CIMM Committee Meeting

     Good afternoon.

    This is the Standing Committee on Citizenship and Immigration, meeting number 33, pursuant to the order of reference of Thursday, September 23, 2010, Bill C-35, An Act to amend the Immigration and Refugee Protection Act.

    This is a carry-over from the last session. We have Ms. MacNeil and Ms. Ménard with us from the Department of Citizenship and Immigration.

    Ms. Chow, I think we left off with you on NDP-8.

    (On clause 2)

    Thank you, Mr. Chair.

    I move that clause 2 be amended by adding after line 11 on page 3 the following:

    This is a suggestion from some of the witnesses we've heard to make it clear that they have to be public and tell us on the application if they are using a paid service. If their daughter or a relative fills in the application, that's different. But they need to disclose the use of an entity. The same as we do on the income tax form, there's a box in the lower left-hand corner to say that you used someone to fill in the form. I think that would be a good approach.

    Thank you.

    Mr. Dykstra.

    Thank you, Mr. Chair.

    I wonder if the staff can give us a perspective on what the current practice is within the ministry, and perhaps outline why this is more a regulation issue than an amendment to the legislation.

    Ms. MacNeil.

    The authority presently exists under section 10 of the immigration and refugee protection regulations to return an application where a representative is not disclosed. It provides that if there is representation for a fee, an application shall include the name of the organization of which the person is a member and their membership number.

    So this issue is currently dealt with under regulation. It gives the authority to return applications where the identified representative is not an authorized representative or if an application is suspected to have been submitted by a representative who is not an authorized representative or not disclosed.

    There are provisions in the regulations. They'll certainly be amended should Bill C-35 come into effect. They can be strengthened at that time.

    I would also like to point out that the amendment as proposed does not specify “for consideration”. That is an additional issue with it.

    We certainly understand Ms. Chow's intent. The minister has done so in the letter that he sent to her indicating that the regulation will be strengthened by amending the regulations, as Ms. MacNeil mentioned, once Bill C-35 comes into force.

    I understand the intent of the direction in which Ms. Chow would like to go, but I think it's important for the committee to understand and accept the fact that there are things that belong within the legislative framework of the bill and there are things that belong within the regulatory framework. I think there is agreement across the board that this should be strengthened, but it should be strengthened through regulation and not through legislation.

    Can I just ask Ms. MacNeil and the staff how it would be strengthened? Would it be done in the regulation and not through the act? In what way would it be strengthened in terms of disclosure requirements?

     As I say, we use it currently as an authority to return an application. It could be strengthened to achieve what you're seeking to achieve. The effect of what your amendment would do is create a situation of non-compliance with the act. So you could have some strengthening to that effect, basically to require disclosure.

    What our current regulation does maybe doesn't go that far. It depends on how it would be interpreted. We currently interpret it as the authority to return an application. We do that because we're not looking to go after the individual applicant in most instances; we really just want to return the application to signal what our structure is. We don't want to punish the applicant, in most cases, unless there's something else to pursue the applicant with, such as misrepresentation or something to that effect.

    So if this motion is withdrawn, it is your intention, through the regulation, given that the minister in his letter said to strengthen disclosure--it just wasn't clear as to what the strengthening means--to say that if you don't disclose, then you're not complying with the act? Is that how you would go about doing it?

    We could go that far, but it remains to be seen as to how a regulation could be structured. But that's a question as to whether we go that far or whether we just create a stronger requirement to disclose.

    Is there a problem putting it in the act versus putting it in the regulation, given that that's the intention anyway, if I'm hearing you right?

    Well, it's more about the consistency. IRPA is meant to be framework legislation. The Immigration and Refugee Protection Act is really meant to be framework legislation, with the details contained in the regulations. That's the way it's structured. That's why we currently have such a provision in the regulations.

    Mr. Chair, may I just ask, through you to the parliamentary secretary.... I think there is no debate as to why we want to strengthen this area. I have no problem withdrawing this as an amendment to the act, but I do want to see it in the regulations.

    So if I'm hearing that it is the intention to strengthen the act to the extent that it would say that if you don't disclose, then you're not in compliance with the act.... It's a very serious warning that you have to disclose that someone is helping you put in this application. That would deal with the ghost consultants, in a way, especially overseas, where we really don't have a lot of control. But if we can control it through regulations, if that's the intention, then I have no problem withdrawing this.

    Mr. Dykstra.

    I think it is the intention to attempt to deal with that at the regulatory stage. It's pretty hard for me to sit here and commit to exactly what's going to be in those regs when we haven't actually even passed the bill yet. But I will say this: when this issue comes up, why don't I ensure that you and I have a chance to sit down with the folks at the ministry to have a look at it to make sure it attempts to address the significance you're suggesting?

