Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 39 - Evidence - May 8, 2013
OTTAWA, Wednesday, May 8, 2013
The Standing Senate Committee on Social Affairs, Science and Technology met this day, at 4:13 p.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: I welcome you to the Standing Senate Committee on Social Affairs, Science and Technology.
[English]
My name is Kelvin Ogilvie. I am a senator from Nova Scotia and chair of the committee. I will ask my colleagues to introduce themselves, starting on my left.
Senator Eggleton: Art Eggleton, senator from Toronto and deputy chair of the committee.
Senator Merchant: Pana Merchant from Saskatchewan.
Senator Enverga: Tobias Enverga from Ontario.
Senator Eaton: Nicole Eaton, Ontario.
Senator Martin: Yonah Martin, B.C.
The Chair: Thank you very much, colleagues. As we all know, we are continuing our discussion of Bill C-43, An Act to amend the Immigration and Refugee Protection Act. By agreement, I will introduce our witnesses today as I invite them to speak. I will start from my right and go across the panel.
I will invite Ms. Mangat, a lawyer with the British Columbia Civil Liberties Association, to please proceed.
Raji Mangat, Lawyer, British Columbia Civil Liberties Association: Thank you. Good afternoon, Mr. Chair and senators. I am pleased to be here on behalf of the British Columbia Civil Liberties Association. Thank you for this opportunity to speak to Bill C-43.
The BCCLA adds its voice to others who are deeply concerned about the erosion of due process and procedural fairness that Bill C-43 represents. Bill C-43 purports to address perceived delays in removing foreign criminals from Canada but its impact will go further than that.
Along with the statement I make today, the BCCLA also fully endorses the statement made by the Canadian Bar Association in respect of Bill C-43.
My presentation today will focus on three aspects of the legislation.
First, I call your attention to subclause 5(2), which would create new subsection 16(2.1). According to the proposed amendment, foreign nationals would be required to attend an interview and would be obliged to answer all questions for the purpose of an investigation conducted by CSIS. There is no language in the provision to restrict this questioning to that which is relevant to the person's application for admissibility.
We do not dispute that, in making immigration applications, individuals could reasonably expect to be involved in security screening and to be required to answer questions in that regard. Indeed, section 16 of the IRPA currently creates an obligation on an applicant to answer questions put to them by an immigration officer during an examination. However, section 16 limits that obligation to that which is reasonably required by the officer. In practical terms, the applicant has no obligation to answer questions unrelated to his or her admissibility.
We wonder, then, why is there no similar limitation on CSIS interviews? It is unprecedented, contrary to Charter values and almost assuredly ripe for constitutional challenge to grant CSIS the power to compel people to answer questions that are entirely irrelevant to the application at issue. The obligation to attend and answer questions for a CSIS investigation ought to be limited to the information reasonably required in respect of the individual's application. Otherwise, this provision will surely be seen, upon judicial consideration, as an unchecked "fishing expedition."
The BCCLA's second concern is with respect to the granting of ministerial authority under proposed subsection 22.1. The proposed amendment would grant the minister unprecedented authority to, on his or her own initiative, deny entry to foreign nationals for up to three years at a time if, in the minister's own opinion, the denial can be justified by amorphous public policy considerations. This provision empowers the minister to decide without any parameters and absent any accountability who can be denied entry into Canada. Please recall that these are people who are otherwise not excluded from Canada using the nine grounds of inadmissibility already found in the legislation.
The notion of public policy considerations is so vague and undefined that, absent any criteria, it constitutes virtually unfettered ministerial discretion and flies in the face of due process. Once again, this provision is unlikely to withstand constitutional scrutiny. Any valid public policy consideration for denying entry to Canada ought to be explicitly outlined in the law and subject to public debate, parliamentary oversight and approval.
The third and final point I would like to make today concerns the provision at clause 18, which will replace the current ministerial waiver provisions by adding a new section 42.1. Under proposed section 42.1(3), the act would provide that:
. . .the Minister may only take into account national security and public safety considerations, but, in his or her analysis, is not limited to considering the danger that the foreign national presents to the public or the security of Canada.
What does this language mean? The provision is so problematically worded it appears to be inherently contradictory. Not only is it difficult to understand, but it is also unnecessary. The Supreme Court of Canada is considering this very issue in a case that was heard on October 18, 2012, the Agraira case. In Agraira, the Supreme Court will determine the lawfulness of a ministerial waiver and the role that a waiver plays within the larger inadmissibility regime. It would be prudent for Parliament to wait and see what the Supreme Court decides before making changes to this provision.
The BCCLA has serious concerns with many of the proposed amendments in Bill C-43. Canada already has the ability to protect itself from foreign criminals, and we do that best, most efficiently and effectively, through due process and procedural fairness, which we stress is absent from this bill.
Thank you for your time. I am happy to answer questions.
[Translation]
Peter Edelmann, Lawyer, as an individual: Thank you, senators, for the opportunity to speak to you today about this bill. I specialize in immigration and refugee law, but I also practise criminal law. A great deal of my practice is precisely concerned with the area covered by this bill. I am a member of several organizations that have already appeared before you, before the House of Commons committee or the other committee, including the Canadian Council for Refugees and the Canadian Association of Refugee Lawyers. I was quite involved in preparing the submissions of the Canadian Bar Association. I will not repeat what was in those submissions; I share several of the concerns expressed by these organizations. I will be happy to reply to questions on those topics.
[English]
What I would like to use my time for today is to focus on one amendment and one issue that I think is very important for you to consider in terms of a very small change to the legislation that would have a major impact with respect to permanent residents; that is, a change to clause 24 of the bill, which proposes an amendment to section 64(2) of the act.
There has been much discussion about the six-month rule before you and before the House of Commons committee. My focus is not on the six-month rule. My focus is on the last part of that clause. The clause says that section 64(2) would read:
(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months. . .
I would propose that the clause end there. The part that I am concerned with is:
. . . or that is described in paragraph 36(1)(b) or (c).
Paragraphs 36(1)(b) and 36(1)(c) have to do with foreign convictions or committing an offence in a foreign jurisdiction. Committing an offence in a foreign jurisdiction does not require a conviction or an arrest. It does not require any interaction with the police in that foreign jurisdiction at all. If an officer has grounds to believe that someone committed an offence in a foreign jurisdiction, they can be referred to the board for inadmissibility under paragraph 36(1)(c). For a permanent resident, the person would go to the immigration division. The immigration division only decides the technical issue of whether or not the conduct is the equivalent of an offence in Canada that would have a penalty of 10 years or more, or could have. It is important to understand "could have" and that the maximum possible penalty for this conduct could be 10 years or more.
It does not matter that the person would never be charged in Canada. It does not matter that the person would never get a 10-year penalty in Canada. It does not matter that all of our courts would overturn a sentence of anywhere close to 10 years on that type of conduct. If the maximum penalty could be 10 years, that person could be referred to the Immigration Division. The Immigration Division would have no choice but to issue a deportation order. The Immigration Division has no equitable jurisdiction and cannot consider any other factors, so the factors that are considered by the Immigration Appeal Division, such as the seriousness of the offences leading to the deportation order; the possibility of rehabilitation; the length of time the person has been in Canada; their establishment; their family; their support systems; none of those things can be considered by the Immigration Division. The Immigration Division is specifically prohibited from considering any of those factors.
The only issue is whether or not there is equivalency. What is being proposed here is to place enormous discretion in the hands of individual officers, because as soon as an officer writes a section 44(1) report that is referred to the board, the board will have no choice. If it fits under section 36(1), the board will have to issue a deportation order and there will be no equitable appeal of that order.
The Federal Court does not have equitable jurisdiction in these cases. You have heard a lot of submissions with respect to the six-month rule, and I will not belabour that issue. I understand that there are different positions with respect to the threshold for in-Canada convictions.
Foreign convictions and foreign commission of offences is fundamentally different. In Canada, there will be a trial; the overall situation will be looked at by the Canadian justice system. I will give you some quick examples of cases or situations where this could come up.
A 19-year-old uses fake identity to get into a bar in the United States. For uttering a forged document, under section 368 there is a maximum penalty of 10 years. If you admit that to an immigration officer, you could be referred to the board, and the board would have no choice but to issue a deportation order. One would hope an officer would not do that. One would hope that an officer would be reasonable and would not refer someone to the board in those situations.
It is the same thing with respect to writing an NSF cheque. You write a cheque with no serviceable funds. Section 362 provides for a 10-year penalty. You could be found inadmissible with no appeal. There are a number of other examples that I could give. I can refer to those later, as my time is up. However, if you are to make one change to this legislation that I would submit is not particularly controversial, I would urge you to remove the last parts of that clause.
The Chair: Thank you.
I will now invite Mr. Pagtakhan, who is a lawyer and is appearing, again, as an individual.
