Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology

Issue 38 - Evidence - May 1, 2013

OTTAWA, Wednesday, May 1, 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.


The Chair: Welcome to the Standing Senate Committee on Social Affairs, Science and Technology.


My name is Kelvin Ogilvie. I am a senator from Nova Scotia and chair of the committee. I would like to start by inviting my colleagues to introduce themselves, starting on my left.

Senator Eggleton: Art Eggleton, a senator from Toronto and deputy chair of the committee.

Senator Merchant: Pana Merchant, a senator from Saskatchewan.

Senator Hubley: Elizabeth Hubley, a senator from P.E.I.

Senator Munson: Jim Munson, Ontario.


Senator Verner: I am Josée Verner, from Quebec.


Senator Enverga: Tobias Enverga from Ontario.

Senator Eaton: Nicky Eaton, Ontario.

Senator Seth: Asha Seth, Ontario.

Senator Martin: Yonah Martin, British Columbia.

Senator Seidman: Judith Seidman from Montreal, Quebec.

The Chair: Thank you, colleagues. I will remind you and the audience that we are beginning today our study of Bill C-43, An Act to amend the Immigration and Refugee Protection Act.

We are very pleased to have the Honourable Jason Kenney with us this afternoon. He is the Minister of Citizenship, Immigration and Multiculturalism. He is accompanied by a number of officials, whom I will introduce for the record. From Citizenship and Immigration Canada we have Catrina Tapley, Associate Assistant Deputy Minister, Strategic and Program Policy; and Marie Bourry, Senior General Counsel, Legal Services.

From Public Safety Canada we have Emmanuelle Deault-Bonin, Manager, National Security Policy. From the Canada Border Services Agency we have Lesley Soper, Executive Director, Enforcement and Intelligence Programs.

Welcome to you all. I will turn the floor over to the minister.

Hon. Jason Kenney, P.C., M.P., Minister, Citizenship and Immigration: Thank you, Mr. Chair and honourable senators.


Mr. Chair, thank you for the opportunity to discuss Bill C-43, the Faster Removal of Foreign Criminals Act.


For far too long, foreign criminals have been abusing loopholes in our immigration laws to delay their deportation from Canada. Our government is putting an end to this, and this law forms part of a platform commitment from the last general election. Let me explain how we seek to close these loopholes.

Under Canada's current immigration legislation, the Immigration and Refugee Protection Act, adopted in 2002, "serious criminality" is defined as a conviction for which a sentence "of more than six months has been imposed." This definition of "serious criminality" is not changing in the bill before you. I want to repeat that we are not changing the threshold of what constitutes "serious criminality," as some have suggested. Rather, we are closing opportunities for convicted, serious foreign criminals to delay their removal from Canada.

Under the current rules, when Canadian officials try to deport foreign criminals who are found guilty of committing serious crimes by our fair legal system, those individuals can appeal their deportation to the Immigration Appeal Division of the Immigration and Refugee Board of Canada, otherwise known as the IAD. They can do so as long as their sentences are less than two years.

We have people who are found guilty by a Canadian court of law being given a sentence of six months to two years. If their sentence falls within that interval, they are subject to a removal order, but that can be reviewed and effectively suspended or overturned by the IRB's Immigration Appeal Division.

The problem in the current system is that the review usually takes several months and, in most cases, the IRB refuses the application to suspend the removal. Then, typically, the convicted foreign criminal will seek leave for judicial review to the Federal Court of that negative IRB decision. That takes another several months — perhaps eight or nine months.

Those two delays together can often burn up two years or more in time before the person is removed. Then they will typically make an application for permanent residency on a humanitarian basis, which will further delay their removal in some instances. Then they will file an application for a pre-removal risk assessment, which can also be subject to an application for judicial review if the assessment is negative.

If you include all of what we call suspensive and non-suspensive recourses, you end up with a situation where convicted foreign criminals are, in some cases, able to delay their removal from Canada, sometimes for several years. In many cases, they go on to reoffend.


Bill C-43 would end that abuse. Under the provisions of this bill, foreign criminals given a sentence of more than six months, as well as those who have committed a serious crime outside Canada, would no longer have access to the Immigration Appeal Division.

This change would help expedite the removal of serious foreign criminals from Canada. The reason it is so important to close these loopholes is that, while these serious criminals are allowed to delay their deportation and remain in Canada, many of them go on to reoffend and create more unfortunate victims in Canada.


Unfortunately, there are many real-life examples. Take the example of Chinese national Geo Wei Wu who was convicted of multiple crimes, including theft and assault causing bodily harm. He was supposed to be deported in 2008, but, under the current rules, he was entitled to appeal to the IAD, allowing for an ultimate delay in his removal by three years. His appeal failed, as many do, but during this time he was able to go underground and disappear. That was until last year when media reported that he was wanted by Peel Regional Police in connection to a 2011 kidnapping in Mississauga that ended in a man's death.

Of course, there is the tragic case of Constable Todd Baylis, who was a young police constable in Toronto who, while on duty, attempted to break up a crack cocaine deal. He was shot and killed, and his partner was shot and seriously injured by a convicted, serious, Jamaican criminal, Clinton Gayle. Mr. Gayle was a long-time drug dealer. He was supposed to have been deported, but was still in the country at the time after several years, in part because he was able to appeal his deportation. In this case, it is true that there were operational and administrative problems at some point later in the case. Canada Border Services Agency lost track of Mr. Gayle. However, it is also true that had it not been for his access to the IAD appeal that we are seeking to close in this bill, he would have been removed from Canada shortly after the completion of his initial conviction.


Those are some examples of why this bill is needed. These are real victims whose families face real suffering because of a system that puts the interests of criminals ahead of public safety. By passing Bill C-43, we can help prevent tragic cases like these in the future.

I want to make it clear that these criminals will still have full access to the criminal justice system and all appeals under that system. But what they will no longer have is access to an appeal process to delay their deportation.


In other words, they will get their day in court, but not endless years of delays. They will get due process, not endless process.

Maintaining permanent residency status in Canada is not difficult. You really just have to do two things: You actually have to live in Canada and not commit a serious crime. We do not think that is too much to ask. The vast majority of permanent residents are honest, hard-working and law-abiding. Most go on to become citizens. However, for the small number who choose to break the law, we will no longer maintain a system that allows them to abuse our generosity and remain in this country during which time they can, and too often do, commit more crimes, victimizing more Canadians.

This bill would also make it easier to remove an individual from Canada who is inadmissible on the most serious grounds, such as implication in terrorism, organized crime or war crimes. Most Canadians are shocked to learn that these individuals currently have access to a process called an application for residency on humanitarian and compassionate grounds. Just to be blunt, I do not think Mafiosi and members of terrorist organizations should be given special consideration to stay in Canada on compassionate grounds. Frankly, I think it makes a bad joke of the whole process of the humanitarian and compassionate program.

Honourable senators, another important provision would give the Minister of Citizenship and Immigration the authority to deny temporary resident status to foreign nationals who pose a risk to Canada. This is one of the more contentious aspects of the bill. We are proposing it because currently, around the Immigration Act and under all of its previous statutes, the Minister of Immigration has always had enormous what we call "positive discretion" to overcome grounds for inadmissibility and to admit people into Canada either temporarily or eventually permanently. In our country, unlike other liberal democracies, the minister has never had what we call "negative discretion."

Cases arise from time to time, very rarely, but extreme cases of individuals who are technically admissible to Canada but, according to a broad public consensus, who ought not to be allowed to bring, for example, their hateful, extreme, poisonous attitudes and prejudices to this country. The problem is that someone is only criminally inadmissible to Canada if they have a serious criminal conviction in another jurisdiction that would also be a serious crime in Canada. Guess what? Promoting hatred for Jews, for gays and lesbians, or for women is not a crime in many countries around the world, but is culturally and legally acceptable. People who engage in that kind of promotion of even violent hatred against vulnerable social groups are technically admissible under our current law.

Canadians do not understand this. Canadians come to me, as the minister, and ask, "Why are you letting these people into this country," and those Canadians include members of this committee, members of the Senate, and others.

For example, in October 2011, the Quebec legislature passed a unanimous motion "to demand that the federal government refuse entry to Canada of Abdur Raheem Green and of Hamza Tzortzis given their hate speech which is homophobic and minimizes violence against women." Members of the Senate were outraged that I was not preventing the entry of these people, but I do not have any legal authority that I can use to prevent the entry of such individuals.

What we are seeking is a new power in Bill C-43 that would be used on a very limited basis, based on criteria that we published at the house committee to allow for the minister to intervene and exercise negative discretion in such cases, for example.


