Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 39 - Evidence - May 9, 2013
OTTAWA, Thursday, May 9, 2013
The Standing Senate Committee on Social Affairs, Science and Technology met this day, at 10:29 a.m., to study Bill C-43, an Act to amend the Immigration and Refugee Protection Act.
Senator Kelvin Kenneth Ogilvie (Chair) in the chair.
[Translation]
The Chair: Welcome to the Standing Senate Committee on Social Affairs, Science and Technology.
[English]
As we are all aware, we are here today to deal with clause-by-clause consideration of Bill C-43. I will put the appropriate question to honourable senators in a moment, but I just want to inform you that we do have in the audience, in case there are questions that require further clarification, officials from Citizenship and Immigration Canada, from Public Safety Canada and from the Canada Border Services Agency.
The agenda has clause-by-clause as the item, so I will now ask you the appropriate question. Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-43, An Act to amend the Immigration and Refugee Protection Act?
Hon. Senators: Agreed.
Senator Eggleton: I have a general comment to make. The minister came before the committee and said that the intention of the bill is to deal with serious criminality, with people who have been running around the system and the courts for quite a number of years in a state far beyond what is reasonable, those who have a very poor track record in terms of their life in this country and the kinds of things they have been convicted for.
I do not think anyone would dispute that we need to move in a more expeditious fashion to deal with these cases, but the problem is that this bill does not do it. This bill still leaves in place all of the court proceedings that many of these people rely upon to keep their cases going. However, it does remove the one that is perhaps most meaningful to a lot of other people, and that is the Immigration Appeal Division where, in fact, there has been a conviction that results in a sentence of six months or more.
That begins to catch a lot of other people and to bring in unintended consequences. There are people who have not committed what the minister seems to refer to as serious criminality and who can now get caught. I, and I think others, have cited someone in possession of a small amount of marijuana or someone who was involved in trespassing or public mischief. Many things can result in a six-month sentence, or more, that would not be considered in the category of what even the minister was referring to; yet, they get caught by the law.
Honourable senators might say that the minister does not have that intent, but we operate on the rule of law, not on the intent of any given minister of any given political background at any time. We operate on the rule of law, and that is what we have to bear in mind here. In creating this wide net, as one witness said, we are catching not only the big fish but also a lot of little fish.
Many provisions in here do have those unintended consequences, and I will speak to them as I go along in terms of my various amendments. At the end of the day, I do not think this bill serves Canadians well. It does not do what the minister wants it to do. It will result in us hearing many different cases over time about which we will say, "That person should not have been removed from the country." They do not even get an appeal or get humanitarian and compassionate grounds considered by the minister because we have locked our hands. We have refused to give them that right, and yet, in many of those cases, we will read about them in the papers or see them on television and say: "That was wrong. We should not have taken that kind of a position. We should not have tied our hands behind our backs in many of these cases that were not the intention of what the minister said this bill was about."
I do not think this bill will ever be implemented, although at this point in time we do not know if that is the case. The reason I say that is that it will be challenged under the Charter of Rights and Freedoms. There are challenges that we have heard about from our witnesses here. We have to bear that in mind.
We are the body of sober second thought. Giving this bill sober second thought on the basis of what we have heard from the witnesses requires us to make a number of amendments to make this bill a reasonable one, not only to deal with the cases the minister thinks are necessary to deal with but also with people who will be caught here unintentionally.
The Chair: Thank you, senator.
Senator Eaton, do you wish to make any comment, or shall we proceed?
Senator Eaton: I would just like to say that I think the ministry and some of the witnesses answered our questions fulsomely and with clarity. I feel quite content that the law is there to protect people who are non-Canadian citizens in this country.
The Chair: Thank you both.
Honourable senators, Senator Eggleton and I had a brief discussion in advance. He has, as you know, provided us all with amendments that he would like to put forward. As a result of our conversation, I would like to ask leave of the committee to group clauses of the bill to put to you. I will stop prior to those numbers where Senator Eggleton wishes to make an amendment. If any other committee members have a question or comment about any clause, I will go back to that one if it is included in a group. In other words, we will consider everything that members of the committee wish to discuss today. Is that agreed as a procedure?