R. Reis Pagtakhan, Lawyer, as an individual: Thank you, Mr. Chair. Let me start out with an outline of my presentation. In my view, there are portions of Bill C-43 that deserve support, portions that should be amended to reflect greater fairness, portions that should be eliminated and portions that will necessitate some further study.
The portion of the bill that deserves support is the provision that eliminates the right of permanent residents to appeal removals to the Immigration Appeal Division for sentences of six or more months in prison. While some argue that this unfairly penalizes long-term permanent residents, what is missed in this argument is that the only persons who face deportation are criminals.
It should be stated that these individuals who would face deportation are not alleged criminals. They are not merely accused. They are not innocent. They have been convicted of a crime in a court of law. Senators should keep in mind that to be found guilty of a crime, an individual must not only commit a criminal act, they must have knowledge of what they are doing. Unless this combination of factors is found, there is no crime.
Senators should also keep in mind that criminals could avoid deportation by simply being law abiding. Our Canadian Criminal Code is designed to codify what we, as Canadians, view as criminal behaviour. These individuals have chosen the path of criminal behaviour.
In addition, these criminals were given due process, as required by our court system. Senators should keep in mind that these criminals were initially presumed innocent, were given their rights under the Charter to defend themselves, were found guilty by a jury of their peers or by a judge, and lost their appeals.
Furthermore, we are not talking about criminals who have received only alternative sentences, fines or probation. We are talking about criminals who have not only been sentenced to jail but sentenced to at least six months in jail. We are also not talking about criminals who did not have the ability to argue their immigration status at the time of sentencing.
In March, the Supreme Court of Canada decided the Pham case, which said that collateral consequences related to immigration may be relevant in tailoring the sentence. The Pham case was a case where a convicted criminal sought to have his sentence reduced by one day so he could appeal his deportation to the Immigration Appeal Division. In Pham, the Supreme Court said that while collateral immigration consequences may be relevant in sentencing, sentencing processes should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences, such as deportation.
In essence, the court is saying that when a court pronounces a sentence, it has to be a fit sentence. If a sentence must be fit, since immigration consequences should be taken into account when sentencing, the immigrant who commits the crime will be facing a just penalty. That is where the difference is.
It should also be remembered that, in addition to immigration consequences, a sentencing judge will consider other factors when arriving at a just sentence: the victim impact statement will be considered, the evidence of the crime, the evidence of the police officers and the witnesses and the argument of defence counsel. As a result, the decision of the judge will be balanced. There is no necessity for an additional appeal in a non-criminal context.
I should also say that, from a value perspective, immigrants and Canadian-born individuals should respect the law. People who break the law face consequences that we call justice, and that is following prosecution in this country, not persecution. As everyone is presumed to know the law, a person should be on the right side of the law or otherwise face the consequences.
One portion of the act that requires amendment is the five-year bar that will be imposed on a foreign national for misrepresentation. Unlike the criminal provisions, the misrepresentation bar can penalize an innocent individual because an immigration misrepresentation can occur without an applicant's knowledge. There are cases where misrepresentations are found when the applicant is the victim of a shady representative who acts without the applicant's knowledge. In these cases, Bill C-43 would penalize the innocent. A simple amendment to Bill C-43 that would result in the bar applying only to misrepresentations made knowingly would be fairer and more consistent with Canadian values.
The portions of Bill C-43 that should be removed are the paragraphs that would allow the minister to deny entry to temporary residents on the basis of public policy. This approach is troubling in that ministerial discretion opens up the possibility of decisions being made without clear criteria. Canadians are entitled to know what actions could cause a person to be barred from Canada.
In the departmental backgrounder that was published in June of last year, the department cited the example of the minister barring a foreign national from entering Canada who would promote violence against religious groups. Promoting violence is criminal. As a result, these individuals should be arrested and charged. However, the decision on arrests should not be made by a political actor, such as the minister, but by professionals in the judicial system, the police and Crown attorneys. If the conduct of the foreign national is criminal, he or she should be arrested in Canada, not barred or prevented from entering Canada when there is no evidence that the actual criminal activity has occurred.
The last aspect of Bill C-43 I will touch on relates to employer compliance with temporary foreign workers. I realize that clause 37 deals only with the ability to create regulations with respect to foreign workers and their employers. I also realize that, before these regulations would be adopted, Canadians will have the ability to comment. However, I would recommend to senators, because of the potential scope of these changes, that Parliament, not simply the government, should study the proposed regulations and hear from business, labour and other groups to ensure that the will of Parliament will prevail. There are over 180,000 foreign workers in the country at any point in time. To leave this decision as a regulatory decision with the Governor-in-Council is not appropriate. That is why further study will be needed. The effects will be long range and will impact many individuals.
Mr. Chair and honourable senators, thank you for this opportunity, and I am open for questions.
Sharon Rosenfeldt, President, Victims of Violence: Good afternoon, honourable senators. Thank you for inviting our organization, Victims of Violence, to present to you today. We are appearing today in support of Bill C-43, An Act to amend the Immigration and Refugee Protection Act, or the Faster Removal of Foreign Criminals Bill.
Our mission is to promote a more balanced justice system through legislative action and public awareness. Victims of Violence was founded in 1984 to advance the rights of crime victims and enhance the safety of all law-abiding Canadians by addressing problems in Canada's criminal justice system. Victims of Violence has worked with government for three decades to ensure that public safety and the voices of victims of crime receive due consideration. Our work on behalf of victims of crime sometimes overlaps into various ministries, such as is the case today.
The government's action to date is that they have indeed listened to victims and to law-abiding Canadians who want our laws to differentiate between the majority of offenders for whom rehabilitation is a realistic option and the repeat offenders for whom the justice and corrections system is a revolving door, which does include foreign individuals who repeatedly break our laws. We feel that, in the long run, the measures in Bill C-43 will not put more foreign criminals in jail but rather the bill will keep the right people in Canada, and that is what crime victims have been asking for.
Is Bill C-43 the be-all and end-all to society and immigration and refugee problems? Of course not. Building an effective immigration system is a key component of any and all safe communities in Canada. Therefore, power must be exercised usefully, and that is to promote the greatest well-being of its citizens.
We see Bill C-43 as a long-awaited piece of legislation, which, in part, is designed to facilitate and make easier the entry into Canada of legitimate visitors and immigrants, while giving government stronger legal tools to not admit into Canada those who may pose a risk to our country, and — most important to crime victims — to remove from Canada those who have committed serious crimes and been convicted of such crimes by our judicial system.
We agree with Minister Kenney who states that the vast majority of new Canadians will never commit a serious crime and therefore have no tolerance for the small minority who do and who have lost the privilege to stay in Canada. We also agree with Minister Kenney about due process and natural justice in the rule of law and that even serious convicted foreign criminals should get their day in court and that they should benefit from due process. However, Minister Kenney does not agree that they should get endless years in court and be able to abuse our fair process. Victims of Violence is in agreement with the minister. With this bill, an end would be put to that abuse.
We feel that this bill sets a clear agenda to act decisively, as it is the right thing to do for our country and its law- abiding citizens. It sends a message that the rules of engagement have changed in Canada and it will not be business as usual for individuals to come to Canada and break our laws.
I wish to bring to the attention of the Senate committee an issue that I hope will be taken into consideration when making your decision in relation to Bill C-43. I would ask you to consider the cost that crime has on victims. The cost of violent and serious crime not only consists of taxpayers' dollars, but the loss of human life, loss of family, loss of law and order and the loss of faith in the criminal justice system. In 2008, the Department of Justice released a report that estimated the costs of crime. The report stated that the tangible costs, including police, court, corrections, health care, victim rehabilitation costs, et cetera, were approximately $31.4 billion, while the intangible costs, such as pain and suffering, loss of life, et cetera, were over double that, at $68.2 billion.
How to handle permanent residents who become criminals instead of citizens has been a decades-long problem for governments. When legislation was changed in 2002 to make it easier to remove such offenders, the law was toughened to include the now contentious two-year clause. The two-year rule also raised an unusual and very controversial question for the courts. Should judges show leniency by lowering a sentence to two years less a day in order to preserve an immigrant's hopes of staying in Canada? The answer in some cases is yes and, according to the victims that we deal with, it is happening across Canada.
We think it is wrong that some judges in appeal courts choose not to follow the rule of law, when an appeal court can lower a sentence by 18 months just so the offender can plead his case before the IAD, while the victim suffers for months in the hospital and is still rehabilitating and in the meantime has learned that the offender, while awaiting his IAD hearing, has been re-arrested and charged with seven other serious crimes. That, in my estimation, is what brings the system into disrepute.
According to testimony that I have heard before the House of Commons and Senate committees in relation to the Supreme Court of Canada, how they may view this legislation is yet to be determined. However, the Supreme Court of Canada should be viewed as a shield in whatever ruling they make and not be used as a sword by some to make a point.
In closing, we believe that Bill C-43 provides Canada's immigration system the vehicle to address the very real and immediate needs now facing the Ministry of Citizenship and Immigration and to prepare the system for possible new challenges anticipated in the future.
