Maynard, Past Chair, National Immigration Law Section within the Canadian Bar Association.
Gordon Maynard, Past Chair, National Immigration Law Section, Canadian Bar Association: Mr. Chair and honourable senators, I am honoured to speak today on behalf of the National Immigration Law Section of the Canadian Bar Association. The section has over 1,000 members. Our practices embrace all areas of immigration, refugee and citizenship law. The CBA is dedicated to working for improvement in the law and in the justice system. Those are the lenses through which we have studied Bill C-43. You have received our written submissions.
My time for speaking today is short. I am going to focus on one provision of Bill C-43, the main provision, the amendment to section 64(2) of the IRPA. This is the amendment to the two-year rule. The two-year rule was introduced in 2002. The two-year rule says that if a permanent resident in Canada is convicted of a criminal offence and sentenced to two years or more in prison, then there is no review of his or her deportation order in the appeal division.
Clause 24 of Bill C-43 amends that provision in two ways. First, it reduces the two-year period to a mere six-month sentence. Second, it expands the grounds under which permanent residents lose access to the appeal division. It includes no access to the appeal division by permanent residents who are inadmissible due to foreign convictions. That is section 36(1)(b) and section 36(1)(c) of IRPA. Including those provisions in section 64 is new. Those provisions, the foreign conviction or foreign offence provisions, do not involve any sentence of prison necessarily and may not involve any conviction at all. Certainly, they involve no convictions in Canada.
It is important that you understand the meaning of these amendments. I will explain them to you without legal jargon.
Mr. Chair, honourable senators, it is important to understand these changes because these are terrible and harmful amendments. These amendments will cause many unnecessary and irrational deportations. Parents will be separated from children, husbands from wives; the deportations will involve persons who have lived here for decades, since childhood. Families, neighbourhoods and communities will all be harmed. The harms would be many and long lasting. It is not only these individuals and social units that will be harmed; Canada and Canadians will also suffer. We will lose our legacy of being just and fair. Here are examples of how this new law would operate, if passed.
A permanent resident in Canada since 11 years of age, here for 20 years, with parents here and siblings, married with children but suffering from alcoholism and mental illness, loses his employment, falls into substance abuse and engages in petty frauds and credit card thefts. He is convicted of his first criminal offences in Alberta and given a six-month sentence. By Bill C-43, there is no review of his circumstances upon issuance of a deportation order. His time in Canada, his illnesses, his family and his lack of any prior record will not be considered. There is no appeal to the appeal division.
Another example: Mr. Sing, a permanent resident in Canada, is vacationing in Hawaii. While socializing in a bar, there is a racial insult, an argument and a fight. He punches someone in the nose; it is a good punch. He is arrested and appears before a judge the next day. Mr. Sing does not want to spend his time in Hawaii fighting a charge that he does not believe he is guilty of, but he pleads guilty to go home. He pleads guilty to assault causing bodily harm and pays a $200 fine. He is released and allowed to return to Canada. That conviction in the United States puts him within section 36(1)(b). It is a conviction outside of Canada for an offence in Canada that is classified as serious. It does not matter what penalty he received. Under Bill C-43, when he is issued a deportation order, there is no review in the appeal division. Under Bill C-43, section 36(1)(b), inadmissibility denies access to the appeal division.
Third example: In criminal cases in Canada that involve minor offences and persons who are not dangerous to the public, judges can order conditional sentences of imprisonment. This is provision under the Criminal Code. Conditional sentences of imprisonment are served at home, not in jail. It is a form of probation. You wear an electronic bracelet and are usually allowed to leave home during the day, go to work or to school, but at night you are under curfew. Judges issuing conditional sentences will issue them for a lengthier period of time than they would real jail sentences. If a judge was considering a two-month jail sentence, he would in the alternative perhaps order an eight- month conditional sentence. It is a lesser sentence. However, it is a sentence of imprisonment for the purposes of the immigration act. Bill C-43 says that a six-month sentence denies access to the appeal division. That eight-month conditional sentence of imprisonment served at home causes that deportation order that the individual earns not to be reviewable.
This legislation is entitled, "Faster Removal of Foreign Criminals Act." It is said to be necessary to prevent foreign criminals from abusing our appeal system and committing further serious crimes, but these three examples I gave you are of people who will be caught by this legislation. They are not foreign criminals; they are permanent residents of Canada, sometimes living here for decades. They are not abusing the system. They are losing proper entitlement to have their circumstances reviewed. That is the effect of this legislation. This is why it will cause so many more removals that are unreviewable.
How is it that this legislation can become so irrational? How is it that our system for determining removals of permanent residents should lack rationality? I can explain why it happens.
The system of law we have in Canada to determine removal of permanent residents is intended to be a two-step system. It is based on fishermen casting wide nets. We have nets that we can throw out over the water, and we catch many fish with those nets. We have a "Canada net." It catches permanent residents who have convictions in Canada for certain offences, and it captures permanent residents in Canada who get a six-month sentence of incarceration. They are caught by the net and they are said to be inadmissible. That is section 36(1)(a).
We have a section 36(1)(b) net that catches permanent residents who are convicted outside of Canada. All it depends upon is that you are convicted outside of Canada of an offence that is also offence inside Canada. It does not matter what sentence you get. Those people are determined to be inadmissible.
Then we have the section 36(1)(c) net, which is permanent residents outside of Canada who we believe have committed offence. It does not require conviction.
These are the nets that we cast. This is how we capture the fish. We capture big and little fish, and what do we do with them? We bring them into the boat and we sort them out. The boat we bring them into is the appeal division. That is where you look at each fish and say, "Is this a big fish or a little fish? If you are a big fish, we are going to deport you. If you are a little fish, we might still deport you, but we might give you another chance."
The appeal division looks at all the circumstances. It looks at how long you have been in Canada. Paramount is the seriousness of the offence. What is your criminality? Is there a likelihood of rehabilitation? What is your establishment here? Do you have family here supporting you or a community that supports you towards your rehabilitation? How long have you been here?
Looking at all the circumstances, the appeal division decides whether the individual should be deported. We have lots of nets catching fish, and then we have the appeal division to determine who is thrown out and who is allowed to remain.
With Bill C-43, they are cutting out access to the appeal division. They have taken a system that was designed to catch lots of fish, big and small, but not determine the removal until the appeal division heard their case, and it is taking out the access to the appeal division. So many people now will not have access to the appeal division.
What is the result? Big fish and small fish cannot get their deportation orders reviewed and we end up removing people that should not be removed. These are cases where it does not make rationale sense. Will this law sometimes bring us to the right decision for the right people? Yes, sometimes it will — not by design, by dumb luck. Will it result in bad decisions? Yes.
In conclusion, if this government wants to remove the appeal division jurisdiction, if they want to create a system where there is no appeal division review, then you have to have consultation and design a new system. You cannot take an internal combustion engine, remove the carburetor and expect it to work well. It will not. This system was designed to have two stages. If you take away that second stage, you have a system that has stopped working well and stops being just and fair. That is why we should use our sober second thought to not allow this legislation to be passed.