This discretionary provision will apply to individuals who have exhibited behaviour or engaged in activities promoting terrorism, violence or crime. That would include those with a track record of promoting or glorifying terrorist violence, or inciting hatred that is likely to lead to violence against a vulnerable group. This provision will also apply to foreign nationals of countries against which Canada has imposed sanctions, as well as corrupt foreign officials listed under the Freezing Assets of Corrupt Foreign Officials Act.


That is because, in the current law, again, we might impose sanctions. We might sign on to UN sanctions against, for example, senior members of the Iranian regime, but, believe it or not, we do not actually have the necessarily legislative tool to give effect to travel bans for members of regimes under a sanction of that nature.

I would finally point out that the criteria we propose for the use of this negative discretion are far more limited and more discrete than the criteria that are used in pure liberal democracies like Australia, the United Kingdom, the United States and France, in which countries the ministers have broad and unlimited discretion.

I know I am running short on time. I will close by saying there are many other provisions in the bill, some of which are designed to facilitate the admission into Canada of bona fide visitors. For example, right now, if you are applying for a visa to come to Canada and one member of your immediate family who is applying to come is medically inadmissible, all of the family's applications are denied. I am proposing that we would be allowed to sever the one person who is medically inadmissible on humanitarian grounds.

There are also facilitative elements in the bill, and I am pleased to say the bill has broad support, including endorsements from the Canadian Association of Chiefs of Police; the Canadian Police Association; victims' rights groups, including Victims of Violence; and many experts.


I would now be happy to answer any questions you may have.


The Chair: Thank you, minister. Just before I go on, I wonder if it would be possible for you to provide us with a copy of the document you referred to on the criteria?

Mr. Kenney: I am sorry. If that was not already available, I will do so now right now, in English and French.

The Chair: I will continue with my comments. Senators, it is in the major document that was circulated just at the beginning of the meeting.

Thank you, minister. I was not aware it had been distributed to us at the beginning of the meeting.

I want to remind my colleagues that we have two sessions this afternoon, and this session should end by 5:15. I, therefore, ask you to keep your preambles short and your questions focused.

Senator Eggleton: Minister, I certainly do not quarrel with your trying to remove people involved in serious criminality as quickly as possible, but I am concerned about whom else you might catch in that net; there might be other people — perhaps a lot of people — who are not in the category of serious criminality. They may have violated a law and they may have gotten six months or more. Your legislation appears to be based on the time frame with respect to being able to appeal to the Immigration Appeal Division.

Up until now, it was two years for an appeal to the division. Now you will make it six months and deny an appeal to anyone over six months. Six months could catch people with such offences as possession of marijuana under 30 grams, possession of hashish under 1 gram, public mischief, common assault, trespassing at night, and driving while disqualified. Those are just some of them. That is not to say that those should not be subject to punishment; they should be, of course, for people convicted of them. However, it does not seem to me that it comes under the heading of "serious criminality," yet those people can get caught in this and end up not being able to appeal.

There is also the question of conditional sentences. Conditional sentences, particularly ones that involve community service, can be longer than what a jail term might be and that might take them over the six months stipulated. Yet, community service is also an indication that it is not as severe — that it is not "serious criminality." Those people can get caught in this, as well.

I have two questions. Previously, conditional sentences were not included, so why are they now included in this bill? In other words, you can catch more people who have committed a six-month category. Rather than a time frame, because there can be more minor offences or more serious offences in that time frame, why did the government not spell out the sections of the Criminal Code that would be affected to ensure serious crimes are targeted and not the others I have mentioned?

Mr. Kenney: Let me reiterate that we are not changing the framework in the immigration law in this bill for criminal inadmissibility for permanent residents. We are simply removing an access to the Immigration Appeal Division.

When IRPA was written in 2002 — and you voted on it as an MP at that time, Senator Eggleton — it was voted on to render permanent residents inadmissible and subject to removal if they had received a sentence of six months or more. A series of offences were not specified in the bill at that time; it said if a judge convicts you to a sentence of six months or more for an offence under the Criminal Code, then you are not welcome in Canada. However, then IRPA added that, if the sentence is less than two years, the foreign national, who is criminally inadmissible by virtue of that section, can appeal their criminal inadmissibility to the IAD.

Therefore, we are not seeking to change the definition that was written into IRPA in 2002. We are not seeking to change the threshold, the benchmark or its definition. It is already there. It is not changing. All that is changing is that those who receive sentences between six and 24 months will no longer be able to appeal their admissibility to the IAD, but they are still criminally admissible.

If you want to question why it is six months instead of containing a list of offences, I would say look to the parliamentarians who made the decision in 2002.

Senator Eggleton: No, you could deal with that right now. You are tightening it up. You are taking away the right to appeal after six months instead of two years. As you do that, would it not make more sense, because you will catch so many other people and deny them the right to appeal, to list those serious criminal activities now?

Mr. Kenney: Let us be clear about one thing: We are not taking away the fundamental right to appeal on the criminal conviction.

Senator Eggleton: I heard you.

Mr. Kenney: Let us be clear about this, though. A foreign national permanent resident who receives a conviction, regardless of the duration of the sentence, obviously can appeal that conviction. Therefore, let us not question the fairness of their conviction.

By the way, in terms of the actual offences, we are talking about relatively few people. About 500 per year foreign permanent residents are convicted in criminal courts and receive sentences of six to 24 months. It is ridiculous to suggest this will capture people who get into a bar fight or are walking down the street with a joint in their pocket. There is no court that sentences people to six months in jail for simple possession. They would for major possession with intention to traffic and perhaps for serious aggravated assault, but these are sentencing decisions that the judge will take into account.

Senator, there are many jurisdictions — I think including the United States — where if you receive a conviction for a misdemeanor, there is no appeal; you are just removed. Even at six months, we are probably being more liberal in the application of inadmissibility than most democracies.

Senator Eggleton: Let me talk about a conviction possibly in the United States. You are saying here —

The Chair: Please focus in, because there are other questioners.

Senator Eggleton: You are saying foreign offences and convictions — the denial of access to the Immigration Appeal Division to permanent residents convicted of foreign offences, regardless of the sentence imposed. You could have a 20-year-old permanent resident in Canada who goes down to the United States, uses a false identification to get into a bar while visiting the U.S. and could be fined $200by the courts. However, your bill says that it does not require a threshold sentence in terms of a foreign conviction, only that there is a foreign conviction. How is this person a hardened criminal who should be banished from Canada?

Mr. Kenney: I am sorry, but I do not know whether it was the Liberal Research Bureau or Mr. Lamoureux's office that came up with that ridiculous notion. I responded at length to that in Hansard at second reading and report stage in the House. It is simply not true.

A foreign national is only inadmissible to Canada if they have a criminal conviction in another jurisdiction that would also be a serious criminal conviction in Canada. A fine for a misdemeanor in the United States is not the equivalent of a serious criminal conviction in Canada. I do not know why this keeps coming up, but it has no basis in the bill.

Senator Eggleton: Such a person would be allowed an appeal at the Immigration Appeal Division for the kind of case I outlined, a misdemeanor kind of thing; is that right?

Mr. Kenney: It would not be necessary, because it would not trigger criminal inadmissibility in the first place if they are just getting a fine on a misdemeanor or something that is not a serious crime in Canada. There would be no removal order. They would not receive a report of inadmissibility.

To give one other point, there is a remedy available to permanent residents who have been rendered inadmissible. Even in the absence of the IAD, they can still seek a remedy by applying for judicial review to the Federal Court. There is always another avenue.

Senator Eggleton: Thank you.

Senator Munson: Thank you, minister, for being here. We understand you want to get rid of the bad guys, but, in your legislative crossfire, it seems to me you may have children in your sights in the sense that there is no access for humanitarian and compassionate considerations. For example, if you look at teenagers or a parent of a child who fled to this country and participated in a non-violent way against, say, a Gadhafi, a Pinochet or in the Ethiopian struggle, it is my understanding that they would be inadmissible on security grounds.

I know you are aware of Article 3(1) in the Convention on the Rights of the Child. Regarding that, the Continuing Committee of Officials on Human Rights urged Canada to:

Ensure that legislation and procedures use the best interests of the child as the primary consideration in all immigration and asylum processes. . .

In my opinion, Bill C-43 does not accomplish anything to better protect children. In fact, I think it brings us further away from that goal. In what way, Mr. Minister, do you think that this legislation follows our obligation under the Convention on the Rights of the Child?