Hon. Senators: Agreed.
The Chair: Thank you. I will now proceed to put the required questions to honourable senators.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the short title in clause 1 stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clauses 2 to 4 carry?
Hon. Senators: Agreed.
The Chair: It is agreed.
Shall clause 5 carry?
Senator Eggleton: Clause 5 is the first of the amendments that I would like to move, and it arises from representation from witnesses before the committee. It deals with the requirement that this is not relevant to people in terms of criminal activity but to anybody that might be doing an interview with the Canadian Security Intelligence Service under section 15 of the Canadian Security Intelligence Service Act. The concern arises from the open-endedness of the provision to ask anything about anything. The concern expressed by witnesses was that this could lead to a fishing expedition and that we should include the words "reasonably required," reasonably required relative to the admissibility of the particular applicant into the country. I am suggesting that we add those words. It now says, "must answer truthfully all." All of "what" is the question. We should substitute that phrase with "answer truthfully reasonably required" questions. I move that as an amendment to clause 5.
The Chair: Honourable senators, Senator Eggleton has moved that Bill C-43, in clause 5, be amended by deleting, in line 14, "must answer truthfully all" and substituting, in line 14, "answer truthfully reasonably required." Is that understood by the committee? You have it before you?
Those in favour of the motion will so signify.
Senator Eggleton: Recorded vote.
The Chair: Is that agreed? Recorded vote?
Hon. Senators: Agreed.
The Chair: Thank you.
Jessica Richardson, Clerk of the Committee: Senator Ogilvie?
The Chair: No.
Ms. Richardson: Senator Dyck?
Senator Dyck: Yes.
Ms. Richardson: Senator Eaton?
Senator Eaton: No.
Ms. Richardson: Senator Eggleton?
Senator Eggleton: Yes.
Ms. Richardson: Senator Hubley?
Senator Hubley: Yes.
Ms. Richardson: Senator Jaffer?
Senator Jaffer: Yes.
Ms. Richardson: Senator Martin?
Senator Martin: No.
Ms. Richardson: Senator Merchant?
Senator Merchant: Yes.
Ms. Richardson: Senator Seidman?
Senator Seidman: No.
Ms. Richardson: Senator Seth?
Senator Seth: No.
Ms. Richardson: Senator Tannas?
Senator Tannas: No.
Ms. Richardson: Five for, six against.
The Chair: The motion to modify clause 5 is defeated.
I now need to put clause 5 to the senators. Shall clause 5 carry?
Some Hon. Senators: Agreed.
Senator Eggleton: On division.
The Chair: Carried, on division.
Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Clause 6 is carried.
Shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 8 carry?
Senator Eggleton: I have an amendment here. This is the one about policy reasons for denying someone entry. Nobody disputes that the minister should have the authority to deny people entry if they do not meet certain conditions. This has become quite controversial in terms of people like Mr. Galloway, the British MP who wanted to come into the country. There are other cases of this happening, as well.
The only desire here is to ensure accountability. We have had witnesses who have said that policy reasons are very vague, that they can change from one day to the other, and that the minister can adopt them and adapt them as he wishes. He has gone to the extent of putting the current policy considerations online now. However, again, it is the question of how much parliamentary or regulatory control, or accountability overall, there is in all of this, as opposed to just doing whatever a minister wants — and that can be the minister of any political party, at any time.
He also agreed to an amendment in the House of Commons relevant to an annual report. However, I would like to suggest a little tighter accountability than something that might come a year later as a line item, and that is to have that done within 30 days.
The amendment I am putting forward is to add after line two, on page 3:
(4) The Minister must, within 30 days of making a declaration under subsection (1) that a foreign national may not become a temporary resident, table in each House of Parliament a report on the reasons for the declaration.
The Chair: The amendment has been duly moved. I will now call for the vote. I assume we will have a recorded vote on each of these issues.
Senator Eggleton: Yes. You can just take the last recorded vote, whatever you wish.
The Chair: Are you moving "ditto"?
Senator Eggleton: Is that okay?