The Chair: I will now move to Ms. Taub, who is an immigration and refugee lawyer appearing as an individual.
Julie Taub, Immigration and Refugee Lawyer, as an individual: Mr. Chair and honourable senators, thank you for allowing me to be present today. Briefly, my background is as an immigration and refugee lawyer. I have represented many clients before the Immigration Appeal Division for criminality as well as for the other reasons that they may appear before the Immigration Appeal Division.
Although I have had singular success, I have been very successful in having deportation orders set aside for people who have been convicted of crimes. I must say that I have not been successful in helping my clients stay crime free. Most of them have reoffended. For this reason, I found this part of my practice very frustrating and I no longer represent convicted people before the Immigration Appeal Division.
That being said, I listened with great interest to the presentation made by my colleague, and before I get into my presentation, I would like to give a few examples. He was talking about foreign offence convictions which would result in deportation of a permanent resident.
Let me give you an example of someone who was a permanent resident and was convicted of an offence and has never been deported under the system we have because he has had endless appeals. The person I am talking about is the convicted PLO terrorist Mohammad Issa Mohammad. He was given a 17-year sentence by a Greek court for an attack on an El Al airliner in Athens in 1968 in which a passenger was killed. The story goes on. He was released on some kind of exchange and came to Canada. He entered Canada as a landed immigrant by using a false identity, and when his real identity and terrorist background was discovered, he was ordered deported in 1988. He is still here. I believe his last appeal has something to do with the fact that he could not get the same health care back in one of the Middle East countries that he could get in Canada. Yes, for an offence conviction he should have been deported, but he was not deported under the current system.
My colleague also said that when someone is now going to be sentenced to six months, he will be automatically deported without a right of appeal to the IAD. However, another case that I will bring to your attention is that of a foreign permanent resident, Joselito Rabaya Arganda, who came to Canada from the Philippines in 1985. He was sentenced to two years in prison for various crimes. In May 10, 2010, the IRB issued a removal order and he had no right to appeal because it was for two years. However, he went back to the Manitoba Court of Appeal to appeal his sentence that he had already served, and they said his sentence would be reduced by one day so that he would have a chance to go to the IAD.
That brings me to a very important Supreme Court of Canada case from January 10, 2013. I just handed it out for distribution. It is R. v. Pham. The Supreme Court decided that at a sentence hearing for any person, the consequences of anything that the accused may suffer on his immigration status is a factor that the court can take into consideration when passing sentence. Counsel should make a submission regarding the immigration status of the convicted, and the judge must take into consideration the immigration status of a convicted person before passing a sentence. Therefore, it is not that judges and the criminal system are bound; they have the latitude to take an immigration status and consequences into consideration when passing sentence. As they have done in the past, rather than passing two years — which was the bar at that time; they would pass two years less a day — it is now six months, but they can give a sentence of three months. They can give a sentence of four months, because one or two months less does not really make a difference when you are giving a sentence.
Let us look at the whole situation. When someone is up for deportation, he did not get there by accident, that is, if we are looking at the criminality aspect. He did not get there because he made a mistake. He is in that situation because he committed a crime. No one forces anyone to make a crime. It is not a mistake. A mistake is something that is an accident, an error, but a crime has purpose and intent. Even so, anyone in Canada — a permanent resident, a temporary resident, an illegal alien — has the same rights before the Charter. This is unique in the world. You step foot into Canada and you have full Charter rights.
Canada's criminal system is renowned in the world. It is second to none. The transparency and fairness is phenomenal and the sentences, truth be told, are lighter than most other sentences that are imposed worldwide, even in other democratic countries. Even before a person is charged, the police must have reasonable and probable grounds to do so.
Second, they have full Charter rights, that is, the right to counsel, the right to be free from unreasonable search and seizure, the right to reasonable bail and the right to a trial within a reasonable period of time. They are given every possibility to defend the charges against them. If they cannot afford a lawyer, they get legal aid. If there are mental health issues, that is always taken into account and they get counselling through social services. If language is an issue, there is an interpreter. Also, the presumption of innocence is accorded to everyone, regardless of their status in Canada. Before they actually get to the stage of having a deportation order issued against them, they have gone through this fantastic, phenomenal criminal just system we have that is really second to none.
If he is actually found guilty he must be found guilty beyond a reasonable doubt, which is a very high threshold. Then, even if he is found guilty, at the sentencing a judge, according to the Supreme Court of Canada, must now take into account his immigration status to see the impact, the consequences. If someone has committed murder, this is not an issue; you cannot manipulate the sentence because of immigration consequences.
A person who is convicted is entitled to appeal not only his conviction but also his sentence. By the time he gets to a deportation order, he has had all the appeals, all the consideration, all the rights afforded to him that a Canadian citizen has.
I have handed out this presentation, and I have handed out a list of examples of criminals who have been in Canada sometimes for decades. One of them I had already mentioned is Mahmoud Mohammad Issa Mohammad.
I would like to mention a W-5 report of February 2013 on Sandra Gordon. I have given the details in the handout. I participated in that documentary. Sandra Gordon came to Canada in 1972. She was 16 then, and she started her criminal career when she was 19. She was convicted for theft. She has 22 counts of loan fraud and counterfeit money. She has amassed over $1 million. To make a long story short, she is still in Canada. The last they have heard, W-5 was able to ascertain that she is now applying for permanent residence status, even though she was recently charged again. The system we have in place is currently not working because it affords someone who is convicted an endless array of appeals. For that reason, I support the minister's attempt to deal with criminals, human rights abusers.
Leon Mugesera is another one. It took 12 years to remove him from Canada. He was found to be guilty of the genocide in Rwanda.
These abuses have to be stopped.
Barbara Jackman, Barrister and Solicitor, as an individual: I, too, represent lots of non-citizens who have appeals before the Immigration Appeal Division. I am happy to say that many of my clients who have criminal convictions have turned their lives around and become productive citizens of Canada, eventually becoming citizens.
I have some difficulty when the witnesses who are pro-government appear before this committee and other committees I have been on and start talking about my clients. Mr. Mohammad is my client. His case is not tied up in appeals. The minister has not taken steps since 2003 to do anything on his case. Mr. Mohammad committed a single act 45 years ago. For heaven's sakes, when do you forgive people? He has never done anything since. He is an old man in poor health, with his entire family who are citizens except for one daughter who is an American. You have to look at the facts.
The principal issue in relation to immigration is that it is not a punishment. We are saying that there should be someone looking at the humanitarian circumstances in these cases. If there is one thing I can say about this bill, and I know it will pass, it is that we will end up in court on constitutional challenges because it simply goes too far. It is mean and undemocratic.