Mr. Kenney: In all of the application of Canada's immigration law, the best interests of minor children is always considered in every decision by visa officers, by border services agents, by the IRB and by the Federal Court. That is always a consideration. There is nothing in Bill C-43 that would change that.

I have to correct you in one respect, senator. If someone has been involved in an uprising, say political dissidents against a dictatorship, that does not render them inadmissible to Canada. There is a common misunderstanding about this. Our law, to put it in layman's terms, says that you are inadmissible to Canada if you have been involved in a serious crime overseas that would also be a serious crime in Canada. That saves people who were the good guys. If you were involved in Falun Gong in China and you got a conviction in that system for espionage or some other trumped up political charge, we would not recognize it as such in Canada, in which case we give you asylum rather than removal. This does not change that.

What you are referring to, perhaps, is the provision that would bar access to the humanitarian and compassionate process for people who have been found, on a balance of probabilities, to have been involved in human or international rights violations and organized criminality. This is to get at cases like the Ben Ali family. I had every opposition party demanding that I stop the admission into Canada of the corrupt Mafioso who was a brother-in-law of the deposed former Tunisian dictator, Mr. Trabelsi, but I could not because I did not have the power to do so. Under this provision, he would no longer have access at least under the humanitarian and compassionate process.

Senator Munson: Does the example I have given not apply to any of these children or parents, for example, involved in the struggle against —

Mr. Kenney: It would apply to the child. In principle, the dependents of a vicious Mafioso or a dictator who comes to Canada would be inadmissible —

Senator Munson: I am not talking about Mafioso.

Mr. Kenney: But I am. That is what the bill is talking about. The bill is talking about people with organized criminality, crimes against humanity or international human rights violations, and they would not be admissible to Canada.

You have to understand that, in our law, the dependants are attached to the status and the application of the principal applicant, who in this case would be the dictator.

Senator Munson: Thank you, minister. I have one other question. You have new authority to deny access. Is that how this works?

Mr. Kenney: Yes, negative discretion.

Senator Munson: What makes a minister more appropriate to individually make these decisions, one person, one decision?

Mr. Kenney: Right now, no one has the power in our system. These are sensitive questions. The minister would act on the advice of officials, of course. It is the same system that exists in the United States, the U.K., Australia and France, where there is a fail-safe, where the responsible political authority can deny admission to someone. I think in Australia it is on public policy grounds and, in the U.S., against the national security interests of the United States. We propose criteria that are far more limited than that. I have read them into the record here.

I guess the answer to the question, senator, is that the buck stops at the minister. When the Quebec National Assembly passes a unanimous motion asking me to prevent an anti-Semite and a homophobe from coming into Canada, they are asking me to exercise a statutory authority I do not have. When opposition members stand in the house and ask, "Why are you letting this homophobic bigot who promotes violence against gays into the country," they are not passing the buck to my officials; they are asking me. I think the minister should have the authority where there is presumed to be authority.

Senator Seidman: Minister, I would just ask you a bit more about the negative discretion aspect, which has prompted some discussion. I do understand that there was an amendment made to the bill after the house hearings that would increase the transparency around this issue of negative discretion. I am referring specifically to clause 8 of the bill. I would like you to explain how the amendment came about and how it improves the bill.

Mr. Kenney: Yes. The government accepted an amendment at clause-by-clause consideration at the house standing committee to require that when the minister exercises negative discretion, that, on an annual basis, a report be tabled in the House of Commons including the number of such declarations made and setting out the public policy considerations that led to the making of the declarations. This ensures public transparency. We would table an annual report in the house saying, "This year, the minister, on four occasions, exercised negative discretion on the following grounds."

Senator Seidman: I think there was also an issue about the criteria that you were going to use. They were not included in the bill. However, there is a way of dealing with that, I believe, that you have put forward.

Mr. Kenney: Yes. To be honest, in crafting the bill, we did consider including the criteria that are now before you for public policy in the bill, but we studied our peer countries. We studied Australia, the U.K., the U.S., New Zealand, and France, et cetera. We realized that they all maintain a very broad discretionary power. We came to the conclusion — or I came to the conclusion — that it was optimal to maintain some degree of discretion for circumstances that were not contemplated here. When you put something in legislation, it becomes very rigid and this is about dealing with unforeseen circumstances. There may be a situation that does not narrowly conform to these criteria but where there is a broad public consensus that a certain foreign national should not come into the country.

Take the example of that crazy American pastor who goes around protesting funerals and promoting outrageous violence against gays and lesbians. It would be a borderline question as to whether or not he meets these criteria, but, if I had a unanimous motion in the House of Commons saying "Keep Fred Phelps" —I think his name is —"out of Canada," I might be prepared to exercise political discretion under this public policy power to do so.

The Chair: Senator, you can continue questioning, but, for the rest of you, it is in Tab F in the binder that was provided to us at the beginning of the meeting.

Senator Seidman: I have another quick question. I think that helps me understand the rationale behind not including —

Mr. Kenney: If I could add, in crafting this, we spent a lot of time thinking this through, trying to balance this. One of the reasons I am proposing criteria that are fairly narrow is that I do not want either this government or any future government to use negative discretion in an arbitrary fashion to effectively ban people whose political views one might disagree with. These are very difficult judgment calls.

In the United Kingdom, at one point, they used their public policy authority, their negative discretion, to ban Geert Wilders, the head of the second or third largest Dutch political party, because of his let us call them xenophobic views on immigration. I want to err on the side of freedom of expression, while having the power to bar people who really are promoting, for example, a violent hatred against vulnerable groups.

Senator Seidman: I will ask one more question about the retroactive effect of this bill, because that is another issue that has come up during testimony in the House of Commons, in committee. Will the bill have a retroactive effect?

Mr. Kenney: No, I do not believe so. No.

Senator Seidman: Thank you. That is quite explicit.

Mr. Kenney: The reason I hesitate is there are many different aspects of the bill. I want to confirm with counsel that there is nothing that applies retroactively. There is? Would you expand with a little clarification?

Emmanuelle Deault-Bonin, Manager, National Security Policy, Public Safety Canada: One of the only proposals in the bill that are included in here, mandatory minimum conditions, would apply retrospectively. Therefore, they would apply to individuals that are currently in Canada. That would be done through the transitional provisions.

Mr. Kenney: Can you expand upon that, because I do not understand that.

Ms. Deault-Bonin: The proposal called "mandatory minimum conditions" would be to impose minimum conditions on people who are considered or determined to be inadmissible for security inadmissibility reasons. Rather than have those conditions being imposed only for future cases, we would like those conditions to be imposed also on individuals currently in Canada who are either being considered or are determined to be inadmissible for security reasons, such as terrorism and espionage. That is to apply a consistent approach to the imposition of such conditions.

Senator Seidman: Thank you for asking to have that in layperson's language.

Senator Seth: My question is a little bit funny, I would say. What happens to a permanent resident or immigrant who has just recently arrived — within two or three years — committed a crime and sentenced to over two years? The family is with the immigrant, as well. Will the whole family be deported, or will the family be allowed to stay? What will be the case in those circumstances?

Mr. Kenney: Typically, senator, as I said before — to put it in plain English — the dependants, such as the spouse and dependent children, are attached to the status of the principal applicant — the subject. I will give you a concrete example.

We are dealing with the brother-in-law of the Tunisian dictator. If his refugee claim is refused, we will then in that kind of case pursue his removal from the country, and any family members attached to him, as well. That is applied consistently right across the system.

There are a couple of cases where I have exercised my positive discretion as minister to sever dependants from primary applicants who were found inadmissible on discretionary humanitarian grounds, but that is very exceptional.

Senator Seth: What happened when you were mentioning about temporary residents to Canada? What do you mean? How much time limit do you give them to allow them to live here?

Mr. Kenney: It depends. There is never a simple answer in immigration law. A typical case is that people are issued a single-entry visa for six months or they come from a TRV-exempt country for an implied period of six months where they do not need a visa.

The outer limits would typically be four years. For example, temporary foreign workers can stay in Canada on a work permit for up to but no longer than four years. On average, it would be six months to two years.

Senator Merchant: Minister, I have some questions that were raised by the Canadian Council for Refugees. If I might just say, they are a non-profit umbrella organization committed to the rights of refugees in Canada and around the world, and to the settlement of refugees and immigrants in Canada. This is how they define themselves. They have many concerns, but I would like to put just some of their questions forward to you, please.

