Thank you very much, and thank you for having us.
I will speak for the first five minutes, and then Barb Jackman will speak for the second five minutes.
On Bill , the faster removal of foreign criminals act, let me start by saying that if this legislation was truly about removing foreign criminals, I would not be here today. The fact is that this legislation has very little to do with removing foreign criminals from Canada and has everything to do with taking away appeal rights and attacking permanent residents of Canada; yes, permanent residents of Canada, many who have lived here for a long time and have all of their family in Canada. These are not foreign criminals.
In addition, the criminality that this bill addresses can be relatively minor in nature to trigger the catastrophic result of permanently separating a permanent resident of Canada from their family in Canada, including being separated from their spouses and children indefinitely.
I will address the immigration appeal division aspect of it, i.e., taking away appeal rights from permanent residents of Canada. Barb Jackman will address restricting access to humanitarian and compassionate grounds, misrepresentation bars, and additional matters.
Bill takes away all appeal rights for permanent residents of Canada if convicted in Canada with quite a minor sentence, or even if that permanent resident is abroad and is convicted of, or has committed, an act outside Canada which, if done in Canada, would have a sentence of 10 years. This would include such offences as fraud, personation—that means using somebody else's identification—theft over, domestic matters. It does not matter if there's a conviction or what the actual sentence is abroad. A fine could trigger this section, and on its own, could make a permanent resident indeterminately separated from his family.
Let me use the example of someone who has come to Canada as a child and is now 50 years old. They are married, have children, grandchildren, and a home in Canada, and are working and supporting their family. They have never had any trouble with the law, but never applied for their Canadian citizenship. There are many people in Canada under those circumstances: Americans, Italians, Greeks, Portuguese. They just never became Canadians, although they came to Canada when they were small children.
On one occasion, this person makes a bad choice and gets into a fight, or drives dangerously, or commits theft under $5,000. If they get a sentence, even a conditional sentence of six months, no jail time is served, and they get a fine, or not even a fine, and they plead guilty—because it makes sense in terms of dealing with the criminal justice system and they would be advised to do so by most criminal lawyers. Approximately 80% of all criminal matters are pleaded to; otherwise, the system would grind to a halt. This has been given to me by the Criminal Lawyers' Association. This person would be deported from Canada without any right of appeal to the immigration appeal division, notwithstanding they have basically spent their entire life in Canada, and have no connections and sometimes don't even speak the language in their home country.
What the bill does is it takes away all appeal rights for this person. The immigration appeal division does not necessarily have to let the person stay in Canada, but at least it gives them a chance to consider all the circumstances of this person's case, such as how long they've been in Canada, the seriousness of the offence, if there's a pattern of criminality, family in Canada, what rehabilitation they've made. Then the immigration appeal division makes a fair and balanced decision.
Normally, in a case like the one I just described, the person would be allowed to stay in Canada and would be put on a stay of removal, basically probation for a certain period of time, usually three years to five years. If they break the law in any way, they would be deported automatically. I would hope and think that most Canadians would support this type of result.
I'm also going to provide for you samples of cases where people have obtained sentences of six months or more from the immigration appeal division. In many cases, the person has not been allowed to stay, and in the others the person has been allowed to stay. What I hope you will take the time to do is to read the types of cases and the types of people who are involved in these situations, who find themselves on the wrong side of the law. It may be a one-off situation of fraud and a situation where all of the person's family is in Canada. I don't think anybody would reasonably think that a person in those circumstances should be deported indeterminately and indefinitely from all their family in Canada.
I'll leave this with the clerk for you to look through.
I want to open by saying in 1933 the Supreme Court of Canada recognized the fundamental principle in the prerogative of mercy case. Deportation is not a punishment. You are not to use deportation as a punishment, but that's what this legislation seems to be doing. You have six months, no second chances; one shot and you're out.
The United States put in a law like this. We have dozens of people in Windsor who've been kicked out of their homes. They've lived all their lives in the United States. They have a felony conviction. They're in Canada making refugee claims so they can be close to their families. Do you want the ones in Canada going over to the U.S. doing the same thing?
These are people, some of whom have lived all their lives in Canada. All we are saying is to have discretion. Leave the discretion there. This brings me to my second point.
Clause 9 and clause 17 of this amending legislation take away humanitarian and compassionate discretion and the discretion to issue a temporary resident permit to people who have been found to be inadmissible on security grounds, organized criminality, or war crimes. What you don't understand, or what I think you need to understand, in terms of that legislation is that for persons for whom there are reasonable grounds to believe they were members of a terrorist organization, or at some point in their youth they may have been involved in street gangs or something like that, and they have grown up and left it behind them, it leaves them without any remedy whatsoever on humanitarian grounds.
That is not a piecemeal change to the legislation. That is a fundamental change to our immigration history. From the time we got legislation in 1910 there has always been a broad discretion on the part of the minister or a body like the immigration appeal division to allow people to remain in Canada on humanitarian and compassionate grounds in recognition of the fact that hard and fast rules don't fit with the fact that people are human beings.