I do not know if you realize that we have had legislation since 1910. We have always had a humanitarian discretion. It has never been limited. The minister has always been able to say people could remain on humanitarian grounds because they are human cases; they are human beings.
I have a bunch of cases from the board, and some of these people have been here since they were two years old. They get off with the wrong crowd and engage in criminal activity. A lot of them pull out of it, but we are taking away their second chance because now they do not get an appeal to the Immigration Appeal Division.
We are also talking away humanitarian discretion, and the humanitarian discretion is the changes to section 25, if you come within section 34, security, or 35 or 37, organized criminality or war crimes. All of those things sound terrible, but you do not understand how the law is applied.
I will give you an example. A woman is the wife of a duly elected member of a Parliament in his country. He is assassinated. She is close to 80. She comes to Canada to be close to her daughters. Since his elected party spoke for a militant armed group that Canada considered to be terrorists in terms of trying to negotiate peace, her husband would have been found to be a terrorist even though he chose not to be involved in that party but chose a democratic way. She is a terrorist because she cooked him dinner and typed his notes. She was his secretary. That is how broad the terrorism provision is. What do you do with an 80-year-old woman whose two daughters are in Canada and does not have anybody else outside Canada? There will not be a humanitarian application for this woman under the new legislation. We have always had that.
These are fundamental changes to legislation that, as Mr. Maynard said, will wreak havoc on Canadians families who have been here for a long time and whose children have been here for a long time. The minister is taking away the discretion to have someone look at the circumstances of that case.
The second point is that the fallback in every constitutional challenge to legislation I have been involved with has been that there is discretion to overcome an overly broad provision. On the terrorism provision, the Supreme Court of Canada said the minister has discretion to overcome that for innocent people who did not do anything. That discretion is now being limited in this legislation. It will not be the discretion that the Supreme Court was talking about. In de Guzman, a case where a woman had not declared her children and could not sponsor them, the Federal Court said that family rights, yes, may be a constitutional right and that family integrity and best interests of the children are all important rights, but the law is constitutional because you have a humanitarian discretion. If you take away those discretions, you are inviting constitutional challenges.
You need someone to look at this legislation from the perspective of whether it breaches the Charter, because it does, and people will be in court challenging it as soon as it is passed. I think that you should read the cases that I brought. It is a mix of cases from the Immigration Appeal Division. They show the different kinds of facts that come before the board, including people who have been here since they were little. Some people win their cases and some people lose their cases.
The answer to Ms. Taub's concerns around all these criminals that Canada is being overrun with is to have processes that work. The Immigration Appeal Board is dysfunctional right now. I do not know why. Maybe they took away resources or they do not have enough board members. We wait over two years to get appeals on. That is not satisfactory.
However, you do not throw the baby out with the bath water. Instead, you put in an effective system. If you have someone who came here at the age of two and now has criminal convictions, get them before the board and have them look at the case and decide it in a year, not in 10 years.
The problem is with the system, not the law itself. It is that the system does not work. There is not a single functional process in the immigration context right now for people who are inadmissible. None of it works because there is not sufficient staff or resources. That is the problem, as far as I can see.
Richard Kurland, Lawyer and Policy Analyst, as an individual: Thank you for the honour and privilege. Past national CBA chair Gordon Maynard accurately summarized the process and procedural changes that will catch these maligned fish. They are wide-sweeping changes.
I like past national chairs, not because I am one too but because we have been around Canada canvassing our colleagues from coast to coast to coast on the impacts of proposed legislation. I have taken this out for a test drive to see really who will be affected. I am concerned for one particular group, and that is individuals who arrived in Canada at six months, one year old and two years old.
Holistically, the problem is the Citizenship Act. Until the Citizenship Act is modified to allow an individual who has resided in this country 10 years prior to age 18, we are capturing the wrong fish. These are people who belong to Canada. These people are denied Canadian citizenship. These people are the victims of this new process described by Mr. Maynard. That is not right. Perhaps delay Royal Assent until the modifications required of the Citizenship Act are put in place. That is point one.
Point two is about retroactivity. My concern is that the very nature, function and purpose of the law are to allow humans to rationally calculate their behaviour. If this proposed legislation comes into force with retroactive effect, let me share with you what Crown counsel and defence lawyers have shared with me. If this law goes through, you will see an increase in imprisonment of foreign nationals. Why? Practically, I would rather spend four months in lock-up than get a conditional sentence or any sentence that exceeds the removal limit. Ironically, this proposed law will create more imprisonment of foreign nationals in order to avoid not the hangman's noose but the medieval law of banishment, which this so eloquently brings into play in Canada.
Those are my two wish list items, a statement by honourable senators that should this law go through it shall not be with retroactive effect. In the other place, no one went on record from the department or around the chamber to say one way or the other whether the proposed legislation will take retroactive effect. The judicial process, if it reads what happens today in this place, will note that. Retroactivity is not presumed. Retroactivity did not follow through the will of Parliament. Perhaps mention can be made here that the intent is not to have this law put into retroactive effect.
That is the time I have, but obviously there are impassioned flames surrounding this issue.
Senator Eggleton: Thank you for all those presentations.
I will pick up on the fish. I think we abhor a situation where people can circumvent their removal for so long, where there is no justification for doing so. I am not talking about any specific case, although Ms. Taub outlined a number of cases here.
I think the big problem with this legislation is the little fish and how far this is going. We are talking about people who could be convicted of very minor offences. We are not talking about murders or rapes or major crimes like that, which would come beyond this legislative provision in any event because they would presumably be more than two years. However, by removing the Immigration Appeal Division examination of this, we are putting people with more minor offences at risk of being removed from the country.
The minister appeared yesterday and said yes, that may be happening for people who get six months or more, but they still have an appeal to the Federal Court. I would not think that is the same kind of process.
Ms. Jackman: That is a judicial review.
Senator Eggleton: That is a judicial review, yes, but he put a lot of emphasis on that in his statement. He said, "Do not worry, they still have that option." Could you comment on an appeal to the Federal Court? I think you have commented on it already, Ms. Jackman, but perhaps you could comment on it further.
Ms. Jackman: The judicial review is to review the legality of the decision to deport. If you have a conviction, you are deportable. There is no humanitarian discretion there. That is not reviewed in Federal Court. It is pro forma. That is all it is. You have to apply for leave, which is only if you show a serious issue. If you have the conviction, you will not even get leave.
Mr. Maynard: That is exactly correct.
It would also be an error to say, "Well, if this law is so bad, then the Charter will save them." That will not happen, either. The court in Chiarelli said that permanent residents do not have a right to humanitarian and compassionate consideration when they are facing deportation. They only have such rights if Parliament decides to give them. That is why Parliament has a free hand to do what they do.
Ms. Jackman: I do not agree with you. Chiarelli is open to be challenged because of family interest. Chiarelli did not raise those issues. I think because of de Guzman, where the Federal Court of Appeal said that the family interest would be looked at on the humanitarian application, it is open to argue that it is unconstitutional, and in fact, that is what will happen. It will get tied up in the courts on constitutional challenges.