We strongly believe that if all the amendments in Bill C-43 are supported and implemented, the safety of Canadians will be further enhanced.
All Canadians have a right to live in safe communities. Threats to that right should be addressed swiftly and effectively by the Ministry of Citizenship, Immigration and Multiculturalism.
The Chair: Thank you all very much. I will now open up the floor to my colleagues. I will begin with Senator Eggleton.
Senator Eggleton: Picking up on the last presentation, from Ms. Rosenfeldt, I doubt that this legislation will do what you want it to do because the minister is just removing the Immigration Appeal Division portion, not the opportunities that many people have to go into the court system at great length to delay their removal from Canada.
When we started this we heard of some cases that, yes, are severe; people should not be allowed to go through a system and drag a matter on for 10 or 15 years prior to their deportation, but I doubt this measure will change that at all. Instead, this bill is denying people access to the Immigration Appeal Division, which is one of the shorter processes, by the way.
Starting with Ms. Mangat, the question of the mandatory CSIS interview, you are concerned about "an unchecked fishing expedition" as you call it. You say the current obligation is referred to as "reasonably required" and that is being removed here. What are some examples of things that you could see the possibility of a CSIS interview venturing into that would be inappropriate? I am looking for some examples.
Ms. Mangat: Thank you for the question. I am not sure that section 16, which is in respect of an obligation to attend and provide information to an immigration officer, is being changed. This is adding an additional obligation for CSIS interviews. Just on that point, I do not think that section 16 is changing in that respect.
Regardless, there are, I think, a number of possible ways that a CSIS interview could go, one that does not have any parameters on what the CSIS agents are allowed to ask this person. If it is wide open and they are allowed to ask them pretty much anything under the sun, they could potentially be in the unenviable and uncomfortable position of trying to provide CSIS with information about other activities going on abroad that they may or may not have any knowledge of really. Is the information being generated in that process even going to be reliable? Who can say? If you do not put some sort of limitation that is reasonably required for the purposes of the application that the person is undertaking, you are opening it up to any kind of questioning from CSIS agents who, I think, would be in a position of power and authority over the individual. They might ask about anything else that the person may or may not have any knowledge of.
Senator Eggleton: Section 16 you say stays in and that says "reasonably required."
Ms. Mangat: That is for an interview with an immigration officer, not with CSIS.
Senator Eggleton: That provision does not apply to CSIS, then?
Ms. Mangat: The "reasonably required" does not. The language with respect to CSIS I think is wide open.
Mr. Edelmann: I have had experiences interacting with both CBSA and CSIS. Often there will be questions for information-gathering purposes, for larger intelligence purposes that have nothing to do with the application in front of them. To give you an example, if someone arrives in Canada using human smugglers, that person is commonly asked a barrage of questions by CBSA for intelligence-gathering purposes that have no relevance to the person's personal situation.
An example where it would be of interest to CSIS would be with respect to foreign agencies. Someone who comes here from Palestine, for example, may have knowledge or connection with different groups from Iran or other places where CSIS would be gathering foreign intelligence through the person and the person would then be put in the unenviable position of having to decide whether to comply with their obligations under the act or withhold this information, but at this point that is a choice they can make; they can choose to cooperate. Many people do choose to cooperate. Like citizens, we choose to cooperate with CSIS in many cases and may well choose to cooperate. This would create an obligation. It is quite different.
Senator Eggleton: Let me ask you something about the measure you are concerned about. The phrase that is described in paragraph 36(1)(b) or (c), in clause 24 of the bill, also eliminates humanitarian and compassionate grounds. That is not applicable in this case? You are saying it would all be automatic?
Mr. Edelmann: To be clear, when we are talking about humanitarian and compassionate grounds, we are talking about section 25. That deals with applying for permanent residence. When we are dealing with section 64(2) we are talking about people who are already permanent residents who are at risk of losing it. In those circumstances, once the matter is referred to the board, the referral is done by an immigration officer and the immigration officer may or may not take other factors into account in deciding to make the referral. At that stage, there may be other considerations. One would hope that an immigration officer would be reasonable in taking those things into consideration. That is not, unfortunately, always the case.
Once a matter has been referred to the board, the immigration division has no equitable jurisdiction. Only once it gets to the Immigration Appeal Division is there equitable jurisdiction. When we are talking about humanitarian and compassionate concerns that is what we would refer to in the board as "equitable jurisdiction." That is only held by the Immigration Appeal Division, not by the immigration division.
Under this change, there would be no access to the Immigration Appeal Division. Therefore, it would end at the Immigration Appeal Division. The deportation order would be in effect at that point. That person would have lost their permanent residence status at the point of going to the immigration division. Does that answer your question?
Senator Eggleton: I will think about that.
Mr. Pagtakhan, you started off by saying if someone is found guilty of something they are criminals. They do not deserve to have this appeal process to the Immigration Appeal Division.
With previous witnesses we have had discussion about big fish versus little fish, where we are talking about people of serious criminality. That is what the minister also referred to as serious criminality, but when you get down to six months, there is the possibility, particularly when you remove the portion about the conditional sentence, house arrest, things like that, that sometimes people get a more extended sentence if they are getting house arrest. If they were going to jail they might get four months, but they might get six or seven months if looking at house arrest. There is concern about that.
The concern here is over what is serious criminality. For six months, it could be public mischief, causing a disturbance, trespassing, possession of marijuana, for example. These kinds of offences are not what some would consider serious criminality, yet they would be caught by this.
Are you just saying: Six months, you are a criminal, and that is it; you do not get the appeal? Do you have any concern about the little fish versus the big fish?
Mr. Pagtakhan: Senator, I will concede that sentenced to six months in jail does not mean serving six months in jail.
Where I see the difference, in terms of individuals who have been convicted of a crime, is that there is an appeal process in the sense that these considerations have to be taken into account by a criminal sentencing judge. Deportation is a collateral consequence. That was just confirmed by the Supreme Court of Canada in March. The Supreme Court has said — and I agree with the decision — that it has to be a just sentence, a fit sentence. It was not clear when the bill was first introduced, but it is now clear with the Supreme Court of Canada that collateral consequences must be taken into account, and specifically immigration consequences.
Senator Eggleton: Does that mean shorter sentences? For example, the Pham case, where he got one less day so that he could appeal, are you saying that will now become quite common? In other words, people who normally would get six months might get six months less a day?
Mr. Pagtakhan: I am saying that it is open to the accused to make that argument. If the sentencing judge accepts that — or, if not, the Court of Appeal or the Supreme Court of Canada — then that is what you will get. It is clear. That is the jurisprudence.
That is the position I take, that you will have a sentencing judge — and the Court of Appeal and the Supreme Court, potentially — taking into account not just the side of the immigrant who says, "Please keep me in the country because I have done all of these other good things." The sentencing judge sees the whole picture. They will take into account mitigating and aggravating factors. They will take into account the victim and the accused when they come up with what is a fit sentence. If the fit sentence results in a collateral consequence of no Immigration Appeal Division, I think it is a fit sentence.
Senator Jaffer: I would like to start with the last speaker, Mr. Pagtakhan.
You were talking about "fit sentence." Since you have studied this quite well, how do you think the court would take this into account? There are serious collateral consequences if someone loses their status. How do you think the judge would look at these sentencing principles?
Mr. Pagtakhan: According to Pham, if a fit sentence would be 10 years in jail, they will not drop it down to six months less a day. That is clear. It is where it will be reasonably marginal. In the Pham decision, the Supreme Court of Canada talked about a whole bunch of collateral consequences, not just immigration. They talked about looking at whether a person will lose their job. Will families be disrupted? Will the sources of assistance disappear for this individual, stigmatization, loss of financial or social support, et cetera. A whole bunch of things will be considered when coming down with a fit sentence. Immigration, which is a collateral consequence, will be considered as well. Collateral consequences are not mitigating factors, according to the Supreme Court, so they will also take into account mitigating factors.
I think you will see the Court of Appeal, Court of Queen's Bench, and criminal courts that will be able to take into account all of these things. My suggestion is that if the courts will be taking care of all this, why do we need to run it through a separate administrative tribunal? Someone is already looking at these issues.
Mr. Edelmann: I disagree with Mr. Pagtakhan. I appear in front of the criminal courts regularly in dealing with people with immigration consequences. The criminal courts do not understand or deal with immigration on a regular basis. I spend a lot of time trying to educate judges with respect to immigration consequences.
Pham was not about deciding whether or not Mr. Pham should be deported. In fact, the criminal court would be loath to do that. What Pham was about was whether or not Mr. Pham would get access to the Immigration Appeal Division, who may well have deported him. That is ultimately the question, namely, that Mr. Pham may now get access to the Immigration Appeal Division, and the Immigration Appeal Division may decide to deport him. That is a question for the Immigration Appeal Division to decide, because they are a specialized tribunal that understands the consequences.