This legislation will mean that for the first time ever there will be classes of people who don't get any kind of discretion, who don't have access to any kind of discretion, who won't have anybody looking at their case. That is so out of keeping with our humanitarian tradition in terms of the way our legislation has always been structured.
Another point I want to cover is the misrepresentation bar. I want to cover it in the same way as with the other bars. If a person misrepresents, they are barred for five years under this legislation. Right now it's two years. The problem with these provisions is that they're all very broadly interpreted.
I'll use an example of a member of a terrorist organization. Mrs. Joseph Pararajasingham's husband was a member of Parliament in Sri Lanka who was assassinated. He was in a democratic party, but that party negotiated to try to end the war for the LTTE, the Liberation Tigers of Tamil Eelam. They were negotiating on the part of the LTTE because it was a banned organization. She's a terrorist because she was her husband's secretary, and her husband, although elected to a democratic party of the House of Parliament in Sri Lanka, was for a party that helped try to negotiate an end to the war, so she's barred. This legislation means that this woman, who must be close to 80 now, whose only two kids are in Canada and are Canadians has been branded a terrorist. It means that she doesn't have any way around it in terms of humanitarian discretion. She can't go to the minister and request a permit to stay or say, “Please let me stay on humanitarian grounds.”
On the misrepresentation bar, we had a case in which the dad was being sponsored. In his past history, back in the 1960s, he put that he'd worked as a Hindu priest in training. He left out that he'd worked as a mechanic part-time throughout those four or five years that he was a priest in training, because his principal occupation was priest in training. He misrepresented. It was not relevant at all to his sponsorship as a parent. It didn't matter where he worked, but he was barred on the misrepresentation. His only son can't sponsor him for five years under this legislation. This is extremely harsh legislation.
The rule in Canada has always been that you allow someone to look at the circumstances or the facts of the case, and then they make a decision on whether or not the person should be exempted. If you want to keep criminals out—
As you can see from my notes, I want to talk only about one provision of the bill, clause 24.
The first point I would make is that the change proposed in clause 24 is anomalous in that it treats a foreign act where there is no conviction more seriously than a conviction in Canada. Moreover, the standard of proof is considerably less: reasonable grounds to believe or, in the case of a permanent resident, balance of probabilities instead of proof beyond a reasonable doubt.
The proposal made in the bill, which treats foreign acts on slender proof of criminality so much more seriously than Canadian convictions, rings a false note. One would have thought that Parliament would treat crimes in Canada at least as seriously as crimes abroad. With the proposed amendment, that is not the case.
The amendment would have the effect of keeping husbands and wives apart in cases where the marriage is genuine and there are children of the marriage, on the basis of evidence that the foreign spouse has committed an act which does not meet the standard of balance of probabilities, let alone proof beyond a reasonable doubt, or where there is a foreign conviction and the circumstances of the offence are such that no jail time was imposed. I ask, do we really want to do that?
A second serious concern the proposed amendment raises is the reduction from two years to six months for the appeal threshold. The bill assumes, as its title indicates, that the change would lead to faster removal of these people. That raises three questions: Would it be faster? Should these people be removed? Once removed, what does the taxpayer have to pay for their return?
The enactment of the bill would not remove humanitarian discussion from the system for those sentenced to six months or more. Rather, it would relocate it to officers reporting on admissibility and minister's delegates referring reports to the immigration division of the board.
This duty of officers to consider humanitarian discretion on reporting and referral is elaborated in the manual in detail. One part of it, for people who came to Canada before age 18 and have been here for 10 years and have no right of appeal, requires that the case go to headquarters. Okay, but once the report goes to headquarters, it can take quite some time to get out of headquarters. This bill of course increases that population.
Even for people not covered by this particular headquarters referral manual provision, processing the delays will become more substantial with the bill. Where there is an appeal to the appeal division of the board, the exercise of discretion to report and refer can be cursory. Where there's no appeal, the exercise of the discretion to report and refer will have to be considerably more careful and detailed. Moreover, the decisions to report, refer and remove are subject to judicial review in Federal Court. Where the judicial review succeeds but the person has been removed, the person is then brought back to Canada at government expense, and there's a statutory provision to that effect.
We have actually gone through this process before. It used to be that you had to have a public danger opinion before you lost the right of appeal, and that was changed to the two-year threshold. As a result of that change, there were some successful judicial reviews where people had been removed and then people were brought back at government expense.
These sorts of returns and payments by the government are only bound to increase with the decrease from two years to six months. Indeed, instead of calling this bill the faster removal of foreign criminals act, for some people we'd have to call it the faster removal and costly return of foreign criminals act.
There is an assumption built into the provision that Canada will be safer because of the change, because criminals will be removed more quickly. However, that assumption is misplaced in at least one respect, making Canada a more dangerous place.
The immigration appeal division of the board has a power the minister does not have to stay a removal order subject to terms and conditions. An immigration officer can either report or not report a person as inadmissible. The minister's delegate can either refer or not refer the person to an admissibility hearing. If there is no report or referral, the person is left to carry on as he or she was before without restraint or hindrance.