Mr. Maynard: Far be it for me to argue with her about Charter issues.
Senator Eggleton: This is not a court here; this is a bunch of senators. Let me go on to another issue. I might come back to that.
This next question falls on Mr. Maynard and some of the cases he talked about. I gave a case yesterday to the minister. I talked about a 20-year-old permanent resident going down to the United States and using fake identification, a fake driver's licence, because he wants to get into a bar. He gets into the bar, gets caught and is issued a $200 fine. It is sort of like the case you mentioned.
The minister shook his head and said, "Oh, no, we are not trying to catch that kind of person," but my understanding is that the law really would catch that person because there would be a foreign conviction. I think he referred to section 36(1)(b) of the Criminal Code, which carries a maximum potential penalty of up to 10 years. Whether you get the 10 years or not, or a $200 fine, it does not matter.
Mr. Maynard: It is irrelevant.
Senator Eggleton: I need to know, does that person get caught by this and therefore is not subject to an IAD?
Mr. Maynard: Yes. The only saving grace is whether they decide to go after him or not. If they decide to go after him, they have him and there is no review of that decision.
Senator Eggleton: It is all in the discretion of the department or the minister.
Mr. Maynard: Right, with no obligation anywhere in law to consider equitable circumstances, nothing.
Ms. Jackman: The one thing I have learned from practising 30 years is when the minister or anyone else says, "We will not use that against those kinds of people," that is just not true. Maybe they will not do so in the first few years, but over the years, who would have ever thought an 80-year-old widow, a wife of an MP, would have been found to be a terrorist because she cooked her husband dinner? I mean, that is stretching the membership in a terrorist organization so far beyond what Parliament thought they were passing at the time. That is what will happen in these cases.
Senator Eggleton: Let me ask a question of those of you who are concerned about the little fish, as am I. How do we deal with these other cases that Ms. Taub talked about? I realize you may have a different opinion on one or two of the cases. That is fine, but generally those who just keep going on for years, those are the kind of people who really should be deported. What do we do about that?
Mr. Maynard: First of all, you have to look at why those cases occur. It is almost never due to the Immigration Appeal Division decision. You only get one appeal division hearing, and they usually make a good decision.
A lot of these cases turn on other issues. The source to delay is as the result of other things. Perhaps they are stateless and have no place where they can be removed.
Perhaps like Clinton Gayle, the fellow who killed the policeman in Toronto years ago and is still in jail now, he was ordered deported. The appeal division said, "You should be deported." The minister did not act on it — not this minister, another minister. They did not act on it, and the department was sued by the Toronto Police Service for causing a police officer's death by not removing a dangerous criminal who was under a deportation order.
Perhaps an individual such as Mr. Mohammad had a pardon in a foreign country and the court mistakenly believed that they had to give credit to that pardon.
None of these were at the doorstep of the appeal division, not one of them. If the minister wants to cite cases where the appeal division is the cause of delay and harms in this country, by all means, please do so and I will be happy to listen. However, you will not find any. They are very hard to find. The appeal division does a good job. They are not the source of the problem at all.
Ms. Jackman: I agree. In the long-standing cases, and I have a fair number of them going back to the 1980s, even one in the 1970s, that are still in process, not one of them has to do with the Immigration Appeal Division. They all have to do with risk in the country of origin, or after 30 years in Canada, the fact that everyone is here and there are strong humanitarian grounds and a clean record. As I said, one conviction in the past: I mean, how many members of Parliament might have a prior conviction that we forgive for them to eventually run to be members of Parliament or hold office? We do not give people a second chance because they are not citizens? We have all along. This will take that away.
Senator Eaton: As a group, you are much more generous than I am. Listening to some of the witnesses yesterday and to you all this morning, we keep on talking about permanent residents and how cruel it is if somebody comes to Canada at the age of 2, commits a crime at the age of 25 or 30 and we want to deport them. Educate me here. Why do you think people will live in this country for 20 or 25 years and not become a Canadian citizen?
Mr. Kurland: After age 18, after age 20, I would agree with you. Why did the person not become a citizen the moment they were eligible to become a citizen? You see a trend of increasing numbers of citizenship applications to the point where it is taking two to five years to have your application processed. People have smartened up, but I agree with the honourable senator that you are 25 and you have never had a prohibition against taking citizenship.
Senator Eaton: Can parents not take out citizenship for their children? If they get permanent residency in Canada, can they not make their children citizens?
Mr. Maynard: Yes, they can. If a parent applies for citizenship, a minor child can become a citizen with them. However, a lot of parents misunderstand the law and think that the child is automatically going to become a citizen and that they do not need to apply. That has happened in many cases, to my knowledge. That is where I see why children who did not become citizens.
My father came to this country from England when he was six months old. He did not become a citizen until he was 70 years old. The reason was that he did not try to get a passport and leave this country until after he was retired. He wanted to go see my sister in New Zealand, and it was only when he applied for a Canadian passport that he found out he was not a Canadian citizen. He thought he was all those years.
Ms. Jackman: I have seen that a number of times for kids. They are in their twenties, have never travelled and do not know they are not citizens. They have just grown up here until someone from the Department of Immigration shows up at their doorstep. It is a problem.
However, I can tell you that Europe does not allow this to happen. The European Court of Human Rights decided that people who came to Europe as children could not be deported for crimes because they were European children, and it was a breach of the right to family integrity. I mean, there are human interest aspects to these kinds of cases. I know they are wrong in committing crimes.
Senator Eaton: It is a recurring theme. I keep hearing these "poor permanent residents," and I keep thinking why have they not become citizens?
Ms. Jackman: Some of them are poor permanent residents. I have a guy who is brain injured. We have been to Federal Court five times trying to keep him in the country. He would not get this agency; it is not the Immigration Appeal Division. However, it is not his fault he is brain injured. Some of them are pathetic. There are very sad stories, but there has to be discretion somewhere for someone to look at it.
Ms. Taub: I happen to be one of these children who came to Canada as an infant with my parents after the war, who are Holocaust survivors, and many other Holocaust survivors who had children came afterwards. In spite of what they had gone through, they had no misunderstanding about obtaining citizenships for themselves and for their children. My sister was about 15 and I was six months old when we arrived. We came in 1949; by 1956 we were all citizens. I have my card. Obviously, I did not apply for it myself. My parents applied for it.
Thousands of immigrants came from Hungary in 1956 with their children, and they all became citizens, in spite of language barriers and whatever traumatic situations they went through before. There did not seem to be any misunderstanding about how to get citizenship and how not to get citizenship.
Just to add one point, we were talking about "these poor permanent residents" and that they are the victims. They have free will, for the most part, with the exception of someone who is brain damaged. When they commit a crime, it was not by accident. They chose to commit a crime and there are consequences. What about the victims of their crime, which is what I believe Minister Kenney has been taking into consideration?