One of the things I would say with respect to this question of whether or not it will make people safer, and with respect to the six-month rule, systemically, what we will see when you start to make permanent residence more and more precarious is that people will get their citizenship as soon as they possibly can.
You have had other witnesses here who have talked about whether people comply with stay orders from the Immigration Appeal Division. I can tell you from my experience that my clients, in comparing probation orders or other orders from the criminal courts, and stay orders from the Immigration Appeal Division, the compliance rate is astronomically higher with the Immigration Appeal Division because the consequences are absolutely devastating.
We talk about the comparison with a Canadian citizen. Many of my clients that are before the Immigration Appeal Division today comply with the stay orders because they have an enormous incentive to do so. Under this new legislation, they would have become citizens years ago. When you are talking about whether or not that will make people safer, I am not convinced that systemically this will make people safer, because we are not going to be talking about immigrants or permanent residents; we will be talking about citizens in the future.
Senator Jaffer: What concerns me with this bill and some of the other bills that we have before us in the Senate is that there is a cookie-cutter approach where everyone gets treated equally; it does not matter about their circumstances. When you take away the Immigration Appeal Division, you are treating everyone as equal. What was so special about the Immigration Appeal Division was that the equitable, humanitarian part could come in.
I would like both Ms. Mangat and Mr. Edelmann to comment on what this will do to people not to have the appeal. It really bothers me. I have been a lawyer for 40 years. Judges do make mistakes, and you need an appeal division. To take this away is very dangerous. I would like your comments.
Mr. Edelmann: With respect to equality, I think people should be treated equally. I do not think that everyone should be treated the same. Equality does not mean people being treated the same. Different people have different circumstances, they come to the point of committing a criminal offence in very different circumstances, and the consequences are very different for different people.
One of the things that the Immigration Appeal Division is able to take into consideration and that the criminal courts should not have to take into consideration — the criminal courts should be able to deal with the cases that are in front of them, with the question of retribution, rehabilitation and all the factors that go into sentencing. If someone will be deported, that should not be a punishment. I think that is fundamentally the issue we need to consider here, that this is not banishment as a punishment, and it should not be. If that is what this is about, then that is a fundamental problem, in my submission.
Ms. Mangat: I asked Mr. Edelmann to go first because he practices in this area, and I do not. I agree with what he says. Everyone has a different circumstance. What the Immigration Appeal Division does is look at that, and that is not what criminal courts do.
Criminal courts and sentencing judges are now told from the highest court in the land that they should look at the collateral immigration consequences that might flow from a sentence of now two years, possibly in the future six months. However, they are not specialized tribunals that decide all the issues around deportation. I do not think criminal courts or sentencing judges want that jurisdiction, and I do not think we should be giving it to them.
The notion that people in these circumstances have criminal justice appeals through our criminal court system is not really an answer to what is happening with the Immigration Appeal Division. Those are two different areas of our justice system, and we should not be saying, "We are already giving you due process in the criminal justice system, so that is it."
What the Immigration Appeal Division does is something specialized and different. To say that that will all be in the mix in front of a sentencing judge, who has a docket of I do not know how many thousands of cases, I do not think that is a full answer.
Senator Jaffer: May I ask another question?
The Chair: You may ask one more.
Senator Jaffer: Thank you.
What really concerns me about this legislation is that, for the years I used to practise it, you could always turn to the minister on humanitarian grounds; you could put the particular individual's circumstances in front of the minister. Now he cannot do that. Now that humanitarian grounds have been removed, the minister cannot consider humanitarian grounds when assessing for relief.
In such a case, this person has nowhere to turn; you just abandon a human being who is in Canada. Yes, they may have committed some offence, and I accept that, and they have been punished for that. However, to take away the relief from a minister on humanitarian grounds is very serious.
I would like both of your comments on that.
Mr. Edelmann: I agree that it is very problematic. Also, there will be broader systemic implications of taking away humanitarian relief under sections 34, 35, 37. Many of those sections have been upheld as being very broad on the basis that there is relief available. I do not know if those will be upheld going forward.
When we talk about these things, they appear serious on the face of it. However, one of the more recent section 37 cases I did was for a group of students who were selling fake bus passes on Craigslist. It is organized criminality; there is a pattern of criminality. They were selling fake bus passes for profit. It was organized crime, but we are not talking about the Hell's Angels. Those are some of the cases that are actually going before the board.
When we talk about what a section 37 case is, it is a very broad question. If there is no relief available, the breadth of those sections becomes problematic. I agree that it will be a serious problem going forward.
Ms. Mangat: I would agree with that. I think many of these provisions are upheld as constitutional because of that safety valve that exists with the minister having the discretion to look at humanitarian and compassionate grounds. When you take that out, you are taking something out that was part of why the provisions were constitutional to begin with. It will be an open question whether judges will continue to uphold those kinds of provisions where there is not that safety valve to have those issues considered.
There is something else I think other witnesses have spoken about — possibly not at this committee but maybe at the House of Commons: What about international obligations that Canada has under the Convention on the Rights of the Child, for instance?
These appeal divisions and the minister's review of humanitarian and compassionate grounds are where those issues come to the fore. If we take those out, are we then opening up a Pandora's box of things that will not be looked at and, therefore, will be really problematic?
As Mr. Edelmann said, I think the consequences of this go much deeper than what one might think on the face of it.
Senator Merchant: Thank you so much. Many of my questions have been answered. I have a lot of sympathy and empathy for victims of crime. I am a little concerned that sometimes we politicize some of these bills. This bill has the words "faster," "removal," "foreign," and "criminals." It is worded in such a way that you feel badly being so critical, as we are, but fear is not a reason. I think it was explained earlier that this may not make us any safer. I am very sympathetic to your pleas.
Ms. Rosenfeldt: Honourable senator, with all due respect, I certainly do not want your sympathy; no victims want your sympathy. What we want is to be safe in Canada.
I totally disagree. That is a red herring that has been thrown out to victims of crime over the past number of years. We are these fearful people or that we are just creating fear; that we are these angry, vengeful people. If you have to see and deal with victims of crime on a daily basis, you would definitely understand it in a different manner.
We are not talking about someone who has maybe been caught for a little bit of marijuana or whatever. We are talking about violent crime here. We are talking about assault with a weapon that carries a sentence of 13 months in jail. We are talking about possession of Schedule 1 substances for the purpose of trafficking, which is two years less a day. Sexual assault is 18 months.
If you had to work with some of these victims — and not all victims are harmed by people who are non-permanent residents — but why do victims have to put up with that when serious crimes like that happen? I do not understand. I do not understand your way of thinking.
I thank you for having sympathy for us, but that is not what we want. We want safety.
Senator Merchant: I am sorry; I will not dispute what you have said. You did not let me finish. I was going to say that you had presented a very even-handed approach. You said at the very end that this will not solve all your problems. I thought you had given us a very fair presentation.
I was not trying to be sympathetic, but you did not let me finish, so I will just not continue.
Ms. Rosenfeldt: I am sorry, senator.
Senator Merchant: That is all right. We are here to listen, and you have every right to present your case, and I appreciate you being here. However, some of these changes do concern me, because we have said that this is more of a one-size-fits-all approach.
Mr. Pagtakhan, you made reference to foreign workers, and I lost track of what you were trying to say. Would you give me some examples or explain further?
Mr. Pagtakhan: There is a provision in the bill that talks about enforcement provisions that employers or employees may face — "employees" being foreign workers. The provision in the bill says it will give the government the ability to adopt regulations. As senators know, regulations are typically not studied at a parliamentary level; they are done by the government in cabinet and passed that way.
When these changes to the foreign worker program come through — and these changes with respect to enforcement provisions that could affect employees and employers should be studied by Parliament — we must remember that there are hundreds of thousands of people who are foreign workers. With the immigration system being designed as it is now, unless you are family class, virtually all immigrants must be from an employer-driven stream, where the employer chooses the employee as a foreign worker. I think it is necessary to not simply have this be a regulation where the government makes a decision in cabinet, publishes it for 90 days, hopes people make submissions, and then the final decision is made by the two government departments and the ministers.
Further study is required, and that means having this committee and the House of Commons committee look at it, because this will have a major impact with respect to foreign workers. As we have seen in the media in the last couple of weeks, it is an issue that is alive for many Canadians, not only individuals who are foreign workers and their employers.
Senator Merchant: I think I will stop there. Thank you.
Senator Eaton: Thank you. Two of you seem to be quite concerned about collateral damage — deportation — but it seems to me you could look at it in another way and say that if you are a non-Canadian citizen and a permanent resident, you might get a better deal at sentencing than a Canadian citizen, depending on the judge. The judge could say, "Oh my God, Peter will be deported. I have to give him six months less a day. You go to a provincial prison. On the other hand, Nicky Eaton is a Canadian citizen. I will give her six months plus two weeks, and she will go to a federal prison."