In contrast, the board, in addition to having the power to allow or dismiss an appeal, can stay an appeal. I quote in the written materials the sorts of conditions the board can impose. There's quite an extensive list of them.
They are useful conditions to impose on some people whose removal is too drastic a response to their behaviour, but simply letting them go on as they were before is too lax. The bill removes this option for a group of people who, because of the lesser nature of their offences and their strong ties to Canada, will in the exercise of the governmental discretion not to report or to refer, be allowed to stay. For this group, the protection from criminals that the legislation offers Canada is weakened.
Permanent resident criminals never exist in isolation. When they succeed in their appeals, the reason is mostly not just them. The reason is others: their spouses, their children, their parents, their employers, their voluntary associations, their places of worship, their communities. The board allows the appeals because Canadians will suffer from the removals. The proposed change ignores this dimension. How are the concerns of Canadians who want their friend, relative, employee, or co-worker to stay to be brought to bear? Not easily.
The appeal process exists for a reason. It may take longer because there are competing considerations that have to be weighed carefully, judiciously. At some point, haste makes waste. The stronger the reasons a person should stay and the weaker the reasons the person should be removed, the more is lost with the loss of the appeal process.
The proposal assumes that those appealing are delaying the removal through the appeal, and that abolition of the appeal would speed up their removal. However, there are many people with sentences of six months or more who now win their appeals. While they could still stay if there were a decision not to report or refer, that is, I acknowledge, less likely than the winning of an appeal. People who should not be removed will be removed regardless, because of the change in the law.
Once the board has the jurisdiction to hear an appeal, it can allow the appeal on humanitarian and compassionate grounds, taking into account the best interests of a child directly affected by the decision. There are a number of cases decided by the appeal division of the board where the person appealing was sentenced to six months or more, but the appeal was nonetheless allowed because of the best interests of a child who would otherwise be separated from a parent. In my brief, I quote one such case for you. The removal of appeals in cases like these will have an adverse impact on Canadian children, something that should give us pause.
In sum, my view is that this particular provision should not be there. It treats foreign offences more seriously than Canadian offences. It imposes hardship and cost on Canadians. It works against the best interests of children. It will not make Canada safer. It cuts down on the options available for dealing with offenders. The delays saved in the appeals will be lost by delays elsewhere in the system. It will lead to poorer quality decisions. In my view, the provision should be dropped.
Thank you very much.
The people I represent are the people being deported. Of course there's a concern about the victims.
The thing is, you're talking about a broad class of people. If someone comes in as an older teenager or an adult and commits crimes, I don't have a problem with deporting those people if they've committed serious crimes. I do have a problem if they came in at six months or two years of age, and they're being deported as an adult. They have spent their life in Canada. Their family is here. Everybody is here. They don't even know their home country. Those people didn't sign a contract when they came in. Their parents didn't get citizenship for them. There's no proactive stuff in any of the schools to teach them that they need to have citizenship.
The other thing that you should know, and which you probably don't know, is that the European Court of Human Rights said in Europe that they couldn't deport people who came to Europe as young children even if they were criminals in their adult life. As a result, states like France have laws where, if you came in under, I think, 10 or 15 years of age and you've lived in France for 10 years, you can't be deported because you're really a French person even if you're not actually a citizen. This law doesn't recognize that.
The other biggest kinds of cases that we see quite often involve people who have mental illnesses. People who develop these illnesses when they're in their late teens are being deported. They have no support outside Canada except for their family in Canada. You don't send somebody who is mentally ill off to a country on their own.
There are lots of reasons that some people should be allowed to stay.
In the odd case, I can understand that, but broadly, most people do recognize that they should take out citizenship. I know that this government and others, and other agencies, do try to educate people on that as often as we can.
Ms. Barbara Jackman: But what do you do with those people—
Mr. Ted Opitz: I actually have limited time, so excuse me; I want to move on to some other questions.
We often hear from the opposition that oftentimes somebody who's growing, for example, six marijuana plants will be deported without an appeal for their crime.
Well, first, they can always appeal that, as you know. Second, we had a witness recently who said, “Do you know how much marijuana comes from six plants?”
Do you know, by any chance?
I want to thank our three presenters for putting a very human face on this piece of legislation, and for painting a picture of the impact of the human element for Canadians.
My colleagues across the table and I disagree on many things, but there are some things we do agree on. We all want to make sure that non-citizens who commit serious and often violent crimes are removed from Canada as quickly as possible. I don't think we have any disagreement on that.
That being said, New Democrats are very concerned that this bill concentrates even more arbitrary power into the hands of the minister. Even more so, we worry this legislation doesn't get to the heart of the problem of violent offenders who are able to remain in Canada for years, despite deportation orders.
For example, we've heard over and over again from witnesses, as well as Conservative members, about the case of Clinton Gayle, who brutally murdered Constable Todd Baylis of the Toronto Police Service. We now know that serious administrative errors led to the delay in removing this serious criminal. In fact, an appeal of his deportation order failed, but he was not removed because the immigration department lost his files. The immigration department even settled a multi-million dollar lawsuit with the Toronto Police Service because of the errors it made.