I think we are overlooking the victims of crime in Canada. I do believe there has to be a difference between the rights afforded to citizens and non-citizens. They cannot be treated identically in every aspect. They already have the Charter rights. They already have a criminal judge and a criminal justice system that takes into account their personal stories and their families. That is all taken into account, more than adequately, through the criminal justice system.
Mr. Maynard: I want to make two quick points. One, do not lose sight of the fact that nobody here, not even the most liberal or vocal of us, is saying that no permanent resident should ever be deported. We are not saying that.
Senator Eaton: I know you are not.
Mr. Maynard: We are saying that there should always be an avenue to properly consider their circumstances. If you decide to deport them, so be it, after proper consideration. That is one point.
The second point I want to make is the criminal court is not the place to make these decisions on deportation. There are significant limits to the criminal court. One thing you can say in favour of the appeal division is that it operates more quickly than the criminal court. The criminal court has a job to determine criminal guilt, nothing more. They are not there to have another set of witnesses to determine deportation. They are not equipped to do it. We have a system that does it very well right now, and that is where it should stay.
Senator Eaton: I guess some of us would disagree with you, Mr. Maynard.
Mr. Maynard: I appreciate that.
Senator Eaton: I would like to pick up on something that Senator Eggleton was asking in regard to the young man who goes to the United States, gets into a bar fight and is fined. He could be deported. I thought the bill clearly states that with regard to an act committed outside Canada, for someone to be deported, he or she would have to have a maximum sentence of 10 years in Canada. Somebody getting into a bar fight with a false ID will not get a 10-year sentence in Canada.
Mr. Maynard: The law says that you are inadmissible if the offence in Canada has a potential penalty of 10 years. It makes no difference whatsoever what sentence you got in the United States. You are inadmissible because, potentially, the penalty in Canada might have been 10 years.
Senator Eaton: It would not be if you were in a bar punching somebody. I guess I read it differently than you do.
Mr. Maynard: With great respect, you read it incorrectly. You do not require a sentence of 10 years outside of Canada. You do not require any conviction at all, in fact. You do not require any jail sentence. A $200 fine will get you a deportation order in Canada because the offence in Canada has a potential penalty under the law of 10 years. That is all you need to look at.
Ms. Taub: He is right, but since we do not have the Criminal Code before us, I do not know if a bar fight would come under that.
Mr. Maynard: No, but assault causing bodily harm does.
Ms. Taub: Yes.
Senator Enverga: It has the potential.
Mr. Maynard: Yes, all it takes is potential penalty in Canada.
Senator Merchant: I have to disagree with you, Ms. Taub, that every Hungarian or every Greek who came to this country made sure that their children became citizens. I know the very exact thing happened to my family.
Ms. Taub: I never stated "everyone."
Senator Merchant: Yes, you stated "everyone"; I am sorry. When you came to the Hungarians, you said every one of them, so that is not true. It is very difficult to include everyone. I know that that can happen, but I will not go into it because that upsets me terribly.
I do find it upsetting also that one size could fit all because that is what we are talking about. I like to quote Greek mythology and the anecdote of Procrustes, who claimed that he had a bed that could fit all, but he neglected to tell people that when he put them in the bed, he either had to stretch their legs or cut off their legs to make them fit. I do not think it takes too much imagination to understand that idea of one size not fitting all.
I asked the minister yesterday whether a person who may be suffering from mental illness would get special consideration because they might have committed an offence and I suggested that someone should look at it. He said that that person had the courts to look at it. I heard you say this morning that the courts are not equipped to deal with those cases. I will not go over those because you have given me the answers.
How do you feel about the powers that the minister has given himself, then? Can you comment on that, please?
Ms. Jackman: I represented George Galloway. The powers that the minister has given himself under clause 8, proposed section 22.1, to refuse admission for three years on the basis of public policy considerations we call the Galloway clause. It is meant to give the minister the power to turn people away because the minister does not like their politics, and it is wrong. I did not cover that in my presentation, but that is how it will be used. I know it. Why does the minister need that power when we have all the inadmissibility grounds? It is just a pure grab to give his political views some weight in getting back at people.
Senator Munson: I would like a supplementary on that question.
The Chair: I would prefer not; I will let you ask your question directly when it comes to your turn, rather than getting into debate.
Senator Munson: Why can I not ask a supplementary on an issue that is happening —
The Chair: Senator Merchant.
Senator Merchant: Are you finished with your answer?
Ms. Jackman: One of the cases here that I will give Senator Ogilvie is about a Hungarian who came into Canada in 1957 and was being deported for criminal offences in 2006 and never became a citizen.
Mr. Maynard: I would worry that that authority to the minister, and not necessarily this minister but any future minister, is a potential source of great embarrassment to Canada. I worry that it will be used for ideological reasons and that we will cease to look like a tolerant country willing to hear other views. That is my worry.
Mr. Kurland: In the event the power would be invoked, it may result in an unintended adverse political consequence. If the idea is to shut someone out from the country on public policy grounds, hearing the other witnesses on ideological grounds, would that not attract litigation providing a trampoline to media to further broadcast the views of the individual? I would like to see it road tested out in the field before we slam it.
Senator Seidman: I would like to try to not get lost in the forest, so to speak, and try to see the trees. The longer I listen, the more complex all of this appears to be.
I would like to go back to what we yesterday heard from the minister. He said that this bill will deal with loopholes in Canada's immigration laws that permit endless appeals and years of delay in what is eventual deportation. He said very clearly that criminals will still get their full access to the criminal justice system and all the appeals under that system, but what they will no longer get is access to an immigration hearing appeal that delays their deportation. If we could look at what he said, where he really tried to describe the impact of this bill, could I have some feedback from you on that, please?
Ms. Taub: I think I went into that during my presentation about the thoroughness and fairness of the criminal justice system. If someone does have mental illness, they will not be found guilty. If they are not mentally competent, they will not be found guilty. Therefore, if they are not found guilty, they are not deportable because of mental illness or mental incompetence.
I want to touch again on that latest Supreme Court decision that is making it almost mandatory now for the criminal justice system to take into consideration the immigration consequences of any sentence that is passed. That is why up until now judges who were considering a two-year sentence that they thought was an adequate sentence or punishment to fit the crime felt that two years less a day made no difference for deterrence. However, it did make a significant difference for the purpose of immigration. Therefore, they would often pass two years less a day simply to avoid invoking a deportation order. They are free to do so now.
I do not know if I can bring this up now about the little fish, but many people seem to think that the little fish for crimes that are not serious would result in deportation. I want to bring as an example the DUIs, driving under the influence. We all know the serious issue we have with DUIs. By coincidence, I am a supporter of MADD, Mothers Against Drunk Driving. This was sent to me in the mail yesterday. One of their facts is that impaired driving is the number one criminal cause of death in Canada. Number two: Every day on average 4 Canadians are killed and 174 are injured due to alcohol or drug-related vehicle crashes. This is serious.
