Strengthening Canada's Immigration System and Borders Bill

In amendment, it was moved by the Honourable Senator Simons, seconded by the Honourable Senator Woo:

That Bill C-12, as amended, be not now read a third time, but that it be further amended,

(a)in clause 66, on page 28, by replacing line 15 with the following:

“(b.1) subject to negative resolution of Parliament, the circumstances in which an officer may ter-”;

(b)in clause 69, on page 29, by replacing line 10 with the following:

“(b.01) subject to negative resolution of Parliament, the circumstances in which an officer may can-”;

(c)in clause 72,

(i)on page 30, by replacing lines 17 to 20 with the following:

“87.301 (1) If the Governor in Council believes it is in the public interest, the Governor in Council may, subject to negative resolution of Parliament, make an order specifying one or more of the following:”,

(ii)on page 31, by replacing lines 21 to 23 with the following:

“87.302 (1) If the Governor in Council believes it is in the public interest, the Governor in Council may, by order and subject to negative resolution of Parliament,”,

(iii)on page 32,

(A)by replacing lines 17 to 19 with the following:

“87.303 (1) If the Governor in Council believes it is in the public interest, the Governor in Council may, by order and subject to negative resolution of Parliament, amend or repeal any order made”,

(B)by replacing lines 21 to 24 with the following:

“(2) If the Governor in Council believes it is in the public interest, the Governor in Council may, by order and subject to negative resolution of Parliament, authorize the Minister to amend or repeal, by order, any order made under subsection 87.301(1) or”.

Honourable senators, I will be brief. Thank you, Senator Simons, for your proposed amendment. The government’s introduction of this measure caught me, along with others, a little off guard until I saw the mitigating elements of the scheme.

The scheme would permit the Governor-in-Council to intervene in cases of emergencies. These could be physical, cyber or national emergencies. It could involve pandemics or any form of crisis.

Where this is evident and where circumstances demand it, we would want the government to be able to act quickly and decisively. It could be several fraudulent documents or tens of thousands of fraudulent documents filed by malign actors who scammed bona fide applicants who want to come to Canada and would like a visitor visa or work permit. Indeed, they are shown that their filings were actually delivered directly to Canada, but fraudulently.

Currently, as we have heard, officials who deal with these things do not have the ability to adjust them at scale. They have to do them one at a time. Those applications and certificates — whether it’s paper-based or digital documents — would need to be cancelled one at a time. I assume we’re all convinced that in certain circumstances involving cyberattacks designed to bring down the Immigration and Refugee Board of Canada system, if not the systems of the government, then a determined response would be needed. I haven’t heard of anyone concerned with that.

My first reaction was the same as yours: What will the accountability measures be? How will this be explained to Canadians who deserve a response to a significant intervention on the part of the government?

The first thing we hear is that these aren’t made easily. They are made by the Governor-in-Council. They are made by cabinet as a whole with the Prime Minister. They are to be reported within seven days. The nature of the interventions is to be gazetted, and then there is to be a review of those interventions by a committee of the Senate and the House of Commons.

These are extraordinary fit-for-purpose review mechanisms that are appropriate to the task. We can always think of another intervention, and I applaud my colleague yet again for her creativity and knowledge of legislative or constitutional implements.

We have to assume that the nature of some of these attacks could go on for a considerable time. It could take up to several weeks to manage them. I guess this same overview mechanism could be applied.

The key thing is that we would know what was going on in almost every circumstance. We would know the nature of the challenge that was affecting the country, and we would know that it’s being addressed and precisely how it’s being addressed. The only exception to that would be in the case of a national security incident or a national security emergency in which, for obvious reasons, it is not always possible to gazette or to announce. It might require some more time. It might require some more finesse. It might be a matter of extreme urgency. It might be something that takes a while to resolve.

In those cases, eventually we would know. There would be a report of some kind on the measures taken to reduce the impact of this or to eliminate it, but it would not provide the granular details that we might expect given the national security implications.

To have this sort of mechanism in place as a further fail-safe wouldn’t apply in all situations, and I don’t think it’s necessary. It’s an artful idea, and I applaud it, but the timely transparency associated with this and then the reporting — as much as can be reported — on the nature of the emergency and the nature of the intervention that is designed to respond to it, followed by a review by a committee of the House of Commons and the Senate, provide more than enough just-in-time, as-soon-as-possible review of interventions of this nature.

I think that’s sufficient. You’ll be the judge if we need further fail-safe mechanisms. I now rest my case, as they say.