They say that examples of full appeal rights are needed in order to take into consideration all the relevant circumstances of the case, which might include, for example, a person who came to Canada as a child and has lived effectively all their life in this country. Then they have no family or connections in the country of their birth, and do not even speak the language; or a person who faces excessive hardship if returned to their country of origin because of the situation in the country — for instance, war, massive human rights abuses, et cetera.

Can you maybe tell us what would happen in these two instances?

Mr. Kenney: Yes. Even a foreign national permanent resident who has received a criminal conviction with a sentence of six months or more and is therefore inadmissible to Canada can still avail themselves of the pre-removal risk assessment to determine whether they would face a risk of threat to their life or physical safety if returned to the country of origin. There is that process in place.

Many times every year, we end up with a conflict where a foreign criminal is inadmissible but they get a positive pre- removal risk assessment. Therefore, our system is saying it is not safe to remove them, but our legal system is saying it is not safe to keep them in Canada. In those cases, it goes to a balancing opinion, where a senior CIC official weighs the balance of the risk to Canada by keeping the person here versus the risk that they might face if returned to their country of origin. They try to figure that out in a practical way.

Similarly, ordinary criminals — people not involved in serious human rights abuses — would still have access to apply to stay in Canada on humanitarian and compassionate grounds. Of course, initially they could have applied for asylum. However, their permanent residency based on a positive asylum decision would be negated by their serious criminality, so that is probably not relevant.

Senator Merchant: What would happen in the case of a person who may be suffering from mental health problems and whose mental situation has contributed to their commission of a serious crime?

Mr. Kenney: That would be taken into account by the sentencing judge in the criminal court.

Senator Merchant: Finally, what about the case of a crime committed outside of Canada where the person may have been convicted in an unfair process in another country.

Mr. Kenney: Again, our law always has taken those situations into account.

There is some confusion about this. Let me be clear once more. Someone being convicted of a serious offence in a foreign jurisdiction is not grounds for inadmissibility in Canada, unless it is deemed to be an equivalent offence here. That is how we get around the fact that a lot of people come from countries with bogus legal systems.

A lot of people with criminal convictions on paper are actually political prisoners. We do an analysis in our asylum system. The IRB does these analyses, also. Paragraph 36(1)(a) of IRPA says that:

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;

(b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years

I apologize. It is paragraph (b) that is relevant here.

Senator Mercer: Thank you, minister, for being here. I am trying to clarify an answer you gave to Senator Munson a little while ago in talking about people coming from countries where there is internal conflict and strife. You came down on the side of the good guys. Who is to judge who the good guys are in someone else's country? At the end of the day, the people who we may think are the bad guys are the government and the people who we thought were the good guys, if they have done something wrong, may find themselves in a situation where they have been charged.

Mr. Kenney: It is important to understand that we are not proposing in this bill to change who makes that decision or how it is made. However, under the 2002 Immigration and Refugee Protection Act, the determination of whether a foreign national is criminally inadmissible on the grounds of a foreign conviction — in other words, the determination of whether that foreign conviction is equivalent to a Canadian offence — is made by minister's counsel or perhaps a minister's delegate. Can I get an answer on that one?

Lesley Soper, Executive Director, Enforcement and Intelligence Programs, Canada Border Services Agency: It is the IRB.

Mr. Kenney: Is it by the Immigration and Refugee Division or the IAD? The decision is made by a public servant at the IRB at the Immigration Appeal Division.

Here is an example: A guy comes into a port of entry. The Canada Border Services Agency officer says, "What the heck? The system says you were convicted of treason in Tunisia. You are inadmissible to Canada." The guy can then have that reviewed at the IRB. A decision maker will take into account, "Just a minute. This guy was actually a bona fide dissident, and this was a trumped-up political charge. No, he is admissible into Canada." That is where the decisions are made, not by politicians.

Senator Mercer: Let us talk about child soldiers for a minute. We know that child soldiers are not usually volunteers. They are usually forced into service by people on both sides of conflicts. In some countries, you will have child soldiers on both sides. At the end of the day, a child soldier may have indeed done something wrong in his or her capacity as a child soldier under the direction of someone else. He or she is then carrying this conviction. Maybe the good guys did win in that country. How do we decide about that young person who was a child soldier not by his or her own choosing? The conviction cannot be erased, obviously. How do you apply that in this case?

Mr. Kenney: Again, I apologize. I misquoted. I quoted the wrong section of the act before. IRPA, section 36(1)(b) says that a PR or foreign national is admissible if they are convicted of an offence outside of Canada — this would include being a soldier who has committed war crimes —

. . . that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years . . .

Being a child soldier is not a crime under any act of Parliament. The immigration division of the Immigration and Refugee Board would say that kid is not inadmissible to Canada.

Senator Mercer: The act that he or she committed may indeed be a crime under the laws of the Parliament of Canada. It is the circumstances under which the crime was committed. As a child soldier, they were being directed to do so, under some duress.

Mr. Kenney: That gets into a complex body of law on duress and so forth. I will have one of the lawyers help me out on that.

Marie Bourry, Senior General Counsel, Legal Services, Citizenship and Immigration Canada: I am not an expert on this aspect. Again, if you are talking about criminal inadmissibility, it is linked to either a conviction or the commission. There is a balancing element in terms of looking at whether or not this is consistent with an offence in Canada punishable by a term of 10 years, a sentence of at least 10 years.

With respect to those elements again, it is —

Mr. Kenney: Senator, actually, just to cut to the chase on this, in my experience — I have been around in this job for four and a half years — I vaguely recall a couple of cases that might be former child soldiers. They were deemed to be inadmissible because of what they did. We overcome that all the time by giving them what is called a permit. We look at the circumstances. Either a visa officer or the minister will intervene and say, "Hold on a second here. There are extenuating circumstances."

I know of a case like this. There was a former child soldier was coming on a speaking tour in Canada about child soldiers. He was deemed inadmissible. We overrode that with a permit. That is the positive discretion we exercise.

I am sorry that this is getting into an arcane, difficult area. Immigration law is infinitely complex.

Senator Martin: Minister, I wanted to ask you a question regarding cases with misrepresentation and some of the increased penalties that are part of this bill. I know that you talk about the loopholes, and I have seen a case directly where misrepresentation took place. It has been delayed for over seven years.

In this particular bill, with these increased penalties, there is some criticism about whether it would punish individuals who make honest mistakes and whatnot. Can you describe how that would be separated in terms of how each of these cases would be examined?

Mr. Kenney: Each case, of course, is examined individually, according to all principles of natural justice and due process at the criminal courts. Extenuating circumstances are considered by trial judges, obviously, in our criminal courts. If they see someone who might have been mentally incapacitated or had other extenuating circumstances, then they may not find the person criminally responsible or they may provide a suspended sentence or a modest sentence.

I think all of those individual circumstances are fairly considered in the criminal justice procedure. If someone is convicted, then they can appeal that. If they do not like the sentence or they do not agree with the sentence, then they can appeal the sentence.

In terms of immigration, there is, as I say, positive discretion, senator. If we see a situation where someone has been rendered criminally inadmissible but we think somehow the system has not really captured all of the saving circumstances, then, on an extraordinary basis, we can override their inadmissibility through the issuance of a temporary resident permit.

Ordinary, foreign criminals, those who are not involved in war crimes or crimes against humanity, can apply for a pre-removal risk assessment. They have access to the process for humanitarian and compassionate status. They can also go to the Federal Court.

Senator Martin: You mentioned positive discretion. Really, in some of the other cases mentioned, that is a way you can intervene on very rare occasions if such errors have been made.

Mr. Kenney: Yes. The law does not really say whether it should be rare or not, but I think the minister should exercise that positive discretion with great discretion.

Senator Martin: Thank you.

Senator Eggleton: Senator Martin talked about misrepresentation. You are saying, as I understand it, that a person would be barred from possible entry on misrepresentation. Instead of two years, it would now be five years. Why is that, if it is an unintentional misrepresentation?

Mr. Kenney: Oh, misrepresentation. Yes. If the first thing that someone does in trying to get into Canada is commit immigration fraud, then there should be a sanction greater than a slap on the wrist. We want people to be truthful in their applications. We deal with a huge industry around the world that facilitates immigration fraud, and that has very negative impacts on bona fide travellers. We are basically in a fight worldwide with immigration fraud, and we think this tool is necessary to send a message that we will not tolerate it.

Senator Eggleton: What about the cases where someone has been misled by an immigration representative or has some misunderstanding due to language? It is not intentional, in other words. Why are you punishing those people?

Mr. Kenney: We will only do so when it is intentional and serious. There will be discretion. If an officer thinks that the misrepresentation was an inadvertent error, perhaps based on the ignorance of the applicant or a language problem, the person would not receive this penalty. However, if it is a clearly a willful and serious effort to mislead us, then the penalty would be invoked.