    Then it can be as strong as it can be.

    Well, at least then you'll see and we can have some input into that process at the time.

    All right, Mr. Chair. I don't mind not proceeding with this one and leaving it to the regulations.

    Does she have unanimous consent to withdraw?

    Some hon. members: Agreed.

    Agreed, but I'd like to make a small comment just on the intent and on this issue around that before we do--not one that's going to get in the way of anything. We as well agree with the intent of encouraging compliance and the utilization of registered and qualified consultants. But I would hope that when it is figured out how to word this into the regulations, proper care is put to make sure that it doesn't render people even more vulnerable. You know, if they're told by a crooked consultant--who's not going to be compliant on all sorts of levels--to lie on their application and not say they're using that crooked consultant, that it then doesn't bounce back as something that's going to further penalize people who are in a vulnerable position.

    I know there are ways around that and the intent is not there, but I just wanted to highlight that particular issue. I'm willing to grant unanimous consent to withdraw.

    (Amendment withdrawn)

     It's withdrawn.

    Mr. Trudeau, are you proceeding with Lib-4?

    I don't know, Chair. Am I proceeding with Lib-4?

    I think I advised you earlier that I was going to rule it inadmissible because it's beyond the scope of the bill, but....

    My original comments were about the difficulty of passing a bill at the same time as we're in the process of regulation and the conflicts and complexities around that stance, but I accept the withdrawal.

    Ms. Chow, are you going to proceed with NDP-8.01?

    I thought it was 18.02.

    Number 18.01 is the Liberal one. We've already dealt with it.

    Oh, okay. It was motion 18.02, but my motion is 18.01. Okay, I've got you. Sorry.

    She hasn't made it yet.

    It is in order, I believe.

    No.

    Oh.

    You can go through the process and then make the motion.

    The motion will now read that Bill C-35 in clause 2 be amended by adding after line 11 on page 3 the following:

I thought “may” rather than “shall” would give it a bit more latitude.

    What I've--

    Before you get into debate, Ms. Chow, now that you've made the motion, it is inadmissible, from the chair's perspective. It's beyond the scope of the bill. If you wish me to elaborate, I will, but that is the ruling.

    It is not admissible because the span....

    It is beyond the scope of the bill.

    Even though it is to catch--

    All right, I'll proceed.

    Bill C-35 amends the Immigration and Refugee Protection Act by providing the minister with the power to designate a body whose members may represent or advise a person and to require the body to provide information to the minister.

    This amendment attempts to require the minister to stay a removal order under certain circumstances. House of Commons Procedure and Practice, second edition, states at page 766 that “[a]n amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill”.

    It's my opinion, as chairman, that the requirement to stay a removal order is a new concept that is beyond the scope of Bill C-35 and is therefore inadmissible.

    Thank you.

    (Clause 2 as amended agreed to)

     Ms. Chow, are you intending to proceed with NDP amendment 8.1?

    Yes, I am.

    I move that Bill C-35 be amended by adding after line 11 on page 3 the following new clause:

    That deals with the smugglers. It is reversing the onus of proof.

    I will be ruling as chairman, Ms. Chow, that the proposed amendment is beyond the scope of the bill.

    I'm sorry to go through this exercise, but until you make the motion, I have to wait and see what you're going to say.

    That is the end of the proposed new clause 2.1.

    (Clause 3 agreed to)

    (On clause 4)

    The Chair: We are now on to clause 4 and NDP-9. I'll just advise members, particularly the government, that if NDP-9 is adopted, G-4 cannot be moved, as a result of a line conflict.

    Go ahead, Ms. Chow.

     This is to amend clause 4 by replacing line 19 on page 3 with the following: “time after”.

    So basically there would be no limitation period. I know there are other suggestions in there, that it should be five years or ten years. I don't understand why there should be a limited period, because if somebody commits a crime, then we should go after them. Sometimes it might take more than five years to prove it.

    Monsieur St-Cyr.

    Mr. Chair, I will be brief. I would like to make a comment. I completely understand the decisions you have made about the admissibility of some of the amendments before us. I also understand that the procedure requires it.

    Since this session is being recorded, I would just like to share my frustration as a parliamentarian. The committee is hearing a great deal of testimony and it is difficult to introduce amendments because the scope of the bill is very narrow. It is difficult to deal with. We are certainly not going to be able to solve the problem at this committee. I just wanted to say how concerned I am.

