Strengthening Canada's Immigration System and Borders Bill

Honourable senators, I rise in support of the proposed review amendment. However, I have some reservations about how its application and scope would work without further amendments to limit the bill’s current impact, particularly on vulnerable groups, and without a sunset clause.

We heard affected organizations testify before the Standing Senate Committee Social Affairs, Science and Technology, as well as the Standing Senate Committee on National Security, Defence and Veterans Affairs, particularly about the impact on asylum claim mechanisms. Although all of the amendments were rejected during clause-by-clause consideration, I believe that we have one last opportunity that we must take now, at third reading, to bring our apolitical sober second thought to bear on the consequences of Bill C-12.

The extraordinary measures set out in Parts 5 to 8 of Bill C-12 are being presented to us as a remedy for an immigration problem that stems from the current context. For that reason, it’s important to implement a monitoring and review mechanism to ensure that the bill’s effectiveness is properly assessed and to strengthen accountability and transparency.

In March 2022, the Journal of Parliamentary and Political Law published an article entitled “Much Ado about Parliamentary Review” by Charlie Feldman, former president of the Canadian Study of Parliament Group and former parliamentary counsel for the Senate. His observations should serve as a warning: The majority of reviews were not completed by the statutory deadlines.

My office reached out to the Library of Parliament to request information about statutes with review clauses that have not been respected to date by the government, and the results corroborate the concerns I’m sharing with you: The government is not complying with all of its statutory review obligations. My office would be happy to share the list of the statutes in question.

I will just list a few of the statutes whose reviews are overdue: the Statistics Act, which should have been reviewed in 2014; An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, which should have been reviewed in 2011; the Wrecked, Abandoned or Hazardous Vessels Act, which should have been reviewed in 2024; and the National Security Act, which should have been reviewed in 2023. There are more.

Let’s go back to the proposed review clause. I would have liked to see a firm date attached to it, to prevent the government from delaying or circumventing the obligation it sets out.

Honourable senators, how do we ensure that future governments comply with review clauses, and this review clause in particular? As soon as Bill C-12 is passed, Parliament should launch a transparent consultation and monitoring process on the application of the law with all stakeholders. I believe that we have a duty and a responsibility as parliamentarians to do this here in the Senate.

Thank you.

Honourable senators, I rise today to speak in support of the amendment moved by the government sponsor, Senator Dean, to include a mandatory five-year parliamentary review on Bill C-12.

At the outset, I accept that the current environment demands change and that inefficiencies in our system require attention. Governments have a responsibility to respond when systems are strained. However, when governments seek significant new powers or introduce substantial departures from established practices, Parliament also has a responsibility to ensure those powers are subject to meaningful scrutiny.

The proposed parliamentary review is therefore an important step forward by the government in acknowledging that the measures in this bill warrant future examination. It suggests accountability. It reflects a basic truth about public policy: Parliament does not legislate in a vacuum. It also implies that Parliament will eventually return to examine whether the powers it has granted remain justified. In short, a review creates an opportunity for evidence. That opportunity is particularly important in the case of Bill C-12.

Throughout debate on this legislation, the government has argued that these measures are necessary to address significant abuse within Canada’s asylum system. Claims of widespread fraud have been cited as justification for the new enforcement tools and procedural changes contained in the bill. Yet, despite repeated requests from senators and stakeholders, clear data demonstrating the scale of this problem has not been provided by the minister or her officials. This should give us pause.

Some refugee advocates and practitioners who work directly within the asylum determination process suggest that confirmed cases of deliberate fraud appear to number in the dozens annually, not the hundreds or thousands sometimes implied in public discourse. If that assessment is even partially accurate, then Parliament must be cautious about legislating on the basis of narrative rather than evidence.

Honourable senators, I’m not naive. This does not mean fraud does not exist. No system is immune to abuse. However, it does raise a legitimate question about proportionality.