The Chair: Minister, I want to thank you. In your usual fashion, you have handled all of the questions with great clarity and understanding. I am speaking from my interpretation of how the questions went and the answers in response from my colleagues to your answers. I thank you for that.

One of the comments you made to one of the early questions was about the range of situations. This is an area where we can imagine that almost every situation is slightly different, and the difficulty of handling these in a straight format must be an enormous challenge. With that, I do want to thank you on behalf of the committee for appearing here at the beginning of this bill.

Mr. Kenney: Thank you, senators.

The Chair: Let us welcome the witnesses of the second session of our meeting. I will identify them as I ask them to present. In that regard, I will start with Martin Collacott, Spokesperson for the Centre for Immigration Policy Reform.

Martin Collacott, Spokesperson, Centre for Immigration Policy Reform: I will comment today on two aspects of Bill C-43 that have attracted criticism and discussion. The first is the provision for the accelerated removal of individuals convicted of serious crimes, and the second is the provision that gives the minister the authority to use negative discretion on who may enter the country.

On the first, I would point out that the provision for the faster removal of those who commit serious crimes is long overdue. One of the major problems in effecting the removal of foreign criminals and individuals who pose terrorist threats is that many of them make refugee claims when they are ordered deported and, because of the dysfunctionality of the refugee determination system, this can delay their departure for years and even decades.

One of the most egregious examples is that of Mahmoud Mohammad Issa Mohammad, a convicted terrorist who was able to enter Canada under a false name in the 1980s. When his real identity was discovered, he was ordered deported in December 1989. He claimed refugee status, although this claim was rejected in 1995. The refugee determination system then gave him access to various appeals and reviews of the decision.

As a result, he is still in Canada a quarter of a century later. The last objection he made to removal that I am aware of — this was several years ago — was that, if he were sent back to his native Lebanon, he would not receive the same standard of public health care that he gets in Canada and this would constitute cruel and unusual punishment. In response to this, the government pointed out that good health care was, in fact, available in Lebanon, but that he would have to pay for it himself.

In 2011, an estimate was made that his appeals and reviews had thus far cost Canadian taxpayers around $3 million.

It required 15 years to get Léon Mugesera, a Rwandan war criminal, out of the country last year. It took 10 years to remove another Rwandan war criminal, Jean Léonard Teganya, after he lodged a refugee claim.

One final case was that of Van Thanh Nguyen who was ordered deported in 1995 for a series of crimes, including the 1991 armed robbery of a milk store in Guelph, Ontario, during which he locked the store's elderly owners in a cooler after stripping them of their jewelry.

After being ordered deported, he managed to rack up four more criminal convictions, as well as finding time for a kidney transplant, getting married and raising a family. He is now arguing that he should not be deported because if he were sent back to Vietnam, he would not be able to pay for the expensive anti-rejection drugs for his transplant that he now gets free from the Ontario government.

A provision of Bill C-43 that has attracted particular criticism is that it would shorten from two years to six months the length of the sentence one would have to receive in order to be eligible for deportation. Immigration activists have argued that this would result in the removal from Canada individuals who had committed very minor offences.

In response to this, let me give you the example of Avinash Prasad. According to news reports, Prasad was seen speeding and driving aggressively down 64th Avenue toward 176th Street in Surrey, B.C. As he approached the intersection, he changed lanes to go around another vehicle, hit the curb, veered left across both lanes of the road, his car went airborne, he hit a vehicle driven by Sean Arland and killed him. He already had a driving record featuring 17 infractions and was charged with dangerous driving causing death. What were the consequences of all of this? He was given a three-month intermittent jail sentence, a $2,000 fine and a four-year driving prohibition.

What we can conclude from this is that even a three-month sentence for a very serious act may still not get you removed from Canada under the proposed legislation.

The legislation will go part of the way towards establishing a somewhat better balance in terms of protecting the interests of the public than does the current system, which, over the years, has developed a heavy bias towards the favouring the rights of people who should be removed. There will still remain major impediments towards a well- balanced system for determining who should be removed and ensuring that they are actually removed during a reasonable period of time.

One of the main reasons why it is so difficult to remove people, particularly those who make a refugee claim, is section 7 of the Charter of Rights and Freedoms. When the Charter was being drafted, John Manion, a former deputy minister of immigration who was at the time the Charter's drafting was the Secretary of the Treasury Board, warned the government to be careful about the wording of section 7, which guarantees the right to "life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

Manion argued that this section should not refer simply to "everyone" since that implies that anyone who sets foot on our soil would be entitled to the full benefits of the Canadian legal system. He did not suggest that non-Canadians should have no legal rights in this country, but that the government should at least, in his words, "be in a position to make summary decisions in cases of those who have no legal connection to this country, as virtually every other country in the world does."

Manion was assured by those involved in the drafting that if the word "everyone" were used in section 7, there would not be a problem. The word "everyone" was therefore retained.

Manion's prediction that if section 7 were so worded such that it applied to everyone, it would allow anyone arriving in Canada to bypass or frustrate Canadian immigration policies and laws. His prediction turned out to be entirely correct when a Supreme Court decision in 1985 deemed that it applied to six failed refugee claimants.

The root of the problems that have rendered the Canadian refugee system largely dysfunctional lay, therefore, to a considerable extent in the poor drafting of section 7 of the Charter. Rectifying this particular problem is not easy since it would involve either amending the Charter or invoking the notwithstanding clause, neither of which is likely to happen anytime soon.

In the meantime, the provisions of Bill C-43 will go some way toward preventing egregious cases, such as those of Mohammad Issa Mohammad, Mugesera, Teganya and Nguyen, from being drawn out much longer than they should be.

The proposed changes are being vigorously opposed by refugee lawyers and advocacy groups. I would point out in this regard that one of the techniques used by lawyers to improve the prospects of their clients being able to stay permanently in Canada is to find ways of delaying their removal as long as possible — in many cases to give them more time to establish roots in Canada and then claim they should not be removed because of compassionate and humanitarian considerations.

Just as it is important to correct the failings of the refugee determination system so it is not clogged with undeserving cases, this bill would make it possible to deal more speedily with those people who genuinely deserve our protection as well as remove expeditiously those who do not, particularly those who represent a threat to Canadian society.

If there is time, I will mention one of the other main objections to the bill, which is that it gives the minister too much power to decide who cannot enter the country and, more particularly, that it gives him too much discretion in deciding who to turn down.

Interestingly, members of Parliament seem to have no problem with the minister exercising positive discretion in terms of issuing minister's permits to individuals who would normally be inadmissible for one reason or another. Such exemptions are regularly requested by members of the various political parties. It is therefore somewhat strange that there is so much opposition to him having as much discretion in deciding who should not be allowed to enter the country.

Related to this objection is the suggestion that, by having the minister decide who cannot enter the country, the decisions could be politicized in a way that would not be the case if they were made by public servants. I will make two quick comments in this regard. First, political considerations are, in fact, sometimes a legitimate factor in decisions to refuse entry. Australian and American legislation, for example, explicitly cite foreign policy concerns as one of the reasons why the cabinet member responsible may refuse entry. These are legitimate considerations. I do not think this would affect a large number of people. The minister in fact, if he made a negative decision, would have to be in a position to explain why he did it. I will wrap it up with that.

The Chair: We now have, from the Canadian Council for Refugees, Ms. Rico, President, and Ms. Dench, Executive Director. It is my understanding, Ms. Rico, that you will make the presentation?

Loly Rico, President, Canadian Council for Refugees: Thank you for the invitation. I would like to start by saying that you have our full brief, but I have some opening remarks.

The Canadian Council for Refugees is a non-profit umbrella organization committed to the rights and protection of refugees in Canada and around the world, and to the settlement of refugees and immigrants in Canada. The CCR wants refugees and immigrants to be treated fairly and honourably, in a process that is independent and affordable. We believe that these are Canadian values and that treating newcomers fairly is good for Canada and good for newcomers.

Bill C-43 contains a number of provisions of concern to the CCR because they will lead to less fairness, do not honour Canada's legal obligations, and deny some people the right to appear before an independent decision maker.

We will focus on two of the provisions. The first is less fairness for people inadmissible on grounds of security, human or international rights violations or organized criminality. These inadmissibility sections are extremely broad and catch people who have committed no crime and represent no danger to safety or security. Among those affected are people who are inadmissible simply because they worked against undemocratic or brutal regimes. Let me give an example of a person inadmissible on security grounds that was mentioned before.