However, listen to the sentencing. For the first offence, it is to a fine of not less than $1,000. You are not deportable. To a second offence, it is for imprisonment not less than 30 days and a fine, so you are not deportable. For each subsequent offence, it is imprisonment for not less than 120 days. It may become deportable, depending on the number of repeat offences. Therefore, where the offence is prosecuted by indictment for imprisonment for a term not exceeding five years — that is, if the sentence is less than six months — they are not deportable because the maximum term for imprisonment is five years.
Senator Seidman: If I could just interrupt for a moment, I do not know if anyone else had a comment on that, but my questioning time is very limited. I am sorry.
Ms. Jackman: I want to comment on the Pham decision. I was one of the people arguing in front of the Supreme Court of Canada. The court is clear that if the range of sentences is one to two years for the kind of offence you committed, they will not give you less than six months. You can look at immigration status, but it is on the borderline cases. My friend is wrong.
The other thing she is wrong on is the perfectness of the criminal justice system. People who have mental illnesses fall through the cracks all the time. That is what happened with my guy who is brain injured. I think that is problematic.
Regarding the answer to the concerns that the minister has, first, people are here not because of endless appeals. There is one appeal, as Mr. Maynard said. That appeal should just be done quickly, like they have done with the refugee division. The hearings are within a couple of months, so get the appeal on. You do not have to keep them here, but someone needs to look at their case.
Mr. Kurland: There is, by design, a thinning of equality of mercy. There is no getting around it. It is a value decision emanating from the people of Canada expressed through the ballot box. Now there are those who will bring the matter to the judiciary and argue that the Charter trumps political will. That day will come, but you cannot get around that there is less access. My concern is on retroactivity. You cannot rear-view mirror the application of this proposed legislation.
Senator Seidman: I asked that question yesterday of the minister when he was here, very specifically, and brought the transcript with me. I asked if the bill would have a retroactive effect. The Manager of National Security Policy, Public Safety Canada, responded by saying:
The proposal called mandatory minimum conditions would be to impose minimum conditions on people who are considered or determined to be inadmissible for security inadmissibility reasons. Rather than have those conditions being imposed only for future cases, we would like those conditions to be imposed also to individuals currently in Canada who are either being considered or are determined to be inadmissible for security reasons, such as terrorism and espionage.
That was the exact response. I did not try to change it. I just read it.
Mr. Kurland: I was on tenterhooks. I did not hear "yes" or "no."
Mr. Maynard: With respect to the provisions of subsection 64(2), the loss of appeal rights if you have a sentence of six months or more, it will be retroactive. It will apply to anyone who already has a conviction of more than six months unless, by the time the law is passed, their case has already been considered by the department and they have already reported and been referred to an admissibility hearing. That will be very few people. There are people here who thought that there was a right of appeal because they had a one-year sentence. They will lose it retroactively. It is very unfair.
Senator Munson: Following up on Senator Merchant's question, you did answer it but, for the sake of the record, the minister did say that when it comes to proposed section 22.1 in the bill, the buck stops here. What is wrong with that?
Ms. Jackman: He is the one that got his officials to deny admission to Mr. Galloway. The Federal Court said it was political and overturned the decision. That is the same minister. He interferes in individual cases on an ongoing basis because of his own political views.
Senator Munson: On the Charter, we are having this discussion this morning, we had the discussion with the minister, and we had discussions yesterday with others who oppose the bill. We talk and we talk and we talk, but the die has been cast. It will happen. We can talk all we want here today, and we can vent and be angry or be happy with the bill, but it will not change much. It will become law. There will not be any delay in Royal Assent. It does not happen that way.
When you talk about cases you say are breaching the Charter, what happens then? Let us say this becomes law next week. Will the courts fill up with cases? Will cases be taken to the Supreme Court? There does not seem to be any court of appeal either in this room or in government these days.
Ms. Jackman: Cases will start piling up in the court. Some of them will go ahead and will go up through the system. The government can count on this legislation staying in place for several years while it goes up through the system. The court may at some point say that the discretion needs to be there and it is unconstitutional or not, in which case three years from now there will be a new bill. It takes time, three or four years.
We are doing challenges to the 12-month bar on risk assessments. That will not even come for full argument before a court yet. It will not come until this summer. That is in Ontario. I do not know what is happening in other provinces. That will go up eventually. Whether we win or lose, it will be several years. I think the government counts on that. They know that this legislation will stay in place until the courts say otherwise.
On the refugee thing, the automatic detention, we argued that case in the Supreme Court of Canada in 2007 and won. You cannot arbitrarily detain people, and then the government passed an arbitrary detention bill. They know it will get challenged and that some of it will be struck out, but they are counting on the law staying in play for a few years.
Senator Munson: Have you given any thought to the rights of the child under the UN charter? That seems to be missing in action in this legislative cross-fire. It does not seem to be part of the main debate, and I feel it should be.
Ms. Jackman: Canada just lost a case at the UN Human Rights Committee on the deportation of a long-term resident who had his entire family here. Canada was found in violation of the Covenant on Civil and Political Rights. I think the case was called Warsame, and it just came out at the end of last year. There will be more challenges to the United Nations Human Rights Committee and the Inter-American Commission on Human Rights will challenge this legislation as well. We are in a position now to take a case there because we lost in Canada. Those conventions are being used, and they will used as cases build up at that level. They will be used in the domestic courts to show it is a breach of the Charter as well.
Mr. Maynard: Are those cases binding on the actions of the department?
Ms. Jackman: In good faith, Canada ratified that treaty and is supposed to be bound by the convention and by the committee's decisions. If it does not follow them, it does not follow them and it is acting in bad faith internationally, but who cares? Canada is already in trouble internationally because of this government.
Senator Seth: What I have heard is interesting and I am learning a lot. In your experience, how much of a delay is there when an individual makes an appeal to the Immigration Appeal Division?
Mr. Maynard: It varies from region to region. In Vancouver, these appeals take about a year or less to come on. They do not take that long. Ms. Jackman says in Ontario it is taking two years. It varies.
The removal order proceeding and the appeal can be commenced as soon as the individual has been convicted. If the individual is in jail anyway, they are not going anywhere. The appeal can be conducted. Generally, let us say a year, year and a half, two years is what it is taking now. There is absolutely no reason whatsoever it needs to take that long. All you need to do is get resources to the board and start the appeal as soon as the conviction is entered. All you need is the conviction. Go ahead and start it right away and get the appeal done in three months. That is entirely possible. All it takes is will. They do not give the resources to the board.
Ms. Taub: To be fair, the whole system was put into place in 2002 under the Liberal government and it was never put into consideration that an appeal should take place in the prison.
Ms. Jackman: Appeals have been taking place in the prison since I have been practising, for 30 years.