Public policy should always be grounded in reliable evidence. When that evidence is incomplete or contested, Parliament has a responsibility to build mechanisms into legislation that allow its impacts to be studied and assessed over time and, if necessary, changed. That is the promise of a parliamentary review. However, experience tells us that review clauses often appear far more robust on paper than they prove to be in practice. In reality, reviews frequently become procedural formalities — delayed, diluted or quietly ignored.

Scholars studying post-legislative scrutiny have consistently found that reviews lacking meaningful consequences tend to be weak and ineffective.

I’m pleased, Senator Dean, to see that, in your latest iteration of your amendment, you address some of the shortcomings of having a review without ministerial responsibility or an obligation to report on the findings within a certain period of time.

However, I do want you to keep in mind that one study examining statutory review provisions in federal legislation found that, over a 20-year period, Parliament inserted 51 review clauses into federal bills. This is really important. Of those 51 provisions, fewer than one third — only 17 — ever produced a report. In short, honourable senators, a review without consequences is oversight in name only.

The amendment before us establishes a review mechanism, and it now requires Parliament to act on the information it produces. That is a welcome step.

You will notice that I had to change my speech because the amendment came in, and I’m thankful for some of those changes, Senator Dean.

I want to speak a little bit about what we might consider as we think about passing this particular amendment. Does it go far enough? Does a review go far enough? Do the mechanisms in this amendment go far enough?

In 2001, when the Senate studied Bill C-36, the Anti-terrorism Act, senators recognized that extraordinary powers require extraordinary accountability. The Special Senate Committee on Bill C-36 examining the legislation concluded review provisions alone were insufficient. To ensure meaningful oversight, the committee recommended pairing review mechanisms with sunset clauses — yes, the “s” word — provisions that would cause extraordinary powers to expire unless Parliament affirmatively decided to renew them. The reasoning was straightforward: The review gathers evidence.

Some may suggest that comparing this legislation with anti‑terrorism legislation is comparing apples to oranges. It is not. The Anti-terrorism Act introduced exceptional powers in the name of public interest. That should sound familiar to people in this chamber. Today, the government is making a similar argument to justify the measures contained in Parts 5 through 8 of Bill C-12.

In 2001, the government of the day — a government I was part of, as I was then the director of communications to the then-minister of justice, who was moving the bill at the time — accepted that the logic of incorporating a sunset clause into the most contentious provisions of the legislation made sense.

Honourable senators, I want to be clear about one matter: At this stage, we are debating the amendment establishing a parliamentary review and some additional measures. I intend to move a complementary amendment that would add a sunset clause. I think we must give that question some consideration.

Without a moment of democratic reckoning, a review risks becoming exactly what critics of post-legislative scrutiny have long warned about: a symbolic gesture that creates the appearance of accountability while leaving the underlying law untouched. Honourable senators, Parliament can do better.

There is no doubt in my mind that this bill will pass. The government will receive the authority it seeks. If we do open our minds to a sunset clause, it would not prevent anything material in this bill from happening. It would ensure that five years from now, the government of the day must return to Parliament and justify whether these powers remain necessary, and it would ensure that a decision be made not in the heat of urgency but with the benefit of evidence gathered through parliamentary review.

In that sense, a sunset clause does not weaken a review process. It strengthens it. It gives this review purpose and its findings consequence. It ensures that our Parliament ultimately decides whether the extraordinary powers contained in this bill should continue with the benefit of data collected over five years. This is restraint in every principled sense of the term, and we have been talking a lot about restraint in this chamber.

I will support the amendment brought forward by Senator Dean.

I would like to take the opportunity to thank you, Senator Dean, for your openness to the conversations around this bill, as it is a consequential bill for the future of Canada.

Colleagues, I encourage you to support this amendment. Thank you.

Honourable senators, I would like to speak in support of the amendment proposed by Senator Dean and thank him for his stewardship of this bill. I would also like to echo Senator Mohamed’s comments about his openness and his willingness to listen to critics of the bill and do his best to accommodate the concerns we have expressed to him.