I do not understand why you are both so upset about the collateral damage. Surely the sentencing should fit the crime, and if it is over six months and the person is deported, all we ask of non-Canadian residents is to obey the law and to live in Canada. What is so onerous about that?
Ms. Mangat: The Pham decision that Mr. Pagtakhan spoke about does not say that the immigration consequences should sway the judge one way or the other. Those consequences should not be allowed to skew the process, either in favour of or against deportation.
Senator Eaton: That is right.
Ms. Mangat: I am fine with that. I think that is great. I like the Pham case. I think Pham is good law. I think that immigration consequences are one factor, and sentencing judges look at what is the global situation when they are sentencing someone. They are empowered to do that under the Criminal Code; they are supposed to be doing that. I think that, as with many other factors that go into determining how a person should be sentenced, the immigration consequences are one of those.
I am not saying that judges should not sentence people to more than two years if that is the fit sentence. I am saying that if you change the two-year bar to a six-month bar, first you will capture many more people, but you will not necessarily capture the type of violent crime that Ms. Rosenfeldt was discussing earlier. Not only that, but you are taking away the Immigration Appeal Division. It is not that I am overly concerned with letting people who ought to be deported stay in Canada. I think that people who ought to be deported ought to be deported, but I think that we need to have procedural fairness and due process in place to ensure that we are getting rid of the people that we ought to be getting rid of and not just everyone.
Senator Eaton: Is it too much to ask someone to remain crime free in this country to be able to live here as a permanent resident?
Ms. Mangat: No, I do not think it is too much to ask for people to be crime free. I think we should all be crime free. I certainly do not go out and advocate people break the law. I am crime free myself, and I think everyone else is here, too. I am not saying that people should be allowed to break the law and get away with it somehow.
Senator Eaton: Yes, but you seem to be making a case that this is so mean.
The Chair: Let us have Mr. Edelmann come in, senator, and then you can rephrase, if you wish.
Mr. Edelmann: To explain, from a practical perspective, from the court's perspective, there is actually a fundamental difference between the two-year rule and the six-month rule. The reason for that is because the two-year threshold is already a very important threshold in the criminal courts. Generally speaking when you are talking about ranges of sentences, once you start to get into the range of two years, the next step up will be three years, then four years and then five years. You are not talking about small differences. Pham is a case about two years versus two years less a day. It is that one day that makes the difference not as to whether or not the person is deported, but whether or not the person gets access to the Immigration Appeal Division. As I said, Mr. Pham may well be deported. That is a decision to be made by the Immigration Appeal Division. That is something that the criminal courts are just not equipped to deal with, nor should they be dealing with that question.
With respect to the six-month rule, it will be a substantial problem, in my submission, because the difference between five months and seven months is within the range of a given offence. For someone who has an offence that is around six months, the range could be two to nine months. Pham says that you can consider immigration consequences among others, but you cannot go outside the range for that offence.
The problem that you will have with the six-month rule is that the range will cover a substantial portion around six months on many offences, as opposed to the two-year rule where the range tends not to cover the area around the two years. The range tends to be at two years, two years less a day, two years. You will not be looking at a range that is substantially over that, where someone's sentence is coming down from three years to two, because that is what the courts have said you cannot do.
Coming down from seven months to six months or six months less a day will be very realistic under the new system. I agree that that is not fair, and I agree that that is something the criminal courts should not have to deal with, but that is what this move from the two-year rule to the six-month rule creates.
Senator Eaton: In a way, it could depoliticize it, could it not? If you have a client in court, the judge gives him a sentence he thinks he deserves. He gets seven months, so he gets a deportation order, obviously, when he gets out of prison. It means that it is not dependent on who his mother was, how long he has been in the country, whether he went to school, or how nice a guy he is. It is very cut and dried.
Mr. Edelmann: All of those factors are taken into account in sentencing now anyway. What kind of job the person has, what kind of offender they are, are they a first-time offender, are they young, are they old — all of those are factors at sentencing anyway.
The question that will arise under the new regime is when a judge thinks seven months is the appropriate sentence for this offender, they will now have to say is seven months plus banishment the appropriate punishment for this offender? In many cases, the answer will be no, banishment is not the appropriate punishment for this offender on top of the seven months. Unfortunately, the only remedy I have as a criminal court judge is to give you six months less a day even though I think you should get seven months, as opposed to giving you seven months and sending you to the Immigration Appeal Division and letting them deal with it. That is what would happen now.
The Chair: I think those points have been made clearly. I will let Mr. Pagtakhan and Ms. Rosenfeldt have a quick comment on this, but keep it focused.
Mr. Pagtakhan: What Mr. Edelmann says is correct, but I have a different perspective on it.
The criminal court judge will take into account all of these things. They will also take into account the range of sentence, as Mr. Edelmann says. Yes, you may have a situation where a Canadian citizen may get a seven-month penalty while a six-month less a day penalty will go to a permanent resident, but that is because that is the law. Immigration is a collateral consequence, and in March the Supreme Court of Canada said they have to take that into account. Where I differ with Mr. Edelmann is I say let the criminal court make this decision. Maybe they do not want to talk about immigration. Well, the Supreme Court has said you have to think about immigration. There is no other choice. Every sentencing judge now has to do this. The sentencing judge, as opposed to an Immigration Appeal Division member who just sees the point of view of the permanent resident, will get a chance to weigh the point of view of the accused versus the victim. He or she will get a chance to weigh all of the evidence, having seen all that in front of him or her as the judge, and then will make the decision on what is a fit sentence. The key thing is that it has to be a fit sentence, and the immigration consequences must be taken into account.
The Chair: Briefly, Ms. Rosenfeldt?
Ms. Rosenfeldt: I agree with Mr. Pagtakhan. My only comment was I think we cannot lose sight of the differences between the sentences that would come in at six months and the sentences that could be given for 12 months, 18 months, and what those types of crimes are. I do not think we can forget that.
The Chair: I think this has covered this issue very thoroughly. There are differences of opinion, very clearly, but the points have been made very clearly, I think.
Senator Seidman: If I might, I would like to get some clarification on the negative discretion clause. I think maybe all of you, or most of you, referred to it. The minister's role, as it is outlined in the bill, has been made more transparent. I am not sure if you are aware, but there was an amendment in the House of Commons to the original bill that requires the minister now to set out the public policy considerations that led to the making of the declarations.
I think one of you also mentioned something about the lack of criteria, that there are no criteria set out. I believe another issue that was resolved in the House of Commons is that there is now posted on the Citizenship and Immigration Canada website the list of criteria that are used. There has been an attempt to make this more transparent. I would like your comments on this, if I might.
Ms. Mangat: I think it was me who had made those comments in my presentation.
I am aware of the guidelines. I did go to the minister's website and I found them. They were not as easy to find as I would have liked, but I did find them.
My comment to that is that if these are guidelines that the minister and the minister's staff are putting together, then they are open to change. They are open to being added to and subtracted from. Additional factors could be put in place.
I looked at the guidelines, and they are not entirely clear to me. It is definitely better than not having any information about what public policy considerations the minister will take into account, but there are still some questions in those guidelines. They are not super-clear to me, but that could be something that is up for interpretation at some point.
My main concern is that if we do not see those considerations outlined in the law, then they are subject to change. This will bind not only this minister but all ministers to come. That is my concern in that regard.
The Chair: Carry on, senator.
Senator Seidman: Okay, fine, thank you.
The Chair: If you want to respond, you let me know. Let us not look around to see if anybody else wants to say something. If you have a point to make, I will gladly let you make the point. I will let the senator ask another question. If you have something to add, you can signal to me and get on with it. We will not have dead air.
Senator Seidman: Thank you, chair. Just to continue along, perhaps it was Mr. Pagtakhan who expressed a certain degree of concern about the negative discretion. I would like to point out that Canada currently lags behind other countries in this area. In fact, the U.K., Australia and the U.S. all have similar if not even much stronger criteria and discretion for their minister. I do not understand the difficulties that you find with the negative discretion. I am trying to get at the essence that is disturbing you.
Mr. Edelmann: The concern around negative discretion is that although there have been some minor changes that were made in the amendments, the public policy considerations are not, by definition, posted in advance. In other words, the ones that are posted on the website are not regulations and they are not published in the Canada Gazette. There is no public discussion that happens with respect to what those are. This is not law; this is ministerial fiat that can also be created post hoc. In other words, it can be created after the fact, "I do not like this person. I do not want to let him in. I will create the public policy after the fact to justify why I will not let this person in."
Having the rule of law is about knowing in advance what the rules are and having a public debate in a democracy around what the rules are and whether we agree with the rules. That is fundamentally what my concern would be with this section. We do not know what the rules are in advance. The minister could publish a whole set of different rules tomorrow after he has made a decision in somebody's case.
[Translation]
Senator Verner: On the topic of the minister's discretionary power of refusal, I am a senator from Quebec, and I would like to hear your opinion on a case that occurred in 2011.