The Chair: Would the witnesses please confine themselves to answering the questions directly and not debating among themselves, except to make a point to the senator.
Senator Seth: I have a question in regard to that. What happens to the cost of these appeals? Is it typically covered by the immigrants? What happens if they cannot afford legal representation? Who pays for that?
Ms. Jackman: They may get legal aid depending on what province they are in. It is difficult to get it. Mostly they are private clients and the families help pay for it.
We do immigration appeal hearings at the jails. They have been done there since I started practising in the 1970s.
Senator Seth: If they cannot afford it, it will be taxpayers' money?
Mr. Maynard: Not necessarily.
Ms. Jackman: No, most of them are privately paid. Family members pay. Ontario used to give certificates for it. I am not sure if they still do.
Senator Martin: I know that we have been focusing solely on those who would be captured by this legislation, if passed, and I know the vast majority of those permanent residents are law-abiding and contributing to Canadian society. We are talking about a minority, and I think of the vast majority of Canadians and our fundamental rights as Canadians versus the privilege of those who are in Canada in a very generous system.
I want to shift the focus to the loopholes that currently exist and the delays that happen. I was directly involved in a case where now it is seven years, and this individual is still in Canada. It is very frustrating from a Canadian perspective to think about the vast majority of people who are law-abiding and are respectful to the law.
In terms of loopholes, would you speak to how this bill would address and improve the current act as it is? The delays are unacceptable and extremely frustrating from the perspective of the vast majority of Canadians who are deserving of a fair, more effective system. I am referring to loopholes and how this will improve that.
Ms. Taub: The delay that would be eliminated is the one- to two-year wait for the Immigration Appeal Division hearing. I do agree that if we had an Immigration Appeal Division hearing immediately there would not be this delay to begin with. It is a huge delay, and it is a bureaucratic one that could easily be remedied by doubling or tripling the resources and expanding the Immigration Appeal Division in various cities rather than restricting it. They are closing the Ottawa office, which is another issue that will certainly not improve effectiveness.
The other delays result with Federal Court. As my colleagues have said, when you go to Federal Court, it takes years until you can be heard.
Mr. Kurland: There are loopholes closed. With a heavy hammer, the loophole that is closed is access to the system. Intake is closed, so I do not know how you would categorize that as a loophole or not.
In terms of loopholes, it will highly motivate individuals who are eligible for Canadian citizenship to seek Canadian citizenship and not be part of that inventory.
Following from Senator Eaton's comment about how we have 25-year-old non-Canadians. There is creative maladministration on the part of Citizenship and Immigration Canada. This is a direct answer. For the first time, we have the requirement to renew permanent resident status every five years. That means that an individual has to have contact every five years to get a fresh Maple Leaf card. How is it that when they apply for that new Maple Leaf card, they are not automatically queued for citizenship? They are eligible and they have the information; what is the problem? That is a loophole worth closing.
Senator Martin: Thank you. That is a key point.
Mr. Maynard: First, I would never categorize access to the appeal division as a loophole. As Ms. Taub says, it can certainly be sped up, in any event.
Where there are long delays, it is usually as a result of issues such as refugee protection or other rights of protection, such as risk issues that prevent Canada from removing a person to a country where they apparently face risk. The difficulty of trying to legislate the right to remove versus the obligation to protect is one that does tend to stall removals. Those are usually the causes of lengthy delays.
Federal Court can be for a variety of issues, but not for the appeal division. Very few decisions of the appeal division are ever successfully taken to Federal Court. You need leave. It takes three months to get through the leave process, and in most cases it is denied.
This legislation does not close off any of the real loopholes that exist out there, if they are loopholes. They are simply addressing the role of a very necessary tribunal that does an effective and efficient job.
Senator Martin: I agree with effective, but it is definitely not efficient because the delays are quite long.
What percentage of people would be captured by this law? It is a minority of those who have their permanent residency within Canada. Is there a figure? I am just curious.
Mr. Kurland: I actually tried to get that figure. Here is the rub: There is no way today to re-open a sentence hearing after sentence is passed. I put that question to senior Justice officials and to senior members of the criminal bar of Canada because this was the unemployed criminal lawyer relief act; there would be tens of thousands of motions to re- open sentences on the basis of the retroactive impact of this law. There are tens of thousands of low-end, conservative estimates of immediate motions.
Senator Martin: Anecdotally, in all my years, I know of only two cases. However, I was just curious if you had that figure.
Senator Enverga: I was struck by one of the cases here where I think Ms. Jackman talked about someone who committed a crime in their own country 45 years ago and then came to Canada with a false identity. Is he still here in Canada doing all sorts of appeals until he gets old and retires?
Ms. Jackman: That is not what happened. Ms. Taub has the facts wrong. He was deported in 1998. It took a long time because of risk issues; he is a stateless Palestinian.
When Mr. Maynard said that with almost every case you look at it has been a long time, it is because there are protection issues at stake. There was a single event 45 years ago with no criminal act since, and the case has been tied up not with sponsorship appeals or Immigration Appeal Division hearings or anything like that. It has been held up on the risk issue. Can he be deported back to a country where he will not be safe?
Senator Enverga: But he came here with a false identity.
Ms. Jackman: No, he did not come with a false identity. He came under his own name with his own date of birth. He did not, however, say he had a pardon for that offence. He did not mention his conviction and he did not mention his membership in the PFLP. He misrepresented, but he did not give false identification.
Senator Enverga: He did not provide false identification, so he was here legally. Is that what you are saying?
Ms. Jackman: He came as a permanent resident. He misrepresented. He did not tell them about the offence for which he had been pardoned, and he did not tell them about his political activities. He did misrepresent, and he was ordered deported.
Senator Enverga: The reason I am asking these questions is because I would expect everybody who comes here to become permanent residents to abide by the law. I think when someone commits any crime, I for one, as an immigrant, would like them to be punished. I would like to make sure that our taxpayers pay for the right cause. If I were to commit a crime, keeping me would be a sin to all taxpayers of Canada. That is what I am saying. We should not try keeping these people appeal after appeal just to make sure they grow old and eventually retire.
Ms. Jackman: That is not happening. I do not know why everyone keeps — maybe because the minister told you it is appeal after appeal. It is not.
Like I said in his case, the last time we were in court on the issue of risk he faced in going back to the country that was his habitual residence because he is stateless was in 2003. Nothing happened after that. It is not his fault the minister did not make the decision they were supposed to make when the court sent the matter back in 2003. We are nine years later.
You cannot say it is his fault or these guys are tying up the system. There are bureaucrat problems with these kinds of protection cases. I do not think they know what to do with them. If people are at risk, what do you do with them? They are not easy cases.
Mr. Maynard: The minister has said that the reason this law needs to be changed is because serious foreign criminals are committing serious criminal acts in Canada while delaying their removal due to endless appeals. I do not know if I am quoting him exactly verbatim, but that is pretty darn close.