Let me be clear. It was not because the legislative tools weren't available to deport Mr. Gayle, but because the system failed. We can't keep using that case as an excuse to bring these overwhelming powers into the hands of the state.
Don't just take my word for it. During a federal inquiry into the Clinton Gayle case, an associate deputy minister was quoted as saying, “Quite simply, the system failed.” He then explained that the department's priority at the time was to target unsuccessful refugee claimants who were on the run rather than criminals, because that way the deportation numbers were higher. It's games.
The question is fairly straightforward. Can the three of you talk about how the current system could be improved without eliminating the right to due process that is being proposed in this bill?
I agree. The system would work. In a lot of the situations where there was delay.... I'd like to clarify that delay by having a right of appeal is not a delay. People are entitled to due process. That's it; they only have one right of appeal to the immigration appeal division, and they're quite speedy on permanent residents with criminality.
If the board has the proper number of board members, they're heard quite quickly and expeditiously, and then the person is out. They go from jail to the board within several months, and that's it. Really, the system works. It's very unfortunate there is the odd one-off case, and there are not that many of them, that make the media. You shouldn't paint everybody with the same brush because, again, everybody has a story.
You're all members of Parliament and when you meet with your constituents, every one of you is going to have immigration concerns. A constituent may come to you and say, “I can't sponsor my spouse because when they were 19 they used false identification to get into a bar when the drinking age in the United States was 20.” Maybe a constituent's son is being deported. He never had a problem before but had trouble in school, or whatever, and hung out with the wrong kids temporarily and was drinking and driving and had a problem, or committed a theft. I'm not saying somebody wasn't victimized, but you have to look at the circumstances. Who was impacted?
I have another example. I can tell you about one that's going on right now.
A Canadian citizen sponsored her husband from Bangladesh. They went to the interview in Singapore, and the officer asked the husband, “How did your wife meet your sister?” His sister was in Canada. He said, “I think they worked at a place called the Bay. They met when they were working.” The officer called in the Canadian wife who happened to be there and said, “Have you ever worked?” She said, “No.” He said, “You're refused for misrepresentation.” They asked why. He said, “Because you didn't say you worked, or you didn't tell me you worked.” She said, “I did work when I was in university. I worked at the Bay part-time, but I didn't think I had to put that down.”
The Canadian citizen made the error, and they're barring her husband for two years. She's living in Bangladesh now, waiting for him to come over, because she didn't know to mention that she worked when she was a teenager.
These examples are not made up. They are not far-fetched. This is what's happening. Officers are going after everybody for any minor mistake. Now that bar would go from two years to five years. It has to be intentional. It has to be significant. The two years should be left alone. It's a very serious consequence.
Thank you as well to our guests today.
I want to touch base on the six months versus the two years less a day. You do recognize that throughout IRPA, some serious criminality is defined already as six months, and we're making changes to the one section with regard to the IAD. I've heard you mention many times that you think it's better to have the two-year requirement as opposed to six months.
I'm going to give you a couple of examples.
Jackie Tran is the first one I'm going to speak of. A permanent resident, in his late teens he was involved in crime in Calgary. His first conviction was at 19, for cocaine trafficking, in 2001. CBSA tried to deport him for six years. Despite having a long criminal record as a gangster and a major drug trafficker, he never received a single sentence of more than two years less a day. Therein lies the problem.
I have to ask you whether you think Jackie Tran was a serious criminal. That's the first question.
That's fine. I'll give another example.
Another person lost control of a vehicle and killed a pedestrian while street racing. I'm not going to mention the name, because you probably won't know this person either. He was given a conditional sentence of two years less a day and ordered deported from Canada in April 2003, but was not deported until April 2009. It took seven years to deport him due to multiple levels of immigration appeals.
This is the point we're trying to address. These people do not belong in Canada. They have committed serious crimes.
I listened intently to your speech. I have to say that I am actually very alarmed that you believe fraud, impersonation, and theft under $5,000 are a “minor sentence”, as you put it.
The reason I say this is that I actually have another example. Joselito Arganda came to Canada from the Philippines in 1995. I bring this to your attention because you mentioned specifically fraud and theft. This person was sentenced to two years in prison in 2007 for a wide variety of crimes, among them forgery, credit card fraud, possession of counterfeit money, and possession of goods obtained by crime. He reoffended after leaving prison, and was sentenced again, in 2009, for possession of property obtained by crime and for failing to comply with court orders. The following year, he was sentenced for possession of a weapon.
I'm alarmed that you think fraud and theft under $5,000 would be a minor offence.
Then, in the same conversation this first hour, you've indicated that you're very concerned that some of these people who may be deported may be the sole supporter of their family. I'm thinking of this particular person. If he was the sole supporter of his family, then it was through fraud, theft, impersonation, forgery, and so on.
I just have to put that on the table, because I'm very alarmed.