The Quebec National Assembly unanimously passed a motion asking the federal government to prohibit two fundamentalist militants — whose names were Abdur Raheem Green and Hamza Tzortzis — from entering Canada, in order to prevent them from participating in a conference in Montreal. These two individuals were known to have expressed homophobic sentiments and made comments trivializing violence against women. How could the minister have responded to this unanimous motion from Quebec if not through his power of refusal?
Mr. Edelmann: Basically, the issue is whether the case is well-founded. Let us say that as Canadians we agree on the fact that this sort of person should not be admitted into Canada — and this is the debate that took place at the National Assembly; the participants in that debate agreed to say that these persons should not be let in here — what I am suggesting is simply that the criteria be defined. If hate-mongering remarks, homophobic comments, certain points of view or certain ways of saying things are problematic, a debate must be held in order to define the issues and say that in this type of case, the individual will be denied entry.
It is problematic to simply give an open discretionary power to the minister who can define the rules after the fact. That is basically what I am submitting to you.
[English]
Ms. Mangat: These were individuals who wanted to come to participate in a conference. As Canadians, we have to decide if we stand for free expression. If these individuals had made homophobic comments or comments against women, then we have hate crime laws in Canada that would have been applied to these individuals. It does not matter that they are not Canadian residents or citizens. If they are on Canadian soil and breaking the law, they are breaking the law. I do not think the answer is that we do not let people in because we do not like what their message might be.
Senator Verner: We disagree on that.
Ms. Rosenfeldt: In our organization, we have gone through this bill, and I have stated that we totally agree with everything that is in there. I would totally disagree with that as well. We have to have some faith in the minister, and it does not really matter which party it is. We have to have some faith that the minister will act in the best interests of Canadian citizens.
[Translation]
Senator Verner: I would add that I have before me the guidelines concerning this new power of refusal, and among other things, it indicates quite clearly that among the criteria used to deny entry is the fact that the individuals must express views that "counsel, encourage or incite others to commit terrorist activity or terrorist violence," or promote or glorify terrorist violence. In short, there are a series of criteria; but that is the case I wanted to submit to you today. Thank you.
[English]
Senator Dyck: Thank you for your presentations this afternoon. I wanted to follow up on the six-month sentencing subject. People were starting to describe what types of offences or crimes would be involved in that. Ms. Rosenfeldt, you were talking about serious crimes, such as sexual assault and so on. However, with a six-month sentence, what sort of criminal behaviours are we dealing with? Could someone give me an example of what sort of activities would constitute a six-month sentence?
Ms. Rosenfeldt: Some of it could be criminal harassment. I do have a written list. While I am looking for it, Mr. Edelmann, do you know any of the crimes?
Mr. Edelmann: We are talking about two different things. One is with respect to what kind of crimes could, in theory, have a maximum six-month sentence. Senator Eggleton was referring to some of those. Then there are the ones where you would actually be getting a six-month sentence. One of the problems is that there are significant differences in sentencing regimes across the country. Therefore, what you might get a six-month sentence for in Alberta, you would never get a six-month sentence for in B.C. or Quebec.
When you are dealing with three- and four-year sentences, the sentencing tends to be more even across the country, but when dealing with the lower sentences, in Alberta in particular, the threshold would be relatively low for the types of offences you would be talking about. In Quebec, the threshold would be relatively high; you would be dealing with more serious types of offences, in general, with respect to the cases that you will see coming out of those provinces.
Ms. Rosenfeldt: The biggest thing with this bill, in particular regarding the six month or two years, is that it really catches the more serious crimes that are in between six months and two years. They are very serious crimes.
I do not know what else to say. It is those types of crimes, like assault and assault with a weapon — there is a whole rift of crimes that are between the six months and two years that we are missing.
Senator Dyck: That is what I was trying to get at. If people are being sentenced to six months, they might be committing something that is not as serious as sexual assault or so on, because that sentence presumably would be higher. If we are trying to promote safety, then is safety an issue when the sentence is six months? Is it as serious a safety issue if the sentence were longer?
It worries me that if we are saying the six-month sentence varies across Canada, we are putting into legislation something that has a different meaning depending on where we live.
Ms. Rosenfeldt: There are sentencing guidelines. I am not too sure where Mr. Edelmann is coming from with the vast discrepancy.
Mr. Edelmann: To be clear, the sentencing guidelines —
The Chair: I do not think we want to make too much of this. That is a fact of life. The point needs to be made and you make the inference to it, but the debate over it as to the nature of the judicial system in Canada is not where we want to go. Keep the focus relevant to the bill, as has happened thus far.
Mr. Edelmann: Sentencing regimes in Canada tend to be reviewed by the courts of appeal. It is very rare for the Supreme Court of Canada to deal with a sentencing case. The ranges of sentences are set by the courts of appeal in the individual provinces, and so we see different sentencing ranges.
Six months is not a relevant threshold in the criminal justice system; it is not a threshold that has any meaning in the criminal process. Two years versus two years less a day is the difference between provincial jail and a federal penitentiary. It has enormous impact. Any criminal court judge is very conscious of the difference between sentencing someone to two years versus two years less a day, because one of them sends them to federal penitentiary, while the other keeps them in a provincial jail.
The six months does not mean to a criminal judge any more than seven or five months. It is a random number. It is very difficult to know what happens when you say, "What happens in six months?" In certain provinces, drug offences, for example, are taken very seriously, and six months would be a common sentence in Alberta or Saskatchewan for certain types of drug offences. However, you may not see those types of offences in places like Quebec or B.C.
I am not trying to be difficult. It is simply that there are actual differences in the sentencing regimes across the country. It is difficult for me to say what a six-month sentence is. It depends where you are, and it is more than just a fact.
Ms. Rosenfeldt: Hopefully this might clear this up. Minister Kenney said in 2002 when Parliament adopted the Immigration and Refugee Protection Act that it decided in its wisdom under the leadership of a former Liberal government to define "serious criminality" under the Immigration and Refugee Protection Act as a crime that had resulted in a penal sentence of six months or more. That is the law and we would not change the law in that respect. So —
Senator Dyck: If I could follow up —
The Chair: We are not going down that path. Mr. Edelmann explained it very well. Ms. Rosenfeldt made her point, and Mr. Pagtakhan made his.
Senator Dyck: I was going to ask a second question.
The Chair: Certainly. Please.
Senator Dyck: Thank you.
I think this was from your presentation, Mr. Pagtakhan, but I wanted to follow up on the issue of the minister being able to bar a foreign national from entering Canada if they were promoting violence against a religious group. Senator Eaton in her speech at second reading may have also mentioned this. She used quite strong language, saying that people who ejected toxins on Canadians would not be the type of person that we would allow in Canada. However, it also contradicts what is in the private member's bill —
The Chair: Senator, please ask a question of the witnesses.
Senator Dyck: With regard to promoting violence against a religious group, it sounds like Mr. Pagtakhan was saying that the person should actually have to be charged rather than be judged without any evidence or any criminal charge; you cannot just bar them. How would we know?
Mr. Pagtakhan: There have to be criteria, and when the criteria are public policy developed by one government department it does stand the test of saying, "This person cannot come into the country." I agree with Mr. Edelmann and Ms. Mangat in the sense that you would like to see something at a level of regulation or an act, where the criteria are objective and cannot be changed on a whim. If there are criteria, I will accept them. I would like to see what the criteria are on that level, and then I will make my comment.
In terms of someone who comes in and wants to advocate violence, I agree with Ms. Mangat that we cannot read people's minds. Just because someone has a different perspective than me, and just because I would probably be very angry with someone who would make comments about violence against women or homophobia, as Senator Verner said, unless it is criminal — maybe we should invite them to this country, have them say what they say and then charge them. If we really want to make a point, let us put these people in jail. Let them see what Canadian values are like through the Canadian justice system. I think that makes a better point than saying, "We do not know what you will say; we think you will say bad stuff, so stay out of the country."
Senator Dyck: Are there any other comments?
I have one question related to that, then. If ministerial authority is not appropriate, what you would suggest be done? If the guidelines are open to being changed next week, what would your recommendation be with regard to new subsection 22.1?
Mr. Pagtakhan: Adopt regulations, at the very least.
Ms. Mangat: I would agree with that. It is important to note that, as far as I am aware, this bill is not the product of any extensive public consultation, nor has it been subject to any public consultation. I think if we have a minister who is speaking on behalf of the public with these public policy considerations, we need to have consultation. We need regulations at the very least.
The Chair: I wanted you to come to an answer on that.
Senator Enverga: Thank you for all the great presentations.
We have heard much about the humanitarian and compassionate rights and relief for criminals — those who committed the crimes.
Can we get more comments on the rights of the victims, and how do we balance all these grounds?
Ms. Rosenfeldt: I am not sure what you are asking.
Senator Enverga: We are talking more about the rights of criminals. I believe that all the victims have rights, too. How do we balance all these things in the light of this new bill?