I would restate that the combination of transparency and early reporting with referral to committees of the House of Commons and the Senate seems, to me, to be enough. Canadians will know the nature, in almost every case, of the emergency or issue that prompted the response. That will be clear. They will be able to make up their minds fairly early as to whether the response was fit for purpose in relation to the issue it was designed to resolve. We would have parliamentarians in committees, representatives of the two houses, looking at and opining on those responses. That seems sufficient to me, I must admit.

If anything, my concerns are with the front end of the process, which was a surprise to me. When one thinks about it, we have to confront and be ready to confront in a direct way, through mechanisms like this, cyberattacks and things of that nature, which could happen to us at any time. I think the transparency associated with those interventions and the ability for parliamentarians to look at that after the fact are sufficient.

Do I think that this innovative measure from the Interpretation Act is necessary? Absolutely not, or I wouldn’t have spent as much time on my feet.

I think that the early review by parliamentary committees would bring to light the nature of both the emergency and the response to it. Word travels fast around here, doesn’t it? Parliamentarians at committees are parliamentarians at committees, whether that’s here or in the House of Commons. It’s in Parliament already. It’s before parliamentary committees or committees that would be representative of each house. I think that’s sufficient.

Honourable senators, thank you. That was a very good exchange between Senators Simons and Dean. It provides some clarity on what the question is.

As I would summarize it, Senator Simons provides an extra layer of parliamentary oversight with powers, whereas the current proposal in the bill only provides for reporting within seven days of the so-called emergency action. I’m inclined to go directly to the merits of the bill, and Senator Simons has already explained them very well.

It seems this debate is veering off in a slightly different direction, where we’re talking about whether it’s even valid to talk about amendments to the bill if we were to assume that the framework is correct. It is Senator Harder’s proposition that some of us here are institutionalists and others are activists. I don’t think that’s a good representation. I think we’re all institutionalists because we all believe in and support the institution. The question, surely, is whether we feel that the bill has flaws and whether the proposed remedies are proportionate to the flaws and would help produce a better bill.

I understand and greatly appreciate Senator Harder’s intervention. His voice is so important on a bill, especially one to do with immigration. He is a Burkean conservative, and that is a compliment in the highest regard. That would reflect the views that he has expressed about trust in the system and the need — in fact, the imperative — to not change anything unless the case is so compelling. His argument is that if you accept the framework to be right — and the framework, it sounds to me, is almost always right — then we should not tinker with the bill. He calls it whataboutism. Whataboutism is a problem, but there is a similar problem that could be called “there’s nothing wrong with it about-ism” or “never mind about it-ism.” That would be an equally dangerous extreme to fall into.

With respect to the immigration system in Canada, I agree that we have a well-respected system, one that allowed me to come to this country and many of us here to become Canadians, and we’re grateful for that.

I think Senator Harder knows that it was the framework of the immigration system, which was found to be flawed in 1985, that led to the creation of the Immigration and Refugee Board, or IRB, which he was the first executive director of. It was the Singh court case that found the immigration system — which did not allow for oral hearings — was flawed and unconstitutional, which led to the creation of the IRB.

This is not a critique of the civil service or an indictment of the government at the time. It is simply to say that sometimes the framework is wrong; sometimes the framework is not right or not good enough. Who’s going to spot it? Court cases can reveal it, but they take a lot of time and are very expensive. Or we can point to flaws in the framework. We’re not always right, but it’s not wrong for us to try to find flaws in a framework.

With respect to this institutionalist and activist — or framework and non-framework — debate, I hope we can move away from it because it can be used with respect to any bill that we debate. We just heard the debate on, I believe, Bill C-4.

Senator Harder is right to bring it up. We should always keep in mind the institutionalist perspective, but it cannot be used as a sledgehammer or as a kind of fait accompli for us to do “nothing about-ism.” On this bill, I invite all of us to look at the merits of the amendments — to not presume that this is a product of cynicism, whataboutism or rampant activism but to determine whether the amendments have merit.

On Senator Simons’ amendment, I want to point out a few additional things that may not have come out as clearly as she expostulated in her speech.

She mentioned that the powers to cancel or suspend en masse a variety of documents can be used in the public interest, and it’s defined in a few ways — public health, security and so on — but she reminded us that the list is not inclusive. The public interest can be defined much more broadly than the items you see in the bill. I think all of us would agree that national security, public health, and so on are important things to be concerned about, but they can go much further than that.

The other thing to point out, which she did not mention — and she knows about it, I’m sure — is that the types of documents are also not exhaustive. We have a list here in which the types of documents include permanent resident visas, permanent resident cards, temporary resident visas, electronic travel authorizations, temporary resident permits, work permits and study permits. This is a non-exhaustive list of documents.

Again, I’m not imputing any bad motives to the government or to bureaucrats, but on the face of the bill, citizenship documents could be included, as well, because the phrasing of the bill is such that the documents are only examples of the types of authorizations that can be cancelled or suspended.