As a teenager, an Iranian girl was involved with an opposition group. She attended meetings, went to demonstrations and handed out fliers. She was arrested because of her political activities and imprisoned for five years in Evin Prison, where she was tortured. She later fled to Canada. She has been found inadmissible on security grounds because of her association between the ages of 14 and 16 with the banned group.

Bill C-43 would deprive such people of fair consideration of their situation by limiting the scope of the exemption from inadmissibility, known as a ministerial relief, to national security and public safety considerations; denying access to humanitarian and compassionate ground considerations; and imposing mandatory conditions when released from detention. These changes are inconsistent with the Canadian Charter of Rights and Freedoms and Canada's international legal obligations.

Limiting ministerial relief will prevent some refugees from making a refugee claim leading to Canada returning them to face persecution, in violation of our international legal obligations under the Refugee Convention. The proposed new wording for ministerial relief will prevent the minister from considering whether the Charter rights would be violated if a person was denied ministerial relief. The Supreme Court has already said that Charter rights must be considered. Elimination of access to the humanitarian and compassionate grounds will prevent consideration of the best interests of any affected child, contrary to Canada's obligations under the Convention on the Rights of the Child.

The other provision is less fairness for permanent residents facing loss of status because of serious criminality. Bill C-43 denies permanent residents the right of appeal to the Immigration and Refugee Board if they are sentenced to imprisonment for six months or more. Currently, it is two years. This means that these permanent residents will not have any opportunity for an independent decision maker to consider all the relevant circumstances of the case, which might include the fact that they came to Canada as a child, as in some of the cases we have presented, and have lived effectively all their lives in this country. They may have no family or connections in the country of their birth and not even speak the language. They are sometimes suffering from mental health problems, which contributed to the commission of the crime.

This is just a brief overview of our main concerns and we look forward to your questions.

The Chair: Thank you. I will now open the meeting up to questions from my colleagues, beginning with Senator Eggleton.

Senator Eggleton: Let me ask the Canadian Council for Refugees about a matter that I raised with the minister. I was surprised by his answer because I do not think he was right, but I want you to tell me how you see this. This has to do with foreign offences and convictions.

I cited the case of a 20-year-old permanent resident of Canada. He goes to the United States and uses fake identification to get into a bar while visiting the U.S. He gets fined $200 as a result of it. I said, "Well, according to the act, there is no threshold sentence that is required." Any fine in the Criminal Code carries a maximum potential penalty of 10 years and using false identification comes under that category.

My concern is that that is not serious criminality. It is an offence and punishment is merited, but that kind of thing would then put that person in a banished category. Is that your reading of it?

Janet Dench, Executive Director, Canadian Council for Refugees: I think that the example you cite was introduced by the Canadian Bar Association in their submission, and I imagine you will be inviting them to speak to you. You might want to ask them further on that.

My understanding of it is that you are correct. If the person is convicted overseas of an offence that, in Canada, has an equivalent offence, no matter how long the punishment was, whether it was a fine or a one-month sentence, whatever, then they would be subject to this provision that removes them from access to the Immigration Appeal Division and, therefore, the opportunity to have all of the factors of their case considered. I am not clear. I have not heard explained why there should be a difference between the offence committed outside Canada and the one committed in Canada.

There is also the consideration of whether there is a fair process. Some Canadians may feel confident in the U.S. justice system, although we know that Conrad Black has doubts about it. However, there are many other countries where there may be many more concerns about whether there was a fair process overseas and whether there is not the full legal process that the minister earlier told us. In Canada, we could be confident that anyone convicted had had a fair legal process. I do not know that we can say the same for all other countries.

Senator Eggleton: I also asked the minister about someone who misrepresents. Some people could do it very deliberately. He cites those kinds of cases and a person who has done some terrible things. However, there are other more minor ones, and now suddenly they will be excluded, instead of for two years, for some five years. This has an enormous impact on these people for a small misdemeanor. Is that your reading of it as well?

Ms. Dench: Yes, we have a concern about how that might affect people. We think, for example, of the impact on women who sometimes are put under pressure by family members making decisions on their behalf.

In terms of how it is actually implemented, we know that there is a certain discretion from immigration officers whether to proceed or not, and we are very grateful that in some of the cases right now the immigration officers are open to representations that are made and do not necessarily proceed to find the person guilty of misrepresentation.

I wonder to some extent whether extending the length to five years will actually mean that more people will be let off the hook, even if the immigration officer finds that there was some level of responsibility but finds it a bit too harsh to say that two years is one thing and having the person inadmissible for five years is too much. It might also lead to some immigration officers deciding that they should not continue with misrepresentation.

Senator Eggleton: You cited the case of the Iranian girl, as you have described her. She would be an adult now. I do not know how relevant this is to Bill C-43, but I think what you are talking about here is under current circumstances. You said after she spent five years in Evin Prison in Iran, she fled to Canada. She was found inadmissible on security grounds because of her association with a banned group she was in between the ages of 14 and 16 years. What banned group?

Ms. Dench: One of the Iranian opposition groups that is involved in some violent action, so that means that it is covered by section 34 of the Immigration and Refugee Protection Act. The wording is very broad. If you are or were a member of an organization that has committed a variety of different types of acts, including terrorist acts, even if you yourself were not involved in it and you might not even have been aware of it, you are found to be inadmissible.

Senator Eggleton: Even though this is against a regime we are not supportive of at all in this country?

Ms. Dench: Yes. Another example is opposition to the Libyan regime under Gadhafi. One of the cases before the Supreme Court now, Agraira, is dealing with that situation, an individual who is found inadmissible to Canada on the basis that he participated in a group that was opposed to Gadhafi. On the one hand, the Canadian government may be supporting the groups opposing Gadhafi and, on the other hand, participating in those groups makes one inadmissible to Canada. We just want to emphasize how broadly it affects people who are doing things that we, as Canadians, would often say are very courageous and correct political positions against tyranny.

Ms. Rico: For example, there are the people who participated in trying to overthrow Pinochet. At the time, Chileans were given all these protections in Canada and we were proud that Canada was one of the first countries that gave us protection. With this bill, they would be inadmissible, or they will be even deported back. That is one of our concerns. We are really concerned that it is so broad that some innocent people will be included in that decision and we will be sending people back to their countries to torture, persecution or even to death.

The Chair: I will give Mr. Collacott an opportunity to comment if he wishes.

Mr. Collacott: I would like to comment briefly, and I do it on the basis of my time as ambassador to Syria. Sometimes supporting the opposition can be complicated and, if you look at Syria today, for instance, various groups are involved in trying to overthrow a government that we do not have much time for, but some of them do have problems in themselves.

The Al-Nusra Front is clearly a hard-line Islamic group. While we certainly support their desire to get rid of the government in Syria, it does not necessarily mean we can ascribe to all of their values. Therefore, the question of opposition groups in repressive countries can be complex.

Senator Munson: Thank you for being here. It is déjà vu time. I think we went through this debate with you folks not that long ago on this particular bill. You said to the counsel here that some innocent people might get caught with this legislation.

When I asked the minister about the Convention on the Rights of the Child and dealing with teenagers or parents involved against Gadhafi and so on, he seemed to leave the impression that this will not hurt children. They are not after children; they are after the big bad guys and this would not affect any of these people.

What did you make of his testimony in that regard? I have the opinion that it does not do very much to better protect children who are caught in this legislative crossfire.

Ms. Dench: Thank you for the question. We are concerned about the rights of the child and our obligations under the Convention on the Rights of the Child. I would highlight for you two areas where we see access being closed off to consideration of best interests of the child.

In the case of people inadmissible on security grounds, which we have just talked about, the proposed amendments would prevent a person from entering the country. For example, this Iranian woman, who is now an adult, found inadmissible, would not be able to apply for humanitarian and compassionate considerations. That is the forum under the law where best interests of the child must be considered. That option for her is closed off.

Another major area is in terms of the access to appeal for those who have been convicted for six months or more, or the foreign offences. If you go to the Immigration Appeal Division, that is where all the factors relevant to the case, including best interests of the child, can be considered. By denying people access to that appeal, they will be losing the opportunity to have the consideration of the best interests of any child considered.

Senator Munson: I did ask the minister about the new authority to deny anyone entry into Canada for up to three years. I do not have a view on this; the minister was very strong in saying it gives him the authority — and Mr. Collacott, you talked about this — that the buck stops here. We understand that. I would like to get both your views on his testimony where he says the buck stops here; someone has to make the final decision. It is not a political decision but a decision based on the security and safety of our country.