I will use this opportunity to foreshadow a number of amendments to this bill that will be forthcoming in the days ahead. One we have already heard about from Senator Mohamed: the sunset clause. I might add that we adopted a sunset clause just a few days ago from Senator Dalphond, and with good reason. In some senses, the case for a sunset clause on this bill is even stronger, to the extent that these are extraordinary powers that the government is looking for, particularly the power to cancel or suspend a very wide variety of immigration documents, including things like permanent resident cards, temporary resident visas and so on.

One might argue that, in this moment of immigration anxiety we are in, with pressure from the United States and with backlog problems, we need these extraordinary powers to clear the backlog. I’m sure Senator Dean would not use this language, but there is an implication that these powers are needed to clear the detritus that has been accumulating for some time.

If that’s the case, then it should be sunsetted. It should come to an end at some point, much like the terrorist laws that Senator Mohamed alluded to earlier.

This is a foreshadowing of that amendment, which I hope we will support as we, I hope, support Senator Dean’s amendment.

I also want to foreshadow other amendments because I want to invite all colleagues to think about the types of changes that we might consider for this bill. Senator Dean did a very good job of explaining the bill. Unfortunately, there was no time to question him.

He, of course, put forward a strong case for the government’s position as to why the bill is necessary. However, I think you all know that a large group of senators has been concerned and working very hard over the past few weeks to identify ways to improve the bill in a surgical way. I don’t need to remind you of the advice we received from many groups, including a bar association, human rights groups, migrant rights groups and civil liberties groups. I have never seen such unanimous agreement from these kinds of groups as in this call for the complete excision of Parts 5 to 8 of the bill.

I can assure you that senators who are part of this group looking to improve the bill are not going to propose that we excise all of Parts 5 to 8. Rather, we have been working on ways to improve the specific portions of the bill that will preserve the government’s intent of having a better handle, if you will, on the immigration and refugee processing system while protecting our commitment to the rule of law, human rights and basic fairness and decency.

On this amendment, there is not much more to say. Senator Youance and Senator Mohamed did a very good job of reminding us that reviews are pro forma. I don’t want to say they are “brush-off amendments,” but they feel a little like brush-off amendments because even we don’t take them very seriously.

Even if we have this parliamentary review five years from now, the government hasn’t really paid attention to the concerns that we have raised. Why would we expect them to pay attention five years from now when we may possibly raise the same issues?

This is not to oppose the amendment; it is just to say that you should think of it as a way to maybe assuage our concerns somewhat but not, clearly, as a way to make change.

Let me finish by giving you a preview of the ways we can make some changes now as we debate third reading and consider a number of amendments. There is, of course, the sunset clause idea that Senator Mohamed will soon propose. Senator Youance, I believe, will be proposing an amendment — not to steal her thunder, but I want all of us to think about it — to do with the exemption of minors from the one-year rule. These are minors who came to the country under the guidance and instruction of their parents or guardians. They should not be penalized for having been in the country and have their clock started for applying for refugee status at that time.

There will be an amendment on greater parliamentary oversight of the extraordinary powers that this bill will grant the government to cancel or suspend a whole range of documents. Don’t forget that these powers were used in a very discriminatory way. My community knows that very well.

The Chinese Immigration Act of 1923 prohibited all Chinese people from coming to the country and required every Chinese person in the country to carry an identity document — only Chinese people. Without that document, they could be fined, jailed or deported. It was a blanket decree that provided for great discrimination against one community. I’m not saying this government will use the powers in that way. But this is a law forever. There is no guarantee that a future government may not use that kind of power.

We never imagined the United States would be using the powers that it is using. Again, we are not the United States. Of course, we are not the United States, but the lesson is that good intentions can go wrong very quickly.

A fourth amendment that is likely to be proposed as well is to have a requirement for oral hearings for the PRRA process, even when the applicants are not in the country. This can be done by video. It is not difficult. It is a requirement. It is the gold standard for asylum hearings recognized by the UNHCR, the UN Refugee Agency. We have been lobbied by the UNHCR to maintain this practice. It is not clear why we can’t continue to do it.

There will also be an amendment to change the eligibility or cut-off period. Currently, it is one year. Senator Dean is correct: Many applications probably do take place within one year and should take place in one year. But you can easily think of many reasons why someone would not feel the courage or have the ability, or where the circumstances did not permit or were not such that an application could be made within one year.