The process that is being attacked by this legislation is not the source of endless appeals. That is just not the case. It is not true that the appeal division is at fault. The appeal division does a good job. I have spent 25 years practising law in this area; I go into that appeal division and I am proud we have that tribunal because it does the right job. The minister is there represented by his hearings officers, the person concerned is there, evidence is put on the table, a record is kept of that evidence and a written decision is given. In those decisions you can never complain that you have not had your day of hearing. If they say you have to go so be it, but it is a fair process and it takes into account all the right things. Why are we getting rid of that? Why?
Ms. Taub: I would like to come back to my example of Sandra Gordon, who was here since 1975 and ordered deported. W-5 has investigated her case twice, and the last Federal Court ruling for March 14, 2007, says that the application for leave and for judicial review is dismissed. Two months later Justice Gibson confirmed that decision, so why is she still in Canada? This is not a matter of risk in returning to Jamaica.
I do not have the answers and I cannot imagine why this would happen in a case like this. I do not know what is causing the delay. I honestly cannot imagine.
Mr. Maynard: Then why are you bringing the case here as an example?
Ms. Taub: I do so because this is one of the cases he is trying to address by this.
Ms. Jackman: This does not address it.
Mr. Maynard: This does not have anything to do with the appeal.
Senator Enverga: I do not want to pinpoint one particular case here, but the point is the person has committed a crime; he was sentenced to six months and then pardoned. At the same time the immigration officials want him to be deported. He committed a crime and that is it. It should be part of the whole system. Which should we follow, the immigration process or the criminal process? This person is not good for the country. Is he a permanent resident?
A permanent resident should abide by the law. If a sentence is for six months does it mean a serious crime was committed? Drugs crimes are serious crimes.
Mr. Kurland: I hear the concerns. If someone commits a criminal act, frogmarch them to the airport. I understand. Looking forward, the inventory of people who would be caught with a frogmarch is back-end inventory. These are the long-term illegals. For people to come to this country today as a permanent resident, tainted with criminality, they are not coming because of the recent changes to the system.
Who are we talking about, then? It is not people who have immigrated within the last five years. This is aimed at a completely different segment of Canadian society — the long-term people. That is why I come back to the fact that it is really a Citizenship Act problem that will cut the Gordian knot.
Here is one last point, Mr. Chair: Remember how difficult high school was no matter what country you were in? Imagine you are trying to fit in. You are different. Your classmates are Canadian and you are not. The recent root cause analysis: Why are we not helping permanent residents become Canadian at the high school age level so they can integrate and not be recruited by bad people to do bad things? This failure on the part of the Citizenship Act goes beyond criminality. We should be examining giving citizenship to people who have grown up in this country, with 10 years in Canada prior to their eighteenth birthday, and your problem, honourable senators, is resolved that way.
Senator Enverga: You mentioned that a constitutional challenge could be made on this. Have you ever made that?
Ms. Jackman: I said that a constitutional challenge could be made in relation to the fact that you are separating families without considering that. You have to look at the best interests of the children and you have to consider their interests. That is under the UN Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, and it is part of the Charter. If we do not have some discretion there somewhere, for someone to look at those interests, it is unconstitutional as far as I am concerned. I cannot say we will succeed before the courts, but I believe there is a really good chance. You do not take away discretion. That is what saved it all these years and now they are taking it all away.
Mr. Maynard: I am not so sanguine about that. I do not think the Charter will save this. The only thing that will save this is common sense from Parliament.
Senator Eggleton: I want to talk about a case raised yesterday by the Canadian Council of Refugees and get your comments. It deals with the question of security and admissibility, people who have perhaps fought against oppressive regimes, whether that is in Syria or Libya or wherever.
In this particular case, a teenage Iranian girl was involved with an opposition group. She attended meetings, went to demonstrations and handed out flyers in Iran. Because of her activities she was arrested, imprisoned for five years in the infamous Evin Prison, where she was tortured. She later fled to Canada. She had been found inadmissible on security grounds because of her association, between the ages of 14 and 16, with a banned group.
As I understand it, one of the reasons they raised this is that the minister could intervene as it stands now on humanitarian and compassionate grounds, but that will be removed in this case. Can you comment on that?
Ms. Jackman: The 80-year-old widow case has the same kind of issue. Those cases are a dime a dozen because membership in a terrorist organization covers people who never did anything wrong and whose organizations may have had a number of different purposes. For example, if you are involved in the PLO you could work in a medical clinic taking care of people, but you would be banned from Canada as a member of a terrorist organization. It is very broad. It does not matter what you did or what you believe in, it is any association. You could overcome that through a humanitarian application, but you cannot do that under this legislation. That is why we are saying this is the fundamental change.
You may remember the green paper and the white paper discussions in the 1970s. We had discussions across Canada. As a student, I first became involved in terms of talking about the direction we wanted to take. Taking away humanitarian discretion, which we have never not had, is a fundamental change in the way we look at non-citizens. I believe there should have been a national debate about whether or not we want to go there in terms of being a mean, petty, disgusting country.
Mr. Maynard: Years ago, in a discussion with a department, I said that discretion is the oil that keeps the enforcement machinery running smoothly. When you take out the discretion it runs harshly, and that is what is happening now. We are taking out the discretion and the machinery runs harshly.
Ms. Taub: Discretion is often tempered by political ideology. It is also tempered by political correctness and the party that is in power. Perhaps it is better to have a law or regulations in place rather than allowing discretion on the part of any one person or any minister.
Mr. Kurland: Leaving that point aside, it is like a balloon. You are going to squeeze it on one end to remove discretion and guess where it comes out? It comes out in the boardroom of the Globe and Mail and CTV News. It will be a great televised case exacting a political price and discretion will return over time. That is the pendulum over the decades.
Senator Merchant: I will go back to the powers that this act gives to the minister, and not just to this minister but to a minister of immigration. Are any criteria set forth in this act? Do other countries — perhaps Australia or the U.S. — have anything similar to this that we might look at to see what criteria they have set forth?
Ms. Jackman: Nothing in the act sets out criteria for public policy considerations.
I do not know enough about U.S. or Australia, but I do know that our government tracks what happens in those countries when it passes laws, so maybe they do have legislation.
Senator Merchant: The minister mentioned something yesterday about Australia. I do not have the text in front of me.
Ms. Jackman: In public policy considerations, I would not be surprised if there is not a void-for-vagueness argument made about it. Who knows what it means?
The Chair: Obviously these matters are very important and complex from the point of view of personal interpretation. There has certainly been enthusiastic energy among the witnesses, as well as in the entire room today. On behalf of the committee I want to thank you for responding with the fullness of your thinking with regard to these issues. I am sure you have been very helpful to us. We are faced with dealing with the issue in the end, and I want to thank you on behalf of the committee for being here today and for participating as you have.
To my colleagues, thank you very much for the way you have handled yourselves.
(The committee adjourned.)