Strengthening Canada's Immigration System and Borders Bill

Honourable senators, I rise today to speak to Bill C-12, An Act respecting certain measures relating to the security of Canada’s borders and the integrity of the Canadian immigration system and respecting other related security measures.

Since I have already had the opportunity to speak to Bill C-12 a number of times, I shall focus my remarks today on the amendment I propose to you now, which would ensure proper parliamentary oversight of the use of Part 7 of the bill, granting this government — and any future government — new and sweeping powers to cancel entire classes of immigration visas and permits, and to cancel them without due process or individualized assessments, all by simply asserting that it is in the public interest to do so.

Now, I don’t think you need to be a cynic, an alarmist or an activist to look across our border and to imagine how such language could one day be weaponized by a politically motivated and discriminatory government, giving the state the power to uproot lives and separate families, without any oversight and without traditional parliamentary checks and balances.

I do not think I’m indulging in whataboutism. I think this is a clear-eyed, hard-nosed reality that we must consider.

Over the last few weeks of hearings, government officials have repeatedly insisted that these powers are administrative only, that invoking them would only cause minor inconveniences for people who lose their papers and that they are merely cancelling documents and not a person’s legal status. But that is not the way civil society groups and independent legal experts have interpreted these provisions. They have argued that if someone’s work or study permit is cancelled and they have mere weeks to obtain a new permit, that might not be possible.

Tamir Israel, of the Canadian Civil Liberties Association, puts it this way:

Status without the documents needed to work, travel, prove identity, or re-enter Canada is often meaningless in practice. In practice, permit cancellation functions as a pathway to deportation.

Julia Sande, a human rights lawyer who works for Amnesty International, offers this analysis:

The government has not adequately explained why they need these powers. They have given examples of wanting to suspend the acceptance of applications for visitor visas during the pandemic, and the hypothetical of needing to cancel documents issued due to administrative errors or cyberattacks, but the powers they are granting themselves are far broader — they can cancel existing permits and visas en masse, simply by asserting it is in the public interest. Public interest is not limited — the legislation gives examples of what could be considered in the public interest (administrative errors, fraud, public health, public safety, or national security), but the list is not exhaustive — it could be anything.

Deanna Okun-Nachoff, a Vancouver immigration lawyer who speaks for the Canadian Bar Association, shares those concerns and makes a compelling case that we need to have a method to provide parliamentary oversight of these new kinds of powers.

Let me put it in her words:

Already, our immigration system has seen increased reliance on ministerial instructions, which have seriously eroded transparency in the immigration system. Increasingly, newcomers are having their well-laid immigration plans scuppered midway by unexpected and unilateral rule changes. These concerns have and will continue to tarnish our reputation internationally, and have attracted a larger study by the commons standing committee on fairness and predictability in the immigration system.

We caution against any legislative change that will further diminish Parliamentary oversight and enable suspension or cancellation of entire classes of applications or visas by order in council on grounds that lack objective criteria. Our constitution guarantees that the law will be knowable to the public; it also delineates a clear separation of powers between the legislative and executive branches. These promises are key to the coherence and legitimacy of our legal system as a whole, and must be steadfastly guarded.

So I’m proud to stand before you today to offer one possible solution — a time-honoured method to provide parliamentary oversight by both the other place and the Senate in an efficient way that respects the rights and duties of Parliament while still allowing the government to act expeditiously in a time of genuine crisis. It’s a solution that doesn’t require a major rewrite of the bill. Indeed, it is a modest amendment that reinvigorates a long-standing parliamentary tradition.

My amendments touch on two related portions of Part 7 of the bill — firstly, a regulatory power to prescribe circumstances in which an officer can terminate an application for a visa or permit or other document, or can cancel, suspend or vary a visa or other document. While not quite as controversial as the power to make mass orders in the public interest, this is nonetheless a power to set out blanket bans or cancellations on classes of applicants or visa holders. And this amendment also touches on those orders in the public interest in which the Governor-in-Council can directly bar, suspend or terminate en masse applications for visas and permits and other documents.

Part 7 of this bill would grant the government, and any future government, extraordinary power over the rights and liberties of people legally residing in Canada or seeking to come here. Perhaps we should pause and ask ourselves why the government routinely requests our approval in this chamber and in the other place for this kind of power. Well, it’s because it is Parliament’s power — and Parliament’s power alone — to make or change legislation, to make law. In our constitutional order, there is a separation of powers, and the executive does not simply get to make the rules that bind people and, just as importantly, bind the government itself. Yes, Parliament very often delegates this power via regulation and order-making powers in statutes, but this is usually to allow the government to fill in specific technical or highly detailed aspects of a statutory scheme. It’s another thing to give the Governor-in-Council the power to take away the rights or privileges of thousands of people at their sole discretion.