    Coming back to the amendment before us, I am opposed to it for two reasons. First, in my opinion, the French version says the opposite of the English version. Second, and this is very important, having no limitation period goes too far. The clause is talking about summary offences, the less serious ones. Anyway, it is unlikely that any police force is going to wait 10, 15 or 20 years to investigate an offence of which there will likely be no trace left, let alone evidence, and which no one is interested in any more. So I am going to vote against the amendment.

    Just to respond to your first comment, I have no response. I'm not bound by, but I listen very carefully to, the recommendations of the clerk, and I generally follow those recommendations--not always, but generally.

    Mr. Dykstra.

    Thank you, Chair.

    Again, I certainly applaud Ms. Chow's intent, in terms of how she wants to move forward and put in an indefinite period of time.

    I would say to the committee that there is no precedence anywhere in our federal legislation for an indefinite period of time to be put forward on a summary conviction. There are, in fact, a number of other ministries that do, under summary conviction, stipulate a period of time following the act or the injustice, if you will. They include the Canadian Environmental Protection Act, which says up to two years; the Competition Act, which says up to two years after the subject matter arose; the Export and Import of Rough Diamonds Act, which actually says three years. This one's quite interesting: the Canadian Human Rights Act actually says one year after the subject matter of the proceedings arose. I can go on. There are a few more in here, Mr. Chairman.

    I would suggest that whatever timeframe we put on this, we'll be setting a precedent in the legislation. We would be prepared to submit a subamendment giving a period of 10 years. I think, from a summary conviction perspective, a period of a decade would be more than enough time to pursue the matter, but I do think we need to differentiate between indictable offence and summary offence. Indictable has no time limit; summary convictions have always moved within a timeframe of somewhere between six months and a couple of years. So I would ask if she would consider a subamendment to say a period of 10 years.

    I don't know whether Ms. MacNeil or Ms. Ménard would want to—

    We're probably getting ahead of ourselves, Mr. Dykstra, because I notice that's what you're suggesting in amendment G-4.1. If you don't like Ms. Chow's amendment—

    It could be a friendly amendment.

    —you should vote against it, and we would then vote for or against amendment G-4.1.

    Okay.

    Is there any further debate?

    Ms. Wong.

     I agree with what Mr. Dykstra just said.

    I'm asking if Ms. Chow can table her amendment and let the government one go through first. Then, if it's approved, there is no need to look at hers.

    That's fine. I don't mind that.

    Is that agreed?

    Some hon. members: Agreed.

    The Chair: Mr. Dykstra, on amendment G-4.1.

    I move that Bill C-35 in clause 4 be amended by replacing line 19 on page 3 with the following:

    You've made your presentation. Is there further debate?

    Ms. Chow, and then Mr. Trudeau.

    I support that. The reason I want to extend it beyond five years is that I know, for example, some of the applications to sponsor a parent sometimes take five to eight years. If you found out some crooked consultant had cheated you and you didn't file your complaint early enough because you didn't know they cheated you...because it takes five to eight years to process the sponsorship, I was worried. Ten years would be better than five, so I would support that.

    Mr. Trudeau.

    My question is for the legal and the analysts. Are we setting a precedent by setting it to 10 years, and in what direction are we going? I certainly take Monsieur St-Cyr's comment that in terms of summary convictions we are usually talking about minor offences that are brushed aside or dealt with, with alacrity. I think the difference between five or 10 years, in practical terms, won't have much of an impact, and I therefore worry about the changes we're making to our habits, as legislators.

    To follow up on what Mr. Dykstra mentioned, it is extraordinary to have such a time limit. The examples we uncovered did not go into a period of 10 years. In the examples that were uncovered, the period was three years; many of them were in that range.

    These are exceptions to a generalized example under the Criminal Code, where many charges have a six-month period for summary convictions. It is quite extraordinary to have a 10-year period for a summary conviction.

    Ms. Chow, and then Monsieur St-Cyr.

    I would imagine, for example, if a consultant said, “I'll put in the application for you to sponsor your parents and your younger brother to come to Canada”, and then subsequently the consultant didn't, that would not be a serious offence. However, if you waited long enough, that brother could become an adult and he would never be able to be sponsored under the family class application. It may take years for the applicant to find out the application didn't even go in. By that time, five years could have passed, because sometimes the wait times for sponsoring a parent can take five years. They may not realize that.

    Am I correct, though, that not putting in an application is not a serious offence? It actually has huge implications for the brother, or for the Canadian whose brother is never going to be able to come into Canada because he is over age. He is permanently separated because this consultant didn't put in the application, as he said he would. That's a small offence, but it would sometimes take more than five years for the applicant to know. That would be a summary.... It's not a huge offence. Am I correct on that?