Ms. Dench: From our perspective, the choice is between, as is the current state of the law, saying that our law does not allow case-by-case discretionary refusals of people based on our values of respect for the rule of law for a non- politicized process and for freedom of speech. While sympathizing entirely with the minister's desire to keep people with objectionable opinions and attitudes out of Canada, it is possible to say that it is a question of those basic values that we do not want a system that ends up with people being denied access to Canada, based on some sort of popularity poll, as offensive as their views may be.

Senator Munson: The reason I asked that is the same government wants to get rid of section 13 of the Human Rights Act, which concerns using the Internet to talk and preach about hate and so on. The government wants to get rid of that, but at the same time is talking tough when it comes to others who may come to the country to preach hate and so on. I feel a double standard there, but that is just a point of view. Mr. Collacott?

Mr. Collacott: I go back to the problems of section 7 of the Charter where we basically have given non-Canadians almost the same rights as Canadians. Many people are refused entry into countries all the time. Most of the refusals do not attract much attention; they are low key. It is high-key cases, such as George Galloway and the minister referred to as the Reverend Terry Jones who wanted to come in and preach hate. It is not the end of the world to get refused entry to a country and, as far as the rights of the child are concerned, he mentioned the case of the brother-in-law of the former President of Tunisia who was refused entry, which of course included his whole family.

It would not make much sense to exercise the rights of the child and let them in, when the relatives of the family could not come in. It may be another matter when you are deporting someone who has been living here for a while.

The numbers of cases that are likely to come up are relatively few. Again, if the minister exercises his negative discretion, the issue can be discussed. He will have to make good decisions to be able to justify them. The numbers of cases that will fall into that category are relatively few. While I think it is worth asking these questions, I do not think it will be as major a problem as some people make out.

Senator Eaton: Thank you all for coming. It is interesting and complex.

Dealing with the young Iranian woman who was part of the banned group and Mr. Agraira, have not we seen in this country and do we not worry a little bit that people might come to this country who might not want to do terrorist activity here, but will use Canada as a jumping-off ground — a nice little safe area — to plan activities in other countries that we would consider terrorist activities? Is this not for the reason the minister has decided that if you are a terrorist somewhere else, we do not necessarily want you in this country?

Mr. Collacott: Obviously, knowing someone has a terrorist background is right away a good reason for refusing entry.

Senator Eaton: Even though they might not do anything illegal here?

Mr. Collacott: No. There is a problem in that we now know that a lot of people get radicalized after they get here. That is another problem of a different nature.

If someone has a terrorist background, even though they might not commit terrorist acts here, they are a major risk. They are now discussing closing Guantanamo Bay, and they cannot find anyone who will take most of people who are still there. They know that 100 people they have released have gotten involved again in terrorist activities and have been killed or captured.

Therefore, the fact that they may not commit a terrorist act here is no reason for letting them in, if they have a terrorist background. I think we have to be quite firm on that.

Senator Eaton: We have seen other countries use Canada, have not we, as a safe haven to fight? I think the Tamil community —

Mr. Collacott: The Tamil Tigers used us as a base, yes.

Senator Eaton: Ladies, do you have anything to add to that?

Ms. Rico: I am not an expert on terrorism, but I can say I came as a refugee from El Salvador because I was living in a dictatorship. I was a woman and an activist for human rights, respecting basic human rights and for people who were dying of hunger. We wanted change.

Senator Eaton: Were you from a banned group?

Ms. Rico: No, I was not part of a banned group, but, when you are young, sometimes there are popular movements that they consider terrorism in some places but they are the only way that they can defend themselves. In these cases, for example, you know what the situation is in Iran, especially the violation of human rights of women. If you speak up, you will be in jail.

Using the case of the Iranian woman, I believe she was looking — as I did, and I am a proud Canadian — for a place where she could live her life in peace.

I am not a lawyer, either, but I am a person who believes we have some values that we will lose with this bill. For people who really need protection, we will lose that and they can go and face torture.

I understand Mr. Collacott said there are some few cases, but for a few cases, the majority will pay the price, as we say in common language. That is our concern.

Senator Eaton: There is still a pre-removal risk assessment, and we do not send people back to be killed. Anyway, I do not want to argue the point.

Do you have anything to add, Ms. Dench?

Ms. Dench: We are talking about a definition that is very broad and it has always been accepted as being overly broad. That is why the ministerial relief provision was put in there by Parliament, as a way of saying, "Yes, we cast a wide net, but we will give ministerial relief for people for whom it would not be contrary to the national interest for them to remain in Canada."

We are not suggesting situations where CSIS has some suspicions about someone. We are talking about people who are caught and about whom there is no reason to think they represent any kind of risk to Canada.

I take your concern about whether there might be some risks down the road, but that might also apply to any Canadian-born person and to any immigrant who is not part of these things. There is no reason to think there will be any correlation to the people who are no risk to us now who happen to be covered because of this very broad definition.

As Ms. Rico has mentioned, in many cases these are people who can contribute enormously to Canada because they are people who have a desire for justice, which is what has led them to be involved in groups advocating for liberation in their country of origin.

Senator Eaton: I have one more question for Mr. Collacott. You are talking about people who are convicted, are about to be deported and then apply for refugee status. Could you elaborate? I found that so shocking that they would have the nerve to apply for refugee status once they have been convicted of a crime. Maybe that is my innocence.

Mr. Collacott: That has been a route many have taken. We have received refugee claims from people from over 170 countries, including Britain, New Zealand and Australia in small numbers — but large numbers of Americans — simply because the system invites it. We are now trying to control that.

Claiming refugee status usually guarantees you quite a long time in the system. I mentioned that Mahmoud Mohammad Issa Mohammad has been here for 30 years. There is separate legislation that tried to shorten the processing period for people who come from democratic countries with a good human rights record, and other countries will not even seriously consider their claims.

I think the government is trying to simply get better balance into the system. I do not think that we will end up throwing out all sorts of people with deserving cases. However, a lot of people with very undeserving cases have been able to extend their stay here for years and, in some cases, decades. There has to be a better balance. It is not possible to get a perfect balance because there will always be marginal cases, and a lot of those have been raised this afternoon.

However, I think the public in general strongly supports the idea of reforms to the system to get a better balance and at least find more expeditious ways of getting bad people out of the country, as well as still defending our record of protecting people who need protection.

I will mention that some of my in-laws were boat people from Vietnam, who fled a tyrannical government. I have a lot of sympathy for a sound refugee system, but it has become quite unbalanced in one direction and we have to get it back somewhere towards the middle.

Senator Merchant: The minister gave several examples. When these changes are made, we are always given examples that give a picture to the audience or to people who hear about it as to why these changes are needed. You are also giving us examples that defend your situation.

I know that you had given an example in your material, and I think it is good to give examples because then we form a picture in our heads. You gave an example of a 74-year-old widow, a Sri Lankan woman. Can you elaborate on that a little bit to get another side of the coin?

Ms. Dench: Her case has been in the media. The reason we wanted to cite that example is to illustrate the point I was just making about the definition of inadmissible on security grounds being very broad.

In this particular case, she was found to be inadmissible on the basis of membership in a terrorist group, even though she was not herself a member. It was on the basis of her husband's association. Even her husband, who had been assassinated, was not actually a member of the Tamil Tigers, but he had been trying to facilitate negotiations between the government and the Tamil Tigers. The relationship that he had was enough to lead to a conclusion that she should be covered by the security and inadmissibility provisions.

The point we are trying to raise is this is a very broad net that catches both the people whom everyone would agree we do not want to have as admissible to Canada, as well as people about whom most Canadians, when they hear the stories, would say, "Well, how are these people terrorists?"

Senator Merchant: You posed some questions in your material. I asked the minister about persons who perhaps were suffering from a mental illness and committed a crime as a consequence, or people who may be sent back to a country where there is war or the circumstances are extreme. How did you feel about the minister's response to the questions that I asked, which were the things that you had posed in your material that you had sent to us?

Ms. Dench: I think that the reason that we have the Immigration Appeal Division to give the appeal is because we have a sense that there are certain circumstances in which, despite the fact that the person has committed a crime that according to the law should make them deportable, we want to give them another chance. It should be remembered that the Immigration Appeal Division does not say, "Okay, you are here for good." It gives people a probationary period. It says, "We will give you another chance."

If there are circumstances that maybe should be taken into consideration, why would we not give people access to that board? It exists. I am wondering what cases they will be hearing after this provision comes in, because it will be a fairly narrow range of cases that will even have access to the Immigration Appeal Division. It was put there by Parliament, I assume, because we understand that there are certain circumstances. You have to hear the whole story of the person.