Let me just conclude by saying that, even if you were to take an institutionalist or framework perspective on this amendment, this is not an issue that challenges a framework. I think that should be very clear. This is actually an amendment that is faithful to an institutionalist perspective — actually, as it turns out, our institution, not just the institution of immigration. It is entirely faithful to the institution. It does not take away, in any sense, the powers that the bill gives to the government; it is additive to the measures already in the bill. It does not stop the government from proceeding immediately with any emergency measures that it may want to put forward but simply gives Parliament the chance to say “no” if it feels that the government has gone too far.

Thank you.

Honourable senators, I rise today to speak in support of Senator Simons’ amendment requiring parliamentary review of the orders-in-council under Part 7 of this bill.

When contemplating the powers conferred in this bill, we should ask ourselves some very simple questions. How could a government abuse this power to cancel entire categories of immigration documents or applications by order-in-council? What might happen if, at a mere political whim, thousands of people could be stripped of their ability to work or their right to remain in this country through broad executive orders?

We need not look far to imagine a government that might make those decisions without meaningful notice, without moral or principled reasons, and without any opportunity for entire groups of people being affected to be heard.

These are not hypothetical concerns. These are the powers being authorized in this bill.

The Canadian Civil Liberties Association reminded members of SOCI that the Charter is very clear about what is required when state action can cause the loss of lawful status, family separation and the possible removal from Canada. These are precisely the kinds of consequences that engage section 7 of the Charter. When the liberty and security of the person are at stake, the Constitution requires, not suggests, procedural fairness.

Part 7 of this bill provides none of these protections. There is no requirement to notify those affected in advance, no guarantee of individualized consideration and no meaningful oversight. This type of unbounded discretion is precisely what section 7 of our Charter was meant to constrain.

Other witnesses echoed these concerns. The Canadian Union of Public Employees described these provisions as granting cabinet the extraordinary power to suspend or terminate visa applications and cancel immigration documents en masse under the vague banner of the “public interest.” It is a phrase that appears repeatedly in this bill, yet it is defined so broadly as to be almost meaningless. It includes administrative errors, fraud, public health, public safety or national security, but those terms can capture almost anything.

The International Civil Liberties Monitoring Group cautioned that governments have historically invoked public safety and national security to justify policies that target entire populations, sometimes by nationality, sometimes by religion and sometimes by political belief. While you may trust this government to not misuse the powers set out in Bill C-12, that is not the point. Legislation should not be written for the governments we trust; it should, at the very least, be cognizant of, if not actually and specifically be written for, the governments we fear. Just south of the border, we are witnessing a government that exploits legal technicalities and stretches broad interpretations to their limit.

The Canadian Bar Association drew our attention to the difference between the way this bill is being marketed and the way it is written. As was pointed out, Minister Diab has suggested these powers would only be used in exceptional circumstances, such as war, pandemic or mass fraud; yet, when you read the text of the legislation, those limits do not appear anywhere. All the lawyers and legal experts who appeared before SOCI said that nothing in the bill prevents these powers from being used more broadly. Even Tara Lang, the Director General of Integrity Policy and Programs at IRCC, said:

. . . all of [the cancellation powers] would be covered under the order-in-council and would explain how operationally this would happen. Again, it wouldn’t be without a good reason, and the intent is not to harm your average person in Canada.

Absent legal guardrails, it should be no comfort to any of us to merely hear that the intent is not to harm the people of Canada. Of course, that should be a given, but current global as well as historical realities that many have already discussed should provide all of us with cause for pause.

It is very clear that categorical decisions affecting entire groups of people will harm average Canadians, and while this government may not intend harm with Bill C-12, we are giving any government, current or future, ample power to exert that harm. When Parliament grants extraordinary authority to the executive, it is our responsibility to ensure there are accountability measures in place.

Senator Simons’ amendment does not prevent the government from acting in extraordinary circumstances; it simply ensures that when those powers are exercised, Parliament retains power as a check on the government.

The consequences of these orders are not minor inconveniences for the people who will be targeted or incidentally impacted. This is about people’s status, jobs, families and safety. Too often, when governments ask for efficiency, it comes at a cost to people with the least power to protect or defend themselves. Today, that cost will be borne by migrants, refugees, temporary workers, students and even permanent residents.

It will likely come as no surprise to you or Canadians writ large that I oppose any system where decisions affecting the liberty and security of the person can be made opaquely and quickly by cabinet. Barring the deletion of this section, I urge us all to insist that these decisions be subject to parliamentary restraint.