    It would of course depend on the specifics of the case as to when it would be determined that the subject matter arose, for when the crime is deemed to have been committed. It would depend on the subject matter or the specifics of the case. But it is possible that there would be those serious consequences, or similar serious consequences, in an immigration matter.

     But this would not be an indictable offence, by not putting in an application, for example.

    Mr. Chair, I think Ms. Chow has a very valid concern. It may be an indictable offence; it may be a summary conviction. I really can't say. It would depend upon the facts of the case.

     It's probably not an indictable offence.

    Monsieur St-Cyr.

    I have three questions.

    This is a technical question, but choosing to proceed against someone by summary conviction rather than by...the French for “indictment” escapes me.

    It's “mise en accusation” .

    “Mise en accusation” , there we go. Thank you.

    In law, this is a choice the prosecutor makes. So, if the limitation period for summary conviction is over and he still feels that the crime is serious enough, he always has the option of proceeding by indictment in the time-honoured way. So we are not depriving the prosecutor of any option to proceed against someone after the limitation period has expired. We are just taking away his option to do so by summary conviction. He can always do it by indictment.

    Did I understand correctly?

    I think so.

    Now, in the situation that Ms. Chow brought to our attention—a person adversely affected by a consultant's decision that resulted in financial losses or the loss of opportunities to reunite a family—would it be correct to say that that the limitation period mentioned here would apply to the legal sanctions against the consultant but would not apply to any civil action that an individual might want to bring against the consultant for those losses?

    Mr. Chair, yes, I agree that the applicant who feels that he or she has been wronged would always have the ability of pursuing a civil action.

    Before I finish, I would really like to understand. The amendment before us suggests extending the limitation period to 10 years for a summary conviction. But Bill C-35 already amends the act to make that limitation period five years.

    Is it true that it is six months at the moment? If Bill C-35 were not passed, would it be six months for a summary conviction?

    Let me check.

    Okay.

    Yes, sir, it is six months.

    (Amendment agreed to)

    (Clause 4 as amended agreed to)

    (On clause 5)

     We're now onto clause 5, amendment G-5.1.

    Mr. Dykstra.

    Sorry, where are you?

    Well, I assume you're not proceeding with G-5; you're proceeding with G-5.1.

    That's correct.

    Reference 4753579.

    So moved, that Bill C-35--

    Debate.

    Well, he said, “so moved”.

    That's fine. If you don't need me to read it out, I don't need to read it out. Everybody has read it. Everybody knows this bill inside out.

    I'm sorry. Is there anyone who wants him to read it?

    Mr. Justin Trudeau: Mr. Chairman, you know what? I think we all want him to read it.

     I move that Bill C-35 in clause 5 be amended by replacing line 32 on page 3 with the following:

    Seeing no debate...?

    Well, after I read it.

    We understand it.

    (Amendment agreed to)

    The Chair: Mr. Dykstra, G-7.

     Yes.

    You're not going to proceed with G-6, I don't think.

    No, I'm not.

    I move that Bill C-35 in clause 5 be amended by replacing line 33 on page 3 with the following:

    (Amendment agreed to)

     Mr. Dykstra, G-8.

    I move that Bill C-35 in clause 5 be amended by replacing lines 37 to 39 on page 3 with the following:

    Basically it makes for the provision of information to governing bodies so that they have to disclose their information properly. I just wanted to clarify to make sure that would be the case.

    (Amendment agreed to)

    (Clause 5 as amended agreed to)

    (On clause 6--Persons authorized to represent, advise or consult)

    Amendment G-9.1, Mr. Dykstra.

    Same thing. So moved.

    (Amendment agreed to [See Minutes of Proceedings])

     Mr. Dykstra, G-10.

    I move that Bill C-35 in clause 6 be amended by replacing line 18 on page 4 with the following:

    (Amendment agreed to)

    (Clause 6 as amended agreed to)

    (Clause 7 agreed to)

    (On clause 8--Order in council)

    Monsieur St-Cyr, BQ-2.

    Mr. Chair, the Bloc Québécois is quite concerned about what happened after the Immigration and Refugee Protection Act was passed some time ago, especially with regard to the Refugee Appeal Division. We are concerned about the coming into force of bills. We want to be sure that parliamentarians are able to do their work, that the spirit of compromise at the committee is respected and the will of Parliament is fully respected as well.