In the opening statement, you talked about Bill , and the major problem you have is that we're taking away the appeal rights of permanent residents. I just have to ask this question: Do you think it's too much to ask permanent residents to not commit serious crimes here in Canada?
Distinguished members of the committee, it's nice to be back here, and it's even nicer to be here in person. I testified last month via video and it's much nicer to be here in person.
Mr. Waldman and I are both going to speak to Bill . I will begin by expanding on the comments I made last time around, on security provisions, although this time with particular reference to Bill C-43.
I have no doubt that the proponents of this bill believe, on some level, that the changes that it makes will increase Canadian security. I'm going to talk about security, with reference to sections 34, 35, and 37, although I'm going to focus on clause 34. While I have no doubt that is the case, the position I would like to put to you today, which is also the position of the Canadian Association of Refugee Lawyers, is that this will categorically not be the case, and I'll explain why.
Bill makes two principal changes to the security inadmissibility regime and to the regime for determining inadmissibility under section 35 and section 37. First, it eliminates the ministerial waiver provision, such as it was, and replaces it with a new provision that will be found at proposed section 42.1 of the IRPA.
The second thing it does, which is something that Ms. Jackman talked about, is that it categorically and with no exception eliminates the possibility for obtaining a humanitarian and compassionate review of an inadmissibility finding under these provisions.
I'll speak about both of these changes, but in turn I want to reiterate something I said to you last month, and that is there is no doubt it's unambiguous and categorical that section 34 of the IRPA captures people who we would all agree are innocent of any moral or legal wrongdoing. This is not, as I said, a controversial point. It is something the Supreme Court of Canada has recognized in Suresh, in talking about the waiver provision.
Frankly, as refugee lawyers, we have all been in hearing rooms where the issue of Canadian security has not arisen because it is a given that Canadian security per se is not of concern to these proceedings. The problem is that people get caught under other areas of these provisions that don't actually touch on the specific issue of Canadian security.
I don't think we should have a conversation today about the fact that this is solely about Canadian security per se, because it's about much more than that, and people who do not actually pose any threat to Canadian security get caught under these provisions.
The second preparatory remark I should make is that as we all know, the parameters for finding someone inadmissible under sections 34, 35 and 37 are extremely broad. Whereas in criminal law there is the requirement that to find someone guilty we have to establish that they are guilty beyond a reasonable doubt, in immigration law we don't even have to find that they have done an act on a balance of probabilities, in other words, a 50% plus 1% chance that the person committed an act that is proscribed by the IRPA. All we have to show is that there are reasonable grounds to believe that an individual committed an act or was a member of a group that committed an act that is proscribed by the bill.
We can believe, for example, that someone probably didn't do an act, that there is a greater than 50% chance that someone didn't do an act, but because all we have to have are reasonable grounds to believe that someone did it, i.e., that there is less than a 50% chance, then that person can be found inadmissible.
We know that wrongful convictions happen in criminal law with criteria of proof beyond a reasonable doubt. Think about how many people, then, could potentially be wrongfully found to be inadmissible when the standard of proof is so much lower.
With regard to the changes that are being made, first of all, the shift of the ministerial waiver provision that used to be at subsection 34(2) and will now be at proposed section 42, is essentially unchanged except for one bizarre provision that it's your task to consider and try to make sense of. This is proposed subsection 42.1(3) of the new IRPA, and it is under clause 18 of the bill.
The minister, in considering a ministerial waiver of inadmissibility will now have to make sense of the following provision:
(3) In determining whether to make a declaration, the Minister may only take into account national security and public safety considerations, but, in his or her analysis, is not limited to considering the danger that the foreign national presents to the public or the security of Canada.
There are four things I want to say briefly about this provision. First, it doesn't make any sense, and I think you really need to grapple with this, because it's an important provision. It says that the minister must only take into account public security, but may look to things beyond public security. On its face, I think this is something that is going to make the judiciary apoplectic about what in the world this means. It's extremely poor legislative drafting, and it's going to cause a whole world of problems for anybody who is tasked with interpreting it.
I think I know what they were getting at in drafting the bill this way, and that is that the minister wants to have his cake and eat it too. He wants to say, “You can't force me to look at anything but security, but I don't want to be forced to look only at security because I recognize that many of these people are not actually security threats. I want to look at anything else I want to look at as well, to render my decision. I don't want to be bound by security, but I don't want you to be able to force me to look at things beyond security.” In an Orwellian way, this is the only way I can make sense of this provision.
The other thing that is remarkable about this provision is that it is being made and put forward to you at the exact time that the meaning of subsection 34(2) is under review by the Supreme Court of Canada. In the case of Agraira, which was argued just a couple of weeks ago, these exact considerations, the lawfulness of a ministerial waiver and the role that a waiver has to play within the larger inadmissibility regime, are before the court. The lawfulness of it is before the court. I would submit that it is an act of legislative bullying, almost, to suggest to the Supreme Court of Canada to legislate on an issue the lawfulness of which has not even been established yet.
That's all I'll say about the waiver provision.