The Chair: The senator has agreed to a recorded vote being identical to the previous. Is there any objection?
Hon. Senators: Agreed.
The Chair: I declare that the amendment is defeated by a vote of six to five.
Senator Eggleton: By the way, when I was Mayor of Toronto, I would get dozens and dozens of amendments on the floor, and everybody wanting recorded votes, and it was easier to say, "Well, okay, it is the same recorded vote."
The Chair: I could have some fun with that one today, but I think I will move on.
Shall clause 8 carry?
Some Hon. Senators: Agreed.
Senator Eggleton: On division.
The Chair: Shall clause 9 carry?
Senator Eggleton: I can take clauses 9 and 10 together. Clauses 9 and 10 eliminate the possibility of considering humanitarian and compassionate considerations and whether to deport individuals from Canada for national security, terrorism or organized crime categories of apparently serious admissibility.
Again, there are different cases that require some discretion. For example, a long-time permanent resident could have come here as a child. Yesterday, we were talking about a child who might come here at three months of age and who may have gotten into trouble later, such as getting involved with a youth gang. That does happen in this country.
However, when one looks at the possibility of rehabilitation of that person, the strong ties they have to this country, having come here at such an early age — so they would not have any ties to the country they were born in just a few months before — and if there is some proof of successful and positive contribution to Canadian society, then why would we not allow that to be considered? It is being shut out by adopting this thing in clauses 9 and 10, because the possibility of consideration for humanitarian and compassionate grounds is eliminated.
There was one illustration given by the Canadian Council for Refugees, and that was of an Iranian girl. This is a real case. As a teenager, she was involved with an opposition group in Iran. She attended meetings, went to demonstrations and handed out flyers. Due to those activities, she was arrested and imprisoned for five years in the infamous Evin Prison, where she was also tortured. She later fled to Canada. However, she has been found inadmissible on security grounds because of her association with a banned group between the ages of 14 and 16.
When people get involved in anti-government matters in oppressive societies like Iran, sometimes they do get involved at a young age. They might have had some involvement with a group that is considered a banned group. On the other hand, all that she did was hand out flyers and attend meetings. She then comes here as an adult, but because she was, a member of a banned organization as a teenager, she has been found inadmissible.
Would it not make sense for the minister to be able to look at this particular case on compassionate and humanitarian grounds and see if it is valid for her to stay in this country? However, that is what is what is being eliminated here — no chance, send her back to Iran. To Iran? My goodness, I would hope not.
By squeezing the alternatives here, very deserving cases will not get the kind of consideration they should.
I move that we strike clause 9 and clause 10 of the bill.
The Chair: The motion is on the floor. Senator Eaton? No further discussion? I will call for the vote on the motion.
Senator Eggleton, do you wish to have the vote recorded as previous?
Senator Eggleton: A recorded vote, if my colleagues are in agreement.
The Chair: Is that acceptable to the committee?
Hon. Senators: Agreed.
The Chair: The amendment is defeated by a vote of six to five, as recorded on the original vote.
Shall clauses 9 and 10 carry?
Some Hon. Senators: Agreed.
Senator Eggleton: On division.
The Chair: Carried, on division.
Shall clauses 11 to 15 carry?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 16 carry?
Senator Eggleton: Regarding clause 16, the issue was raised by witnesses that under this bill a person who misrepresents their application can be removed from applying for five years. It is currently two years. As has been pointed out, sometimes people go through the process with a representative — maybe a shady representative, and we have known that to happen in the immigration area — who acted without the applicant's knowledge.
I move that clause 16 be amended by adding, in line 8, the following: "knowingly;" "knowingly falsified an application." It is already two years, but I think going five years is just unreasonable, particularly under the circumstances that we well know exist in this country.
The Chair: Senator Eaton? No further discussion.
Senator Eggleton, shall I suggest that the vote be recorded as per the original vote?
Senator Eggleton: Yes.
The Chair: I declare that the amendment to clause 16 has been defeated by a vote of six to five.
Shall clause 16 carry, on division?
Some Hon. Senators: Agreed.
Senator Eggleton: On division.