Ms. Rosenfeldt: It is something victims have been asking for for many years. About the best we can do is take pieces of legislation that we feel will be in the best interests of victims of crime and support those.
Mr. Edelmann: I have two suggestions with respect to that.
First, I have already made the point that I am not convinced that a tool will actually go away as opposed to adding a tool to the tools we have to help rehabilitate people. That is the second point, from my perspective. When you are dealing with serious criminals, the ones that Ms. Rosenfeldt is here to talk about and that all of us are concerned about, when you talk about a very dangerous, hard-core sex offender, for example, what happens when they get out? Have you rehabilitated them? Or, if you deport them, what happens when you send a non-rehabilitated, unsupervised sex offender to Somalia, El Salvador or somewhere else? They do not suddenly get rehabilitated. They do not suddenly get supervised.
The question about the victims is that my neighbours are from the countries where we intend to send these people, where we intend to banish these people. The question that arises with respect to the victims — and this was not a popular issue when I brought it up before the House of Commons committee, either — is do those people matter? They do matter to the families. The people who are my neighbours do care about the potential victims in El Salvador, Somalia or other places. That is a question that I would submit you may want to consider as well.
Mr. Pagtakhan: Senator Enverga, I believe the simple answer to your question, in terms of balancing the right of the victim and the right of the accused, is done by the criminal court. They do the sentencing. They have to take into account all of these things. They will come up with a decision and the sentence will be fit. That is what the Supreme Court of Canada has mandated them to do.
Mr. Edelmann says that six months or six months less a day is a borderline that anyone takes a look at in the criminal justice system. I will agree with that.
I will also submit to you that, assuming the Senate passes this bill and Her Majesty's representative gives Royal Assent, the six months versus six months less a day will become important and will become a consideration because it has to, because it is the law, and judges must apply the law.
Senator Enverga: I understand there are rules to follow. What about the victims? Will they be better off if we deport them? Will they be safer?
Ms. Rosenfeldt: Certainly the victims would be. I totally understand what Mr. Edelmann is saying. What do we do with individuals like that? Another problem we are having in relation to rehabilitation is with foreign nationals who are involved, say, in terrorism or whatever, and they are sentenced to a crime in Canada. They are in our prison system right now. Corrections Canada is having a problem with it right now. How do you try to rehabilitate these individuals in the Canadian prison system? They are asking that. Do you keep them apart from others so they do not spread more of their hatred of Canadians? There are many issues here.
This is a long-standing issue. I do not know how to answer your question properly other than that it has been a long-standing issue.
There are victims' rights and ordinary Canadians citizens' rights versus people who break the law. In our eyes, it is black and white, and that is why we support this bill.
Senator Enverga: I was talking about your point about what we will do if they commit the same crime in their native country. Is it not our duty to protect our citizens first?
The Chair: Let us get back to the nature of the law. The issue is with regard to what it is that constitutes those elements that are recognized to give you the right to become a citizen in Canada. This is the issue around whether six months is appropriate. If you could keep your answer focused on the nature of the bill.
Mr. Edelmann: This is where the IAD is particularly important. One of my clients came to Canada when he was three months old. For various reasons, he ended up in the foster system, found himself involved in crime and is turning his life around at this point. He was three months old when he came here. He does not know his home country at all. In this case, he is not a dangerous offender, but if you were talking about a dangerous offender who came here when they were three months old, when you talk about banishing them or sending them back to their home country, talking about a home country is somewhat artificial. The other question is what happens when you do that? There are consequences to banishing someone, and the consequences are felt, maybe not here, maybe not directly; they are felt in those countries as well. Those are considerations I would encourage you to take into account.
The Chair: Mr. Pagtakhan will have the last remark.
Mr. Pagtakhan: I do not know Mr. Edelmann's client, but clearly he or she did not commit a crime when he or she was three months old. I am assuming that individual would have committed the crime when they were an adult. That is what we have to deal with.
I have sympathy for people who have been here all their lives, but Canadian citizenship has to count for something. If someone has made a decision, either inadvertently or intentionally, not to become a Canadian citizen, they have to suffer whatever is the consequence of not being a Canadian citizen, and they should have the right of their citizenship of choice.
Canadian citizenship counts for something. I believe Mr. Edelmann's client probably did not commit the crime when they were three months. If they committed the crime as an adult, they have to face whatever the consequences are.
The Chair: You both have made clear points with regard to the basis of the act. Thank you.
Senator Seth: A long discussion has been going on. My question may be a repeat. This question is for Ms. Mangat.
I see you have three major arguments. I come to your second argument. You have shown some concern about the lack of clarity on the public policy consideration that the Minister of Immigration should follow before banning a person for three years.
In your opinion, what public policy consideration should the minister follow? What should he be doing?
Ms. Mangat: I do not think the minister needs this negative discretion. We have nine grounds of inadmissibility in the legislation already. If a person is otherwise not inadmissible, then I think they should be allowed to come to Canada and participate in the conference and have the temporary residency for those kinds of activities, the notable examples of people who have been denied entry at the border — I am thinking of Mr.Galloway from the U.K. — were all people invited to Canada to speak. There may be other examples that I am not aware of.
My first point is that I do not think we need this public policy consideration, negative discretion for the minister. If we are going to have it, we cannot have it as it is in the legislation right now. We cannot have it be an open-ended, no parameters, no accountability in the act. Whether the minister is now going to file a report with Parliament to let parliamentarians and Canadians know when he has exercised this discretion, that is a good step. That is better than no accountability. That needs to be in the legislation, and it may well be. I have not seen the latest amendment.
In terms of the public policy considerations, I think that is something that all Canadians should have some say in. I do not think that should be the minister's decision or the ministers' adviser's decision, and I do not think that should be something that will possibly change from minister to minister.
As Mr. Edelmann said, I think the rule of law calls for us to know exactly what those considerations will be. To the extent we will have this kind of negative discretion, I think it should be in the legislation and not subject to guidelines. What kinds of things could the minister consider? When you ask somebody what is a public policy consideration, what does that even mean?
Senator Seth: Here is the question: If the minister has already banned for three years the person not to enter into Canada, there has to be good reasoning.
Ms. Mangat: I would hope so.
Senator Seth: That is why I am asking. Why should he not be allowed? Why should a minister not take this decision? Criminality must have been done, and that is the reason he is not allowing the person to enter into Canada.
Ms. Mangat: There are already nine grounds in IRPA that are reasons why people cannot be admissible to Canada, and those are those grounds of criminality. We are talking about people that our system has not found to be inadmissible already under IRPA. This is an extra power the minister is getting over and above the nine grounds.
If you are right and these are people who would otherwise be inadmissible under one of the grounds for inadmissibility in IRPA, then the minister should be using that ground. If not, then I do not think we need this catch- all discretion. I am not sure if I am answering the question.
The Chair: You have answered both sides of the issue.
Senator Martin: Many of my questions have been answered. I thank all of you for your presentations.
I want to go back to your presentation, Ms. Mangat, and the first concern you highlight regarding mandatory CSIS interview. You say it is unprecedented and contrary to Charter values. How would giving CSIS officials the power to ask questions of those impacted by this bill, who are persons who face deportation and are criminally charged, be violating Charter values? What subsection are you referring to?
Ms. Mangat: I am speaking of the right to privacy. I am not speaking to any particular section of the Charter when I say that. I am talking about people's rights to not incriminate themselves, their right to privacy and the right to silence. I am not saying that CSIS should not have any role in security screening. What questions is CSIS going to ask? It does not say that they will be relevant to the person's application. It seems quite wide open in the legislation.
Senator Martin: You mentioned that the term "reasonably required" is missing. However, in fact, that is quite arbitrary, too. It is what is reasonably required by the official who may be asking that question.
If I read this particular clause in the bill, the questions are for the purpose of providing advice or information to the minister. In this case, these are individuals that are criminals facing deportation. I am trying to look at it from the perspective of a Canadian looking at the situation. These are criminals facing deportation, and the institution or individuals that are looking at security and safety would have the right to ask questions on behalf of Canadians for the purpose of providing information to the minister. It seems reasonable to me, and I was curious what parts of the Charter were being violated by this particular measure.
Ms. Mangat: I agree with you that "reasonably required" can also be fairly arbitrary. That is what we have in section 16. I do not know if anybody was here from the British Columbia Civil Liberties Association when that section was being discussed, but that is what we have. If we already have that in the legislation and we are opening it up and letting CSIS interviews be part of this as well, we should at least have the same constraint.
My concern is that you will have people who will be called in for an interview with CSIS. They do not know why they have been called in. If they have been called in —
Senator Martin: They are being deported.
Ms. Mangat: It is not so much that it is only for people being deported. I think this will apply across the board to anyone who files an immigration application. I may be mistaken on that.