I'm going to move on, very briefly, to the elimination of humanitarian and compassionate relief.
Given that I have three minutes, I will make two brief points.
First, I want to take up the discussion from last time. I just want to make it clear that if the goal is to speedily remove foreigners from Canada, I don't think the provision in the subsection 64(2) amendment will be effective. It will create a whole series of other problems, other obstacles, and other challenges.
There are other legislative innovations Parliament could have chosen that would have been far more effective in achieving the objective. The real question is, why has it taken so long? In the examples you gave, if we were to analyze each one of them, we could easily explain to you why it takes so long. There are different reasons and different explanations. Of course historical examples aren't always helpful. Things have changed and policies have changed, especially in immigration over the course of the last few years. What happened 10 years ago is not any way indicative of what's happening today. The reality is different.
I do want to make a point, because I don't think many other witnesses will speak about it. I'd like to speak about the provision that allows for CSIS officers to conduct interviews. I make this point because CSIS officers now conduct interviews all the time, and they do it without having the legal authority. I don't think it's a bad idea that if CSIS officers are going to conduct interviews, they be given the authority to do so. My concern, however, is that when you embark upon this road, you have to realize that it's unprecedented to give CSIS officers the power to compel people to answer questions, because they've never had that power, and it's inconsistent with their role, some would say, as intelligence officers.
The other important fact is that if they are going to have this power, and given that applicants will be under a duty to answer questions truthfully, and if they don't answer questions truthfully they can be subject to prosecution under the act, it's vitally important, given all of the different disputes we have had over time as to what was said and what wasn't said in an interview, that there be a directive in the legislation, a requirement that the interviews be recorded.
There have been, in the past, many different situations. I've had clients and other counsel have had clients where there have been serious factual disputes about what was said and what wasn't said. If there's going to be a duty to answer questions truthfully and a person can be subject to prosecution for not answering questions truthfully, then there has to be a record kept of the interviews.
Given that I had three minutes, that's about all I can say.
Thank you, Chair. I'm going to comment on two aspects of the bill that have attracted a lot of attention.
One is the provision that gives the minister the authority to use negative discretion on who may enter the country, and the other is the accelerated removal of individuals convicted of serious crimes.
With respect to the first, the arguments have been that this gives the minister too much power. Someone mentioned in an earlier session that all the opposition is in favour of positive discretion, but they don't like giving the minister the same authority in negative discretion, and yet this is the case with other democratic countries such as Australia, the U.S.A., and so on.
I don't quite understand where the minister gets too much authority because he's already responsible for all the decisions made in his department to begin with. I think the concern is that this will politicize the situation. Policy is already a consideration in all the decisions in the United States and Australia. They specifically mention foreign policy considerations. I don't think that's the concern of the opposition. It's that there will be partisan politicization in Canada. That's always a risk in decisions, but the minister is accountable to Parliament and has to answer for decisions, and he was challenged in the case of George Galloway coming in, for instance. I think there's already provision that he should be able to make those decisions, and if people don't like it, they can challenge it. I would say that any minister, whether from the current governing party or one of the other parties in the future, should have the same power.
Every country in the world refuses entry to all sorts of people all the time. That's their right as a sovereign nation. Therefore, I can't get too upset or too concerned about the amount of authority being given to the minister.
I'll move on quickly to one of the more contentious parts of the bill. It has to do with the accelerated removal of non-Canadians. One of the reasons it's so difficult to remove some of them, and I'll cite a few cases, is that many of them claim refugee status if they're ordered deported, and our refugee system is still in a very dysfunctional state.
Some of the more egregious examples have already been given in previous sessions. Mahmoud Mohammad Issa Mohammad was a convicted terrorist who entered Canada under a false name. His real identity was discovered, and he was ordered deported in December 1989. He claimed refugee status and that gave him access to all sorts of appeals and reviews. He's still here almost 24 years after being ordered out. The last objection I can remember to his being ordered removed was that if he were sent back to his native Lebanon, he'd not receive the same standard of health care he gets in Canada, to which the government replied that there's good health care available in Lebanon but he'd have to pay for it. I believe he's a client of Ms. Jackman's, so I can well understand why she would be sympathetic to lots of humanitarian and compassionate scope in the appeals. So far, his appeals and reviews are estimated to have cost Canadian taxpayers around $3 million.
You're probably all aware of the case of Leon Mugesera, who's a Rwandan deemed to have been a war criminal. We finally got him out of the country after 10 years. A more recent one is Jean Léonard Teganya, also a Rwandan war criminal who was finally deported, I think after another 10 years, because of all the appeals that are currently possible under the system.
A more garden-variety case was that of Van Thanh Nguyen, who was ordered deported in 1995 for a series of crimes, including the 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 jewellery. He was ordered deported. He committed four more crimes. Now he's trying to stay in Canada on the basis that we gave him a kidney transplant, I guess it was, and the anti-rejection drugs are expensive and if he has to go back to Vietnam, he'll have to pay for all those drugs rather than have the Government of Ontario pay for part of them. I don't know if he has claimed refugee status yet, but that will certainly be a humanitarian and compassionate appeal, if he does have one.