But we can ensure Parliament retains an emergency override on any order or regulation the government makes under these new powers. In practical terms, it would only — indeed, could only — be used in remarkable, exceptional circumstances. But that is precisely the situation we have a duty to guard against: the prospect that a government, even with the very best of intentions, from the most honourable of motives, might go too far.

This is what my amendments seek to do. Put very simply, these amendments would require that any order or regulation made by the Governor-in-Council under Part 7 of the bill be tabled in Parliament within 15 sitting days. Then, if it were warranted, each house of Parliament could, in accordance with its own rules, choose to pass a resolution that the particular order or regulation be annulled. Both chambers would need to pass such a resolution in order for it to take effect so the unelected Senate could not unilaterally thwart the will of the elected chamber.

But if resolutions were passed in both houses, the order or regulation would immediately lose its effect. It would be deemed to be revoked, and we would have done our job instead of delegating this power away from Parliament. The power would not be retroactive. It wouldn’t undo cancellations that were already done, but it would stop the clock and allow for a review and a possible reboot.

So how is this done, legally speaking? Well, it is simpler than you might imagine because there is a provision sitting in our Interpretation Act, ready and waiting to be used by Parliament in precisely this way.

Section 39 of the Interpretation Act says that if we insert one particular phrase, “subject to negative resolution of Parliament,” into this bill or, indeed, into any order-making or regulation-making provision, then Parliament retains the power to annul an order or regulation to which that phrase applies. We don’t need to add a lot of words to the act because the Interpretation Act does the heavy lifting. We just gesture to it.

Section 5 of the Employment Insurance Act, for instance, allows the Employment Insurance Commission to make regulations, but they stand subject to what’s called an affirmative resolution in Parliament.

Now, here I must take a brief parenthetical detour to explain the difference between an affirmative resolution and a negative resolution. An affirmative resolution process provides an even stronger oversight power to Parliament. An affirmative resolution means no order or regulation can come into force unless and until both houses pass a resolution approving it.

Senator Al Zaibak did propose just such an amendment during clause-by-clause debate at the Standing Senate Committee on National Security, Defence and Veterans Affairs, but that amendment failed. So I am not proposing the same amendment here, in part because of one particularly thoughtful objection raised at committee by Senator Dalphond, which was that there might someday be a legitimate need to act in an emergency and that an affirmative resolution might be a huge impediment, especially if Parliament were not sitting or had to be recalled.

So this amendment that I am proposing doesn’t do that. My amendment would still allow the government to act swiftly in a situation that required real urgency, but it would explicitly return to Parliament the power to review that decision publicly, with public, transparent debate, within two sitting weeks of that decision or even at a later date if circumstances changed.

Having indulged in that parenthetical, let me return to my main message and remind us all that there are several Canadian statutes that already make regulations subject to negative or positive resolutions, including the Canada National Parks Act, the Firearms Act, the Canada Transportation Act, the Old Age Security Act and the Electricity and Gas Inspection Act, to name just a few.

And while Canadian parliaments have not made regular recent use of this power, it is routinely used — all the time — by the parliaments of the United Kingdom, Australia and New Zealand. The negative resolution is a proud part of our Westminster parliamentary tradition, something I hope the institutionalists in this chamber can appreciate. This isn’t an activist amendment. In fact, it is a return to parliamentary convention.

When this bill was before the other place, an amendment was added that required the minister to issue a report within seven sitting days of a cancellation order made under Part 7. That amendment would also allow committees of the Senate and the other place to review that report, but those committees would have no power to revoke or reset. My amendment goes one better and builds on the amendment made in the other place. Indeed, the two amendments dovetail beautifully, since the Senate would have the benefit of the report and, very possibly, the benefit of the committee review to inform its debate on whether to use the negative resolution powers.

When it comes to a bill that proposes to grant the Governor-in-Council the extraordinary power to directly and immediately affect the lives of thousands of people, I think Parliament ought not to surrender its customary powers — in the name of justice, in the name of procedural fairness, in the name of the Charter of Rights and Freedoms, in the names of the prerogatives of Parliament itself and the proper delineation of powers between the executive and legislative branches.