Of course, in many cases, the Immigration Appeal Division will say, "No, sorry, you are out. We do not like what you have done, and there are not any extenuating circumstances." In other cases, they will say, "You have served your time, like a Canadian would have done, for the crime you committed, and we think we should give you another chance, as long as you behave yourself." Maybe they will impose conditions like going to AA or dealing with some of the issues that they have been confronted with.

For us, one of the big concerns is around young people, people who have come to Canada as a young child. Sometimes they have been in youth protection. In fact, the state really has been their parent and yet has not managed to get them citizenship. It is not their fault that they find themselves here with only permanent residence status, despite the fact that they have lived all their lives in Canada. In such circumstances, if they commit a crime, then it is unbearably harsh to say, "We, who failed you in failing to give you citizenship even though you have lived all your life here, we will toss you out and send you back to some country that you do not even know."

Senator Merchant: In some other material, they also mentioned that sometimes there is a circumstance where children never receive citizenship. Sometimes it is because their parent, perhaps because of the difficulties they were facing such as language difficulties, did not manage to get citizenship for these children who have lived here all their lives and really have no country to go to. They do not speak the language of the other country. Is this common that perhaps their parents have neglected to —

Ms. Rico: It is common. I can say right now, because I work with women and children, that sometimes one of the challenges is that, because they are single mothers with their children, they have some challenges economically to pay for the citizenship. It is very common in the community. I am from the Spanish-speaking community, and even in the last election there was a huge campaign in the community that we should become citizens. Some people had not seen it as a possibility. You will see it is very common.

Also, there are some youth who come as children or unaccompanied minors, because in the IRPA, under family reunification, they cannot bring their parents. They grew up here in Canada by themselves and they live their life. They notice at the end when they are adults that they want to become citizens, but sometimes they commit some mistakes.


Senator Verner: I would like to know what you think about the new discretionary power this new bill will give the minister to issue departure orders.

There were two cases in 2011 in Quebec. I will talk about one of them. A motion was adopted unanimously in the National Assembly — so by the politicians who represent all Quebecers. The motion called for the immigration minister at the time to issue a departure order for two fundamentalist militants, Abdur Raheem Green and Hamza Tzortsis — both of whom had connections to Islamic law — as they were making homophobic speeches and trivializing violence against women.

The motion was passed unanimously in Quebec, as people obviously did not want those individuals here. Do you not think that this new discretionary power would help impose the will of democratically elected officials who represent a whole population?

Ms. Dench: We understand not wanting to allow certain people to enter Canada. What we are questioning is the long-term relevance of having a discretionary power held by a political authority. Would we not rather prefer to be subject to clear laws that are applied neutrally to everyone? I think this a matter of values.

What is important to us is having rules of law that apply neutrally and are clear for everyone. People can disagree individually and collectively with the will to exclude certain individuals, but we prioritize the principle of law.

Senator Verner: Clearly, that was not quite what Quebecers thought at the time. There was another case at the Théâtre du Nouveau Monde, in Montreal, where I got personally and publically involved. French artist Bertrand Cantat had murdered his partner, Marie Trintignant, very violently — by punching her in the face — and was about to enter Canada to perform a play at the Montreal theatre. However, faced with the outcry the announcement had sparked, the theatre stated that Mr. Cantat would not be coming to Quebec.

That was a crime — in terms of sentencing — that could be linked to Canadian laws. However, the individual could have requested a special status based on a legal provision, and the immigration minister could not have banned him from entering, as he had already visited Canada — including in 2010.

I think that women at the time wanted a clear departure order for Quebec, given his criminal past and violence against his partner.

Ms. Dench: According to my understanding, this case is not relevant to our discussion today because he was already inadmissible to Canada owing to his criminal past. His entry to Canada would have required a special permission from the minister.

My understanding was that the minister was being asked not to use his already-established discretion to allow him to enter Canada. I do not think they needed this new power to ban him because the existing legislation made him inadmissible.

Senator Verner: Okay. Thank you.


Senator Eggleton: The minister said that even though the people between the six-month and two-year time frames will lose their right to appeal to the Immigration Appeal Division, they still have the right to apply for leave and judicial review in the Federal Court. He seemed to think that was an adequate substitute. Can I get your comments on that?

Ms. Dench: Well, a judicial review is a very limited scope. It is to find out whether a decision was correctly taken according to the law. If the person has committed the crime that makes them inadmissible, then the Federal Court will have nothing to overturn. It is not a forum where you can raise issues such as best interests of the child or the fact that you have lived at all times in Canada. The Federal Court is not interested in any of those arguments, so it would not serve in any way the purpose of the appeal to the Immigration and Refugee Board.

Senator Eggleton: Mr. Collacott, we all appreciate that some of these cases go on for too long. It does not serve anyone's interests, including their interests, to be here for years and years, and decades and decades, as I think you have cited.

However, in this provision, which gets down to the six-month level, and between the six months and two years gets rid of the appeal division, the concern is that it could bring in a lot of people who are not in the serious criminal category.

I asked the minister about why we do not just spell out the sections of the Criminal Code, so that we do not catch these people on misdemeanors that happen to get six months or more. They could get more just on the basis of doing community time as a conditional kind of sentencing. Would it not be better to go that route, namely, to list the crimes that require an expedited process, if we do not want those people in the country?

Mr. Collacott: Possibly, but I think it would be a major undertaking. There are so many possibilities of crimes that would be gathered in by this. Ms. Dench, for example, was asking why we need to give the minister negative discretion instead of simply listing all the grounds for refusing someone entry. I think that would be very difficult and probably impractical. In theory, possibly, but you could end up with having to have a massive volume in trying to define all the crimes.

Senator Eggleton: All serious criminality?

Mr. Collacott: I return to my earlier comments. One of the reasons I think this threshold has been lowered is that so many people were committing serious crimes, getting either two years less a day or considerably less than two years. I gave an example of someone who got three months for reckless driving.

Senator Eggleton: We do not know all the circumstances and the discretionary decisions.

Mr. Collacott: In my mind, that six-month threshold makes more sense than what has been happening under a two- year threshold.

Senator Eggleton: I want to come back to the Iranian lady. There is an old saying that one person's terrorist is another person's freedom fighter. I think there are many of people in this country who understand that they had to fight for what they believed in in the country of their origin.

I remember in the mid-1940s that people who subsequently became the heroes of the establishment of the State of Israel were called "terrorists." A couple of them became prime minister of Israel, and some of them were imprisoned or even executed for terrorism. Yet, we would look upon them today as being from one of the more democratic countries of the world and they would be considered heroes.

Here we have an Iranian girl who fought against a terrible regime. We know it is a terrible regime. They put her in prison, so, obviously, she was not very favourable to them, and we are not very favourable to the regime in Iran. However, she was called inadmissible here on the grounds that when she was younger she had an association with a banned group.

A lot of people got involved with groups. You even cited in Syria that you get the good and the bad of the different organizations collectively coming together with the common cause of throwing out something that is worse. However, the fact they have been involved with a banned group does not mean they are so attached to it. Now she cannot get in.

Bill C-43 means that the last opportunity she would have, which is humanitarian and compassionate grounds, will disappear. What a shame.

Mr. Collacott: Getting back to the question of freedom fighters versus terrorists, I do not think we have a problem with freedom fighters. However, groups that deliberately kill civilians, like the Tamil Tigers who blew up innocent civilians by the hundreds, or a group in another country that uses obviously terrorist methods, even though their objectives in terms of self-determination or more democracy may be laudable in certain respects, are the ones we have a problem with. I do not know the circumstances of this particular young lady or what her group was involved in, but I strongly suspect they used means that, even against a repressive regime, we would have problems with and we would still have problems with.

Senator Eggleton: So did a lot of Israelis.

The Chair: I must say I find this discussion interesting in that we can sit here and calmly discuss this as if everyone who carries out these activities around the world is actually a good person in disguise. The situations we have seen in Syria, Libya and other countries in the last decade certainly demonstrate that not everyone opposed to an existing regime is a nice person headed toward a democratic kind of government in the future.

Nevertheless, I think it is important for us to discuss here these kinds of aspects with regard to a bill to ensure we have things in perspective. We must not be afraid to deal with these issues to see where we go in the future.

I want to thank my colleagues for articulating their questions and thank the witnesses for giving us, once again, the best of their understanding of these issues in answers to us.

I declare the meeting adjourned.

(The committee adjourned.)