I was going to speak at some length on the Charter of Rights and Freedoms, because that has been invoked several times. One of the reasons the refugee system is in such a mess is the bad wording of section 7, which says that everyone has the full right to Canadian justice, rather than specifying Canadians or Canadians and permanent residents.
A very senior official, Jack Manion, a former deputy minister of immigration, strongly advised the government not to put in everyone. The government told him at the time that there wasn't going to be a problem. Well, there was a problem.
There was an appeal in 1985, commonly called the Singh decision, whereby four refused refugee claimants said, “We're everyone”. Since that ruling by Justice Bertha Wilson, all refugee cases can be appealed, and the appellants get the full bells and whistles of Canadian law. That's partly why we have all these extensive appeals.
I'll wrap up with a couple of points.
One was the point made that there is no sufficient possibility of appeal now if people commit a crime for which they get six months—a serious criminal. I will make two comments. One is that while they would not be permitted to make an appeal to the IAD in this situation under the proposed legislation, they could certainly appeal to the criminal system. Of course, this will give a lot more work to criminal lawyers than to immigration lawyers, but clearly the criminal court takes into account more than just the straight crime. The very fact that sentences have been passed down for two years less one day so that they are not up for deportation shows that these things are considered. There is ample opportunity through the criminal system to make appeals of that sort.
The difference will be, and I think Mr. Matas pointed it out, that this can slow down the system just as much as an appeal to the IAD. The problem is that under the present system, if you appeal to the IAD and you are turned down, you can ask for leave to appeal to the Federal Court. That kind of situation, plus the H and C reviews, is why Mahmoud Mohammad Issa Mohammad is still here after almost 24 years. There are serious issues that have to be dealt with.
I have one final comment on the question of whether six months is too low a threshold. Various theoretical examples were cited as to when someone could be deportable because of what they considered a minor crime. I will cite to you a report from yesterday's Province, which is a Vancouver paper.
This was someone sentenced in the Supreme Court of British Columbia for speeding, driving recklessly and aggressively, and losing control of his vehicle. His car went airborne, came down and crashed, and killed another driver. He was charged with dangerous driving causing death. He had already had 17 infractions in some fairly serious cases. For this he got three months.
While it's all right to talk in theory about cases that might seem unfair, this is a concrete case. That's what he got: three months. I don't know whether he is a Canadian citizen; the issue of deportation didn't come up. There can be quite a gap between the examples of non-serious cases for which you can get six months and the reality of the situation, and that is spelled out by this particular case.
Chairman, I usually go over time, so I am going to behave myself today and stop now. I think I am still within my 10 minutes.
Thank you, Chair. Thank you, gentlemen, for joining us today.
It always seems so challenging to try to balance these things. We're looking at humanitarian and compassionate issues and we are looking at security.
Since you spoke last, Mr. Collacott, I want to put my question to you.
As I have been listening to the various accounts of different cases, the ones that alarm me the most are those that relate to a country I have visited, Rwanda; cases of people who are war criminals, and you mentioned two of them, who are able to apply for humanitarian and compassionate consideration and then delay indefinitely their deportation from Canada.
That practice alarms me, because it calls into question our whole humanitarian and compassionate approach. It mocks it and suggests that Canadians may lose faith in areas in which we ought rightly to be giving people humanitarian and compassionate consideration in the judicial system, the immigration system, and elsewhere.
Can you elaborate on this matter of allowing war criminals to use the humanitarian and compassionate approach? This will be dispensed with under Bill , and I would like you to comment on how that strikes you.
The government needs to address the lack of training, resources, and integration of information and monitoring technologies within the responsible public service agencies. Auditor General reports on Citizenship and Immigration, as well as on CBSA, over and over again have highlighted a lack of training, resources, and integration of information and monitoring technologies, which of course doesn't allow for the adequate enforcement of already existing legislation. Now we're also seeing funding cuts to the Canada Border Services Agency.
All of these problems put Canadians at risk. The government needs to address the lack of training, resources, and integration of information and monitoring technologies within the responsible public service agencies.
My question is for Mr. Waldman. What role has the government's inability to effectively track, detain, and remove serious non-citizen criminals through the appropriate federal agencies played in this issue?
It's interesting that you make that point, and I think it's an extremely valid one. We're talking about the speedy removal of foreign nationals, the faster removal of foreign criminals act. Everyone agrees that foreign criminals who have committed serious offences should, if they deserve it, be removed speedily.
The difficulty is that many of the delays we see in the process have nothing to do with what happens at the Immigration and Refugee Board but are delays built in to the other stages in the process. Sometimes a person is convicted and it will take months and months before a report is written under section 44 of IRPA, because there are not enough officers to write reports. Then, if the person is a permanent resident, he's usually called in for an interview, at which he is given the opportunity of making a submission, which is then reviewed by a senior immigration officer.