The Chair: Carried, on division.
Shall clauses 17 to 23 carry?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 24 carry?
Senator Eggleton: This is the one that deals with the issue that got most of the discussion in our four meetings, and this has to do with the denial of access to the Immigration Appeal Division to permanent residents sentenced in Canada to more than six months of imprisonment. It now is two years and this would reduce it to six months. The concern here, again, is that it catches many people who even the minister was not intending to catch in this. It is an automatic removal. It does not give the opportunity for them to be able to come before the IAD and explain their circumstances. The people the minister is most concerned about would still have all sorts of access to the court system.
The IAD is one of the more efficient in terms of time, and certainly one of the more understanding processes that anyone goes through. If one is trying to speed things up, this is not the way to do it. This is excessively punitive, I think, for a number of people.
It also brings to the table a question of permanent residents convicted of foreign offences. It was quite clear from our representation here that the minister got this wrong, that he did not present this correctly to this committee at all. I asked him about a specific case. I said asked about a 20-year-old permanent resident who went to the United States, falsified some document that showed age, got into a bar and got caught using it, and ended up getting a $200 fine in a U.S. court.
Under section 36(1)(b)of the Immigration and Refugee Protection Act, this person, again, would just be automatically removed and denied access to the Immigration Appeal Division. The minister did not seem to think so at first. He said that we are not after these kinds of people, but these people would get caught. The $200 fine maybe does not meet the six-month threshold, but the act refers to any crime that could be punishable up to 10 years, and anything that gets into that kind of category automatically removes this person from the country.
Denying them access to the Immigration Appeal Division is absolutely excessive and punitive. You are talking about serious criminality, a US$200 fine, and yet this person automatically could not get access.
Remember, it will be bureaucrats who will be administering this thing, and they will be looking at the law. They will say, "Sorry, you are out of luck." That is excessively punitive for a person who might otherwise be a good citizen of the country and made a mistake. That is the problem of going as far as we are in this, that we are catching too many people in that net.
I move the deletion of clause 24 of the bill.
The Chair: It has been moved by Senator Eggleton that clause 24 of the bill be deleted.
Before I ask Senator Eaton if she wishes to comment, I want to go back. When I asked if honourable senators were prepared to accept the vote on the previous one, that was the last motion we put forward, I looked around and everybody was nodding, but I did not ask you. For the record, I want to ask honourable senators if I interpreted the committee correctly that we accept the vote as per the previous vote? Is that agreed?
Hon. Senators: Agreed.
Senator Eggleton: As a recorded vote.
The Chair: As a recorded vote, as per the original vote.
Hon. Senators: Agreed.
The Chair: I will now ask Senator Eaton if she wishes to respond on this motion.
Senator Eaton: I would just say that this is something we have discussed exhaustively. We have a different perspective. I think there are safety nets. If somebody goes into the bar in the U.S. with false ID and is fined $200 they will not be caught in this system. I disagree with my learned colleague, and let us go forward.
Senator Eggleton: I will add one more thing. The person who sat here and said that those kinds of people would get caught was the representative of the Canadian Bar Association, a distinguished body of this country. I do not think they would make that kind of statement unless they knew what they were talking about.
The Chair: Shall the amendment to clause 24 pass? I will call for a full recorded vote on this one, since the composition of the committee has changed. I will ask the clerk to call for a recorded vote.
Ms. Richardson: Senator Ogilvie?
Senator Ogilvie: No.
Ms. Richardson: Senator Dyck?
Senator Dyck: Yes.
Ms. Richardson: Senator Eaton?
Senator Eaton: No.
Ms. Richardson: Senator Eggleton?
Senator Eggleton: Yes.
Ms. Richardson: Senator Hubley?
Senator Hubley: Yes.
Ms. Richardson: Senator Jaffer?
Senator Jaffer: Yes.
Ms. Richardson: Senator Martin?
Senator Martin: No.
Ms. Richardson: Senator Merchant?
Senator Merchant: Yes.
Ms. Richardson: Senator Seidman.
Senator Seidman: No.
Ms. Richardson: Senator Seth?
Senator Seth: No.