If we are to acquiesce in the granting of these sweeping powers, we must insist on some modicum of oversight. This is necessary to safeguard the rule of law as well as the rights of the minorities most affected, those whom we, as senators and this place, have a particular duty to protect.

With her permission, I will conclude with the question posed to me by Ms. Esma Boztas. Esma is a legislative intern in our office. Esma asks:

I crossed the U.S.-Canada border seeking protection nine years ago, originally coming from the Middle East. The opportunity to have my case heard in Canada ultimately allowed me to rebuild my life here.

I am now finishing law school in two months. It’s a small example of how the design of a refugee system can shape whether people are able to access safety and contribute to this country. Please clarify why a bill framed around border security, organized crime and fentanyl is also restructuring refugee eligibility in ways that risk casting asylum seekers as threats rather than as people seeking protection.

I find it difficult to answer Esma’s question with this bill.

Dear colleagues, I hope you stand up for those who do not have a voice in this process or in this place, and I hope you support this amendment.

Meegwetch. Thank you.

Honourable senators, I would also like to speak in support of this amendment, and I would like to call upon all of us in this chamber to think a bit more about the nature of the reporting of a standing committee of the Senate when reporting back to the Senate.

It is not often that we see a standing committee of the Senate make proposals to the Senate that are completely rejected. This is a particular situation, and I would ask us to think about the implications of that.

Senators heard from Senator Moodie, the Chair of the Standing Senate Committee on Social Affairs, Science and Technology, that the senators on that standing Senate committee fulfilled its mandate to be the only Senate committee to report back to the Senate on Parts 5 to 8 of Bill C-12 by meeting for over 13 hours with 35 witnesses and 36 written submissions — something that the counterpart in the other place did not do.

The committee heard from refugee advocates, legal experts, civil liberties organizations, practitioners in immigration, refugee lawyers and people with lived experience. We respected them as having expertise. We heard from Amnesty International, the Canadian Bar Association, the Canadian Civil Liberties Association and the United Nations Refugee Agency in Canada. They all raised concerns that Parts 5 to 8 of Bill C-12 represent an infringement of human rights, privacy protections, procedural fairness and constitutionality.

The amendment before us from Senator Simons is parliamentary protection against an overreach of executive powers. The Standing Senate Committee on Social Affairs, Science and Technology reported to this chamber a grave concern that such overreach may disproportionately impact children, 2SLGBTQI+ persons, women and front-line service providers.

On behalf of the senators on the Standing Senate Committee on Social Affairs, Science and Technology, Senator Moodie urged this chamber to give careful consideration and robust scrutiny to examine the legislation, not only for its policy objectives but also for its consequences on democratic governance and on the lives of people that this country needs.

In the case of Senator Simons’ amendment on the negative resolution of power and the use of the Interpretation Act to activate parliamentary scrutiny and to build on the amendment from the House, I ask honourable senators to think carefully about sidelining Parliament. And I’ll do that by quoting the sponsor, Senator Dean, that the bill as now worded applies to “any form of crisis.”

Therefore, “crisis” could apply to anything that cabinet decides is a crisis, just as governments in regressive regimes — including the one south of us — define a crisis as when citizens rely on constitutional protections of freedom of expression and freedom of assembly.

Let me invite you not to indulge in the arrogance of thinking that these violations of the rights of citizens could never happen here because Canadian cabinets have already breached the rights of citizens.

I have been honoured in Winnipeg and in different parts of the country to work with Japanese Canadians on reparations for being stripped of their land, communities and citizenship, because the cabinet of the day defined it as a crisis that these people were citizens.

Those reparations have been led by people like Art Miki from Winnipeg and Justice Maryka Omatsu, the first Japanese-Canadian woman to become a judge.

Let me address some of the stereotypes employed by some senators on debate, directed at senators who questioned this bill. May I remind you, colleagues, that we took an oath when we entered this chamber. I actually entered this chamber to take my oath with Senator Harder. It was not an oath to serve any political party, the cabinet or the government. We have taken an oath to serve this nation and this democracy.

This amendment by Senator Simons is a safeguard for democracy and the parliamentary exercise of our obligations to this nation. I invite you to take your responsibility as a guardian of our democracy and support this amendment.

Thank you. Meegwetch.

Are honourable senators ready for the question?

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

All those in favour of the motion will please say “yea.”

Some Hon. Senators: Yea.

The Hon. the Speaker pro tempore: All those opposed to the motion will please say “nay.”

Some Hon. Senators: Nay.

The Hon. the Speaker pro tempore: In my opinion the “nays” have it.

I see two senators rising. Do we have an agreement on the length of the bell?

Fifteen minutes. Is leave granted?

The vote will take place at 6:13 p.m. Call in the senators.