Mr. Edelmann: That was my point. Clause 5(2) of the bill specifically does not apply to the permanent residents we were talking about before. It only applies to foreign nationals who are making an application. It applies to people on the way in, not on the way out. To clarify that point, it applies to anybody who makes an application. This applies to anyone who shows up at our borders or at a port of entry, anybody who makes an application overseas, any foreign national and any refugee claimant. Everybody who makes an application to come into Canada would be caught by this clause, which essentially would give CSIS the power to question anybody who comes into Canada who is not a citizen or permanent resident.
Senator Martin: I think it would be red flagged. It gives them the power, but the application of it is within the context of what is happening. From the perspective of protecting Canadians, on a case-by-case basis, this is a power that would be an important tool to ensure that questions are being asked, information is being gathered and that the minister has all the information, as you say, to exercise whatever discretion. Also, in these situations, in terms of these interviews, whether it is recorded or videotaped —
Ms. Mangat: That is actually a point I was going to make in further response —
Senator Martin: They would have a process.
Ms. Mangat: I would presume so. I can only look at what is in the bill. I do not know what is in the mind of the people who will be drafting regulations or how it will interact with the CSIS Act. Are these interviews going to be recorded? If they are recorded, how are they recorded and how long are they kept? These are all things that are important and will need to be thought about.
Senator Martin: I agree with you on that, but also I feel this is an important measure or tool.
Senator Eggleton: I found it ironic. Mr. Pagtakhan mentioned that Canadian citizenship should account for something, yet Senator Eaton said it might mean a Canadian citizen could get a longer sentence than a non-Canadian citizen simply because a judge might have to take into consideration the immigration consequences and the possibility of deportation. I do not think most Canadians would like the thought that Canadians citizens would get a longer sentence than non-Canadians.
Following on that, Mr. Pagtakhan, you are saying the courts now have to take this into consideration because of a Supreme Court decision. We all know that the Immigration Appeal Division is far better to equipped to deal with immigration issues than the courts. I think it has been said that while they have to have some consideration for it, I would not think they would want to get into it deeply.
Would it not be better that they not be faced with this situation of having to weigh these facts and decide whether it is six months less a day or six months plus a day? Would it not be better to provide for the entity that has been set up to better judge these cases, the Immigration Appeal Division, to deal with them and let them decide? If they decide the person should still be deported, fine.
Mr. Pagtakhan: Senator Eggleton, I will disagree. At the Immigration Appeal Division, you will hear typically from the permanent resident who is facing the deportation, and they will indicate what their whole situation is. In terms of the balance, what is submitted in terms of the conviction, really what you get in a practical situation is the counsel for the Canada Border Services Agency saying, "Here is the conviction, which is why this person should go," and certainly they can indicate what was said in the judgment.
For a sentencing judge at a provincial court or Court of Queen's Bench, that individual will actually hear from the victim, assuming that the victim was not someone who was murdered, in which case we are well past six months. They will hear from the victim and the police. They will hear potentially from the permanent resident, depending on what they choose to do in terms of their right to silence. They will see all the evidence of the crime and will make the assessment of that versus the collateral consequences versus the mitigating circumstances with respect to sentencing.
I disagree with Mr. Edelmann. I think that a criminal court is probably a good place to look at this because you hear from everyone there, and that is the venue that has to look at it. Should the courts do this? Frankly, they have to. There is no choice anymore. The Supreme Court said that in March, and because they have to, they should.
The Chair: Mr. Edelmann?
Mr. Edelmann: First of all, I disagree with Mr. Pagtakhan with what happens at the Immigration Appeal Division. What happens at the Immigration Appeal Division is that the minister is represented, the minister appears there through counsel, and the minister presents what they want to present to the Immigration Appeal Division. If the minister is concerned about presenting the case of the victims and presenting the overall situation with respect to the offence, that is all evidence that can be presented to the Immigration Appeal Division and is usually presented by way of the decision from the criminal court, and the sentence itself speaks quite loudly to that effect.
With respect to the other information that Mr. Pagtakhan seems to think is before the criminal courts, I am sure Ms. Rosenfeldt would have some different views as to how much victims are a part of the process in the criminal courts. In my experience, first of all, most of these crimes do not involve victims who are able to come and testify in any kind of meaningful sense. When you talk about drug trafficking or certain types of theft and fraud offences, they are not necessarily victimless crimes, but they are not crimes where a victim will come in and testify.
In other types of crimes, we will have written submissions from the victim. It is very rare to have a victim appear in person, unless they have been a witness, but more than 80 or 90 per cent of our cases are dealt with by guilty pleas. They are usually not there to testify in front of the judge. There are written submissions, and those end up at the IAD in most of the cases that I have seen. The minister's counsel will be able to get the victim impact statements and put them before the IAD. Therefore, to say that none of that goes before the Immigration Appeal Division is a bit artificial. If that is the fundamental problem, then perhaps the minister should be doing a better job in front of the IAD.
Senator Eggleton: There has been a lot of discussion about the six months, and Ms. Rosenfeldt, you have talked about some criminal activities, and I understand that those are serious crimes. However, again, the six months can catch an awful lot of other people. Would it not be better that we talk about the specific crimes in the legislation that we think should be exempted from the appeal as opposed to tying it into this arbitrary number of six months?
Ms. Rosenfeldt: I do not really see too much difference than the previous two-year sentence. The only difference is that the six months will catch more people who have committed more severe crimes.
I am not sure, Senator Eggleton, that you could actually make a list, if I understand you correctly.
Senator Eggleton: You would name the crimes that you would exempt from the appeal process.
Ms. Rosenfeldt: It can get observed. It has been said that some 19-year-old university student who goes across into the U.S. and uses a fake ID could be possibly deported.
Senator Eggleton: Not possibly, automatically.
Ms. Rosenfeldt: Or will not have an IAD hearing. That is simply not true.
Senator Eggleton: What?
Ms. Rosenfeldt: That is a misdemeanor in the U.S., and it would be a misdemeanor here. No one in Canada would ever be sentenced to six months for doing that in the U.S.
Senator Eggleton: It is subject to a possible 10-year penalty, and it does not matter whether or not you get it. It matters that it is subject to that.
Ms. Rosenfeldt: No, I disagree with you, senator.
The Chair: We have heard disagreeing points on this throughout the hearings. This has been repeated many times. I will go to Mr. Pagtakhan and Mr. Edelmann to give their typically articulate point on this.
Mr. Pagtakhan: I hope I can be typically articulate for my last statement.
Senator, theoretically you can have a list. The Criminal Code is large, but you could put forward a list if you wanted to. I think it does a disservice to the individual who may be sentenced. If you put forward a list, there are people who may be sentenced to less than six months in jail because of other circumstances, collateral consequences, mitigating circumstances, who would then be caught in automatic deportation, and that is what I am concerned about. I would rather have a sentencing judge who sees everything and makes a decision on everything as opposed to an arbitrary or maybe not so arbitrary list where someone will be kicked out regardless of what happens just because they are convicted of a crime.
Mr. Edelmann: I find myself agreeing with Mr. Pagtakhan on that point, except for the factor of minimum sentences. I think that minimum sentences create a significant problem in this context, especially as they expand. We have seen a significant expansion in minimum sentences.
With respect to the 10-year rule, you have heard a lot of testimony with respect to that. I spend a lot of my time consulting with counsel, criminal counsel in Canada and in the United States with respect to inadmissibility. I can tell you that there is no question as to what the interpretation of the law is. Under section 36(1)(b) and 36(1)(c), it does not matter how the prosecution went forward in the United States. It could have been prosecuted as a traffic offence.
One of the most common situations I deal with is DUIs. In California, they are dealt with as traffic offences. They are the equivalent of a Criminal Code offence in Canada. It renders you criminally inadmissible. Now, a DUI does not render serious criminality, but it is a traffic offence in California, and many people do not declare them and think they do not need to declare it. However, the reality is that the way we deal with foreign convictions or foreign offences it does not matter how it was prosecuted, and with respect to committing an offence provision, it does not even matter if it was prosecuted at all. The person is inadmissible in Canada if the maximum possible offence here is 10 years.
The Chair: This bill and the discussions that we have heard have shown very clearly that there are very well-thought- out, well-articulated differences of opinion on the significance of almost every aspect. With regard to the issue we have been discussing, we have heard other matters and we have heard the minister's comments on it, so we have all of those different views before us to reach a decision with this bill.
I felt that all our witnesses today articulated very clearly the points that they wanted to make. I understood clearly the points they were making. Their conclusions differed on many issues, but their points were made extremely articulately. In other words, experienced people were articulating very thoughtful points with regard to a piece of legislation and were differing themselves in many cases. Sometimes they agreed, often they disagreed. I do not think that we could have had better witnesses to provide that kind of articulation, argument and thought to us than they have expressed today.
It is up to us to make a decision in the end, but on behalf of the committee, I really want to thank you for your appearance here today and the way that you have handled yourselves and attempted to help us with this bill.
With that, I declare the meeting adjourned.
(The committee adjourned.)