    The intent of this amendment is simply to make sure that the entire bill will come into force at the same time. We also want to avoid a situation where a government could decide to exclude one of the provisions that the committee has passed just because it does not suit its purpose any more. I think that we have to make sure that the spirit of the bill is observed in its entirety. I did not want to specify the date on which the bill would come into force, but, if this amendment is passed, the government is going to have to put all of it into effect.

    Can I comment?

    Sure.

    We actually understand Mr. St-Cyr's reason for the amendment, I think based on a private member's bill that he put forward a little while ago, and this would see that this wouldn't happen with this bill. The government certainly supports all of the bill, and its intent to implement it at the same time is well thought out and we support it.

    (Amendment agreed to [See Minutes of Proceedings])

    (Clause 8 as amended agreed to)

     Shall clause 1 carry?

    Some hon. members: No.

    The Chair: Just a moment.

    Monsieur St-Cyr.

    Right, Mr. Chair.

    I mentioned this briefly during the consultations, and even in the House. So it will not come as a surprise.

    As I understand it, our procedures do not allow us to amend the short title, but they do allow us to defeat it. So I am suggesting that this committee defeat it, for several reasons.

    First, I think that we have to make it clear to the government that it must stop using the short titles of bills as vehicles for its political marketing. Nowhere else in the bill is any kind of opinion expressed. The focus is on the legal aspects of the matter. The title is different; it talks about cracking down on crooked consultants. That is clearly expressing an opinion. Members may vote for the bill and agree on the principle, but that kind of language should not pass into law. All the more so in this case, because it could get ridiculous. Imagine a consultant telling his clients that he is accredited under the “crooked consultants act“. That is quite pathetic and, more importantly, it does not provide much credibility. I feel we must make sure to get rid of all wording like that.

    For all those reasons, I recommend that members of the committee vote against the short title.

     Mr. Trudeau.

    Yes, I agree entirely with Monsieur St-Cyr. I would add that a number of witnesses brought forward this particular issue and were, quite frankly, insulted to be regulated by a bill that talked about “crooked consultants” and not about honourable consultants or legitimate consultants, not to mention the argument that this bill is not about cracking down on crooked or ghost consultants; it's about setting up a regulator for good consultants. In terms of the ghost consultants, one of the criticisms of this whole issue is that they are not necessarily going to be gone after by the eventual regulator but by the Canadian border services and the Mounties. So it's a title that is both unfortunate and not entirely applicable.

    Mr. Dykstra.

    I would simply say it got us this far, and everyone understands exactly what this bill is about.

    Anyway, I would just like to get some clarification from the clerk--I'm not sure which clerk--on what happens when there's no agreement on a title.

    You go by the long title.

    The long title being...?

    An act to amend the Immigration and Refugee Protection Act.

    In answer to your question, that would be the title of the bill.

    Well, you know, it's disappointing. We've gotten this far.

    Some hon. members: Oh, oh!

    Try to say it with a straight face, Rick.

    All right. I won't make a big deal out of this. You guys think you're being funny, but I don't know.

    Why don't we do this? Let's have a recorded vote, and that's all I'll ask for. We'll live with whatever the results of it are.

    Did you want to say something, Ms. Chow?

    Yes.

    It does actually tar consultants. It's immigration consultants we're talking about. “Cracking Down on Crooked Consultants”...I can see it as a title on a press release.

    I think it's called an alliteration.

    Yes, I know it's quite nicely done.

    But I've heard enough comments out in the field that people are insulted, saying, “We're not crooks. We're immigration consultants. We've been well trained.” So I think it's better that we don't have that kind of title. People can get offended.

    Mr. Oliphant.

    I would just add that I think members of professions across the country who are regulated by provincial bodies, such as lawyers and physicians and nurses, have no acts that are entitled the law to regulate crooked lawyers or crooked nurses or crooked physicians or crooked pharmacists. So I think we should extend—

    Crooked politicians.

    —that same courtesy to immigration consultants who are trying their best.

     Does anyone else have anything to say?

    We have a request for a recorded vote, Ms. Clerk.

    (Clause 1 negatived: nays 6; yeas 5)

    The Chair: Shall the title carry?

    It's the long title.

    Yes, it is.

    Some hon. members: Agreed.

    The Chair: Shall the bill as amended carry?

    Some hon. members: Agreed.

    Some hon. members: On division.

    The Chair: Shall I report the bill to the House?

    Some hon. members: Agreed.

    The Chair: I understand we have to have a reprint of the bill. Shall the committee order a reprint of the bill?

    Some hon. members: Agreed.

    The Chair: That appears to end Bill C-35.

    It's now a quarter after. I'm going to suggest that the subcommittee meet on Wednesday at 3:30 and that this committee not meet again formally until a week from today.

    The committee is adjourned.