The witnesses who spoke previously, Mr. Matas, I think it was, talked about all of the delays that are occasioned by the procedures that precede the actual admissibility hearing. Then, sometimes there are delays in admissibility hearings due to the unavailability of minister's representatives.
If you're talking about speedy removal, you need to make sure there are sufficient resources throughout the process. What we see persistently is that many of the delays are part and parcel of an inadequately resourced Canada Border Services Agency.
Before we start talking about eliminating appeal rights as a means of moving people through the system more quickly, the biggest delay, which happens sometimes, is in scheduling appeals. Why do we have delays in scheduling appeals? There aren't enough members to sit on appeals. If we want to have people removed quickly, that could be done if we had sufficient people to hear the appeals.
Could I add one point on that?
We've been given a lot of historical examples in terms of how it took years for this, and years for that. My friend cited the case of Mr. Mohammad. Let's be totally clear. Undoubtedly the immigration system has been dysfunctional for a long time. There have been huge delays, and all of these delays are the result of inadequate resourcing and some silly policies.
But to be honest with you, if the system....
To give you another anecdotal example, we're talking about spending millions of dollars to create a new refugee system. I'm seeing people come into my office today who have made refugee claims, who have had their hearings and have been rejected and are being removed within a year under this system. Once you've staffed the system and you get it working properly, it functions.
The bottom line is, if we staff the system and get sufficient resources, we can allow for all of the necessary safeguards to allow for fair hearings and still have people removed speedily.
I want to pick up on Mr. Waldman and the member's question.
It's interesting. If you ask the minister, and he's had the press conference, as to the five reasons this bill is before us, he'll list off all those horrendous cases and say that's the reason for this legislation, that Canadians don't support these murderers. He'll come up with pedophiles and a whole litany of things as to why it is this legislation is absolutely critical. He'll label permanent residents as foreign criminals. Many take offence, including myself, to that fact in itself. The reality is that he is referring to a very small percentage of permanent residents and he's highlighting those in order to justify a flawed bill.
I want to go back to the example because I think it's worth looking at this. As members of Parliament we have constituents. I'll use the example of young adults who are graduating from high school. They decide to go down to the United States. Winnipeg is only an hour's drive from the United States. A 19-year-old person uses false documents because the drinking age there is 20 or 21. If that person is not a permanent resident of Canada—and we're not talking about a few; we're talking hundreds or thousands across Canada—that person could be in big trouble.
I'll refer to the example used. Using a false or fraudulent document is an offence under section 368 of the Criminal Code carrying a maximum potential penalty of 10 years. A 20-year-old permanent resident who is convicted of using fake identification to get into a bar while visiting the United States is inadmissible under IRPA for foreign conviction. It doesn't matter that the U.S. court punished him only with a $200 fine. IRPA section 36(1)(b) does not require any particular sentence, only a foreign conviction.
Imagine the profound impact this could have on a number of permanent residents. In the example I used, this could have been a student who came to Canada when they were two years old and went through the whole system in high school. The student's mom and dad, for whatever reason, didn't get their citizenship, and this individual now, without the right to appeal, could be deported back to a country that he or she would be nowhere near familiar with, and may not even speak the language.
This is the profound impact this bill, if it passes, will have in a very real and tangible way.
The minister can use the types of examples that he has chosen, but I would suggest that the types of examples I could come up with would be far greater in number. I'm wondering whether we are making a grave mistake.
There is a suggestion I would make at this stage, at the very least. Would you not agree that people who are brought to Canada as young children, whether they be 10 or 15, but let's define an age, should be exempt from this legislation, given that at an early age it's society, it's our community that in essence rears those children?
Thank you, Mr. Chair, and thank you to our witnesses for appearing before us today.
I found your testimony to be very interesting as I did the testimony of the previous witnesses, but I didn't have a chance to question them.
There seems to be one common theme coming out of the testimony and responses that we have heard from you and previous witnesses, which is that clearly, no one wants foreign criminals walking our streets. I think it was Ms. Seligman, a previous witness, who said that she's a mother too and she doesn't want a criminal in her neighbourhood. People don't want those folks in their area and around their children.
I was a little taken aback with my colleague, Ms. Sims, when she referred to using Clinton Gayle as an excuse. I believe the family of Todd Baylis would take some exception to that as well. Todd Baylis was a police officer, 24 years of age, who was gunned down in his prime by a serial criminal named Clinton Gayle, while he was trying to disrupt a crack cocaine drug deal. Gayle was still in Canada because he had appealed to the IAD. Let's focus a little on the victim's side of the equation. We're talking about a known criminal, not a two-year-old who's here at 30.
By the way, Mr. Lamoureux commented that the minister is labelling permanent residents as foreigners. Clearly, there is a difference between a permanent resident and a Canadian citizen. If you have lived here the better part of your life, and you're not a Canadian citizen, you're still a citizen of another nation. That makes you a foreigner by definition.
Let's just focus on criminals like Clinton Gayle. Do you agree with the ability of criminals like him to be able to appeal their deportation even though they have been convicted of serious crimes several times over?
I'll start with you, Mr. Collacott.