Ms. Richardson: Senator Tannas?
Senator Tannas: No.
[Translation]
Ms. Richardson: Honourable Senator Verner?
Senator Verner: No.
[English]
Ms. Richardson: Five for; seven against.
The Chair: The amendment is defeated by a vote of seven to five.
Shall clause 24 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clauses 25 to 30 carry?
Hon. Senators: Agreed.
The Chair: Clauses 25 to 30 are carried.
Shall clause 31 carry?
Hon. Senators: Agreed.
The Chair: Clause 31 is carried.
Shall clause 32 carry?
Senator Eggleton: This is my last proposed amendment. I move that clause 32 be amended by replacing lines 34 to 36 on page 10 with the following:
. . . respect of a person charged with an offence before the day on which section 24 comes into force.
This deals with the retroactivity of the matter. We heard from Richard Kurland who specifically zeroed in on this one and said he felt that this was very unjust, this retroactivity application of those charged after the bill takes effect. That is what this amendment is intended to deal with.
It was ironic that when the minister was asked this question, one of his officials said, no, there is no retroactivity, but then was immediately contradicted by another official who said, oh, yes, there is. I prefer the minister's first answer, and this amendment will help you get to Minister Kenney's first answer.
Senator Eaton: No, I think it was explained very well to us that retroactivity is a good thing for those people now in prison and coming out of prison who have a huge criminality that should be flagged for deportation. I do not see any problem with it at all.
The Chair: I will put the amendment to a vote, which is:
That Bill C-43, in clause 32, be amended by replacing lines 34 to 36 on page 10 with the following: respect of a person charged with an offence before the day on which section 24 comes into force.
The vote on the amendment is before us. Would you like a recorded vote?
Senator Eggleton: A recorded vote. If you have the same bodies, you can do the same thing.
The Chair: Is it agreed that the amendment be defeated by a vote of seven to five with the recorded vote as per the previous vote?
Hon. Senators: Agreed.
The Chair: Shall clause 32 carry, on division?
Hon. Senators: Agreed.
The Chair: Shall clauses 33 to 38 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 1 carry?
Hon. Senators: Agreed.
The Chair: Agreed. Clause 1 is carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Agreed, the title is carried.
Shall the bill carry?
Some Hon. Senators: Agreed.
Senator Eggleton: I would like a recorded vote.
The Chair: Recorded vote?
Ms. Richardson: Senator Ogilvie?
Senator Ogilvie: Yes.
Ms. Richardson: Senator Dyck?
Senator Dyck: No.
Ms. Richardson: Senator Eaton?
Senator Eaton: Yes.
Ms. Richardson: Senator Eggleton?
Senator Eggleton: No.
Ms. Richardson: Senator Jaffer?
Senator Jaffer: No.
Ms. Richardson: Senator Martin?
Senator Martin: Yes.
Ms. Richardson: Senator Merchant?
Senator Merchant: No.
Ms. Richardson: Senator Hubley?
Senator Hubley: No.
Ms. Richardson: Senator Seidman?
Senator Seidman: Yes.
Ms. Richardson: Senator Seth?
Senator Seth: Yes.
Ms. Richardson: Senator Tannas?
Senator Tannas: Yes.
[Translation]
Ms. Richardson: Honourable Senator Verner?
Senator Verner: Yes.
[English]
Ms. Richardson: Seven for; five against.
The Chair: The motion on the bill is carried by a vote of seven for, five against.
Does the committee wish to consider appending observations to the report?
Hon. Senators: No.
The Chair: Hearing none, there will be no observations considered.
Is it agreed that I report this bill to the Senate?
Some Hon. Senators: Agreed.
Senator Eggleton: On division.
The Chair: Senators, I want to thank you for the way in which you have conducted yourself throughout this entire discussion. I know there are significant differences on it, but there has been a very healthy debate throughout the consideration of this bill and clear, well-articulated argument on various aspects of it. The committee has carried itself in the manner in which a Senate committee should. I thank you all for that.
I thank Senator Eggleton for his role in that regard and Senator Eaton for her role as well.
(The committee adjourned.)