There will likely, from one of our colleagues, be an amendment to extend that period of the cut-off from one to a greater number of years.

I know there is going to be some argument about the problem in B.C. of extortion and criminals who are exploiting the ability to apply for refugee status so they could be here for two years or more and apply for refugee status. Of course, it is a problem. But if your intent is to close a loophole for anyone who is a criminal trying to use a refugee application, then the deadline should be zero months. Why one year? Because there will be extortionists, presumably who have been in the country for less than one year, and they could apply. What are you going to do about that?

The solution is not in the timeline. The solution is in the criminal justice system. It is in the inadmissibility criteria. We already have inadmissibility criteria that take precedence over immigration criteria.

Also, to foreshadow an argument that is likely to be brought up by my own Premier of British Columbia, it is unfortunate that we are using alarmist scare tactics to overturn a principle that we should be adhering to.

Of course, the sixth amendment that I’m aware of — and foreshadowing again today — is the sunset clause. Spring is coming. The sun is setting later. We should also look at allowing this bill to have a sunset in its due course.

Thank you, colleagues.

Honourable senators, I intend to be brief. I will not be foreshadowing anything; I will leave that to Senator Woo. I particularly won’t be foreshadowing any of the amendments that might or might not be coming down the pipe.

I want to comment specifically on debate on Bill C-12 and on the amendment from Senator Dean.

As we all know, over the last few years in the country there have been serious concerns from all Canadians regarding our immigration system, particularly concerns by immigrants themselves and those who have come through a system that has provided Canadians promise and opportunities in a very concrete and organized fashion.

It seems like, over the last few years, for a variety of reasons, our system has been failing and slipping.

I also want to highlight, for those who have concerns that there are overarching and overreaching powers with this particular bill, that ministers of immigration, for decades, have had great privilege when it came to issuing directives and regulations with respect to immigration. There is nothing here that I think has not been exercised in one form or another in the past.

Another thing that is important to also understand here is I think that this amendment has been very well thought out. Consulting has been done, is my understanding.

I also want to point out that Bill C-12 was a collective effort by a minority House of Commons where the opposition parties all had input in building this bill. There was a consensus found on it. That is why you have the government and the opposition overwhelmingly supporting Bill C-12. It is something that the Canadian public is calling for quickly.

Again, I want to compliment Senator Dean because my understanding is he has shown, once again, what an outstanding legislator he is, because the government has been consulted on these changes. My understanding is that the official opposition, as well, is in favour of these changes. I want to compliment you on that and add our voice to support this amendment.

I know to some it is appalling when the opposition and the government work together to build good legislation. They think that the opposition should be only opposing. But we believe that a constructive, credible opposition is an opposition that works with the government and all legislators to try and find solutions that Canadians call for.

I want to highlight, for the vast minority in this chamber who actually believe an opposition is one that opposes, that, no, the official opposition in Parliament gets its mandate from the electorate and from the 42% of Canadians — the 8.3 million Canadians — who elected that opposition to do a job in Parliament, both in the House and in the Senate. That is where I will end my remarks.

Thank you, colleagues. We do support Senator Dean’s amendment.

Will Senator Housakos accept a question?

Your Honour, I offered to be brief. I gave my remarks. I will not take questions.

Honourable senators, I will be short, even shorter than Senator Housakos.

I understand the opposition and the government are supportive of this amendment. I’m glad to hear that.

We are in a difficult situation because I want to ask a question, but there is no way to ask it, so I’m going to put it on the record.

What is being proposed is that we’ll have a report from the minister about those claimants who entered into Canada and, unfortunately, made their claim after the one-year period. There is nothing in the amendments proposed that refers to those entering from the U.S. and who have not claimed within 14 days. Is it a mistake, an oversight? Maybe the opposition or the government knows. Or was it something that was done on purpose? I don’t know. I’m just asking the question: Why one group is included and the other group is not?

Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

(Motion in amendment of the Honourable Senator Dean agreed to.)