Faster Removal of Foreign Criminals Act (Bill C-43)

On Thursday, October 4th, 2012 in Speeches

Elizabeth May: Mr. Speaker, I am very pleased to have the opportunity today at second reading to speak to Bill C-43.

It is described as an act for the faster removal of foreign criminals. If we were debating the title of the act, I really do not think there would be anything to debate. I cannot imagine any Canadian who does not think that a foreigner who is a dangerous criminal should be removed from Canada.

As has happened lately with a number of pieces of legislation brought before the House since I have been a member, I have been surprised how far the titles have morphed from the kinds of titles of legislation I once studied at law school. It used to be that we would open a statute and we found that, not only was the book dusty, the title of the legislation was just a blanket description of what was at stake: an immigration and refugee statute or a law to deal with the Fisheries Act.

Now we have titles that seem to, and probably do, come out of focus group testing for legislative titles that would be zingers in future election campaigns. As someone who studied statutes, I find this a dismaying trend. I realized the other day while watching a U.S. program on HBO called The Newsroom that this was invented by the Republicans south of the border. I do not watch enough U.S. TV to have known that if I had not been watching The Newsroom.

Back to the topic, this piece of legislation, which would amend the Immigration and Refugee Protection Act, definitely has merit if what it is about is getting rid of dangerous foreign criminals who have no right to be in Canada.

I assert that what we have here is always going to be a question of balance. We do not want dangerous foreign criminals with no right to stay in Canada to be here, threatening Canadians who have every right to be here. However, we also recognize that under the Charter of Rights and Freedoms, permanent residents and citizens of Canada have charter rights. The question then is whether we have the right balance. Are we protecting permanent residents who are not a threat to our society or are we sweeping them up in the vast and sweeping discretion of the minister?

This could do serious injustice to people who are important parts of Canadian society, who contribute in positive ways and who we would not want to be caught up in a sweep that did not take account of individual rights, individual situations, humanity, compassion, holding families together and other aspects that have always been part of the consideration before deportation takes place.

When we ask if the balance is right in the legislation, I turn to some of the recent comments by members of the Canadian bar. Toronto lawyer Mendel Green is quoted in this story from the Toronto Sun as saying:

I am concerned about the monumental affect this will have on the immigrant community if it becomes law…. This will be a life sentence for many people.

Lawyer Joel Sandaluk, at the same press conference, representing the Ontario Criminal Lawyers’ Association, said:

This will destroy families who’ve been here for a long time…. It will create more criminals if parents or other family members are removed from Canada.

I have further quotes from other lawyers. Lawyer Guidy Mamann also said this about the potential residents who could be swept up and deported with no chance of appeal and without any exercise of individual discretion. He said:

These are young children brought to Canada at a young age as permanent residents, raised and schooled in Canada…[but] never took out citizenship…. It is unconscionable that a country like Canada, which has always allowed for second chances, to now embark on a new ‘one strike you’re out’ approach.

Last, I will cite lawyer Andras Schreck, vice-president of the Ontario Criminal Lawyers’ Association, who said that the bill is drafted in such a way that it could easily sweep up people guilty of minor offences and have them deported. He said:

We are not talking about serial killers, murderers or bank robbers.

Let us take a look at what kind of people could be swept up by the bill and what kinds of crimes people would have to commit for there to be no right of appeal and the person would just be sent out of the country. This can be described as crimes for which people are convicted for a sentence of six months or more.

The current law deals with crimes where sentences are two years or more. To bring it down to six months or more for a crime for which the ultimate sentence could be as much as ten years in jail would bring in a series of crimes that do not threaten the security or at least the safety of Canadians. In other words, it would take in a number of crimes that do not involve any threat of violence. If someone is found guilty of a crime and sent to jail for six months or more, nowhere does this new legislation require that the crime be a crime of violence or something that threatens the security of Canada.

The kinds of crimes listed that I found might fit this definition for which someone who is a permanent resident could get a six month sentence but a ten year maximum would include the deportation for possession of a stolen or forged credit card and the use of that credit card knowing it had been cancelled, the unauthorized use of a computer or forgery, and a host of other offences that carry ten year maximums. In that case, we are talking about no discretion, no appeal.

What could easily happen is that if any one member of a family, a parent or a younger member, children born in Canada, relatives participating in Canadian society or any one part of the fabric of a Canadian family, is found guilty of something that is not in any way a crime of violence but receives a sentence of up to six months with a maximum of ten years, that individual is gone. The individual would have no chance to plead his or her case.

I will quote one other lawyer on this matter who, I am proud to say, is the current nominated candidate for the Green Party in Victoria in a byelection. His name is Donald Galloway. He is a founder of the Canadian Association of Refugee Lawyers and is also a professor of refugee and immigration law at the University of Victoria. In looking at this, he suggested that there was an inherent legal balance built into section 34 of the current act so that the courts have accepted broadly defined prescribed grounds of inadmissibility that are found in section 34(1) based on the assumption that these same sweeping inadmissibilities are balanced by the provisions in section 34(2).

If Bill C-43 were enacted, it would fundamentally destabilize the legal balance by removing the layer of individualized, personalized, case-by-case review guided by, in some cases, humanitarian concerns and compassion that acted as a safeguard against the breadth of prescribed grounds for inadmissibility found in section 34(1). Beyond issues of compassion and fairness, this ill-conceived change would force the courts, as they have already indicated, into a position where they will need to intervene and fix the act to provide a reinterpretation to ensure that the act remains constitutional, otherwise it will violate the charter.

I will now turn my attention to another section of the act that I find particularly egregious and which does not deal with criminals and does not deal with people already in Canada.

If the minister, under the new clause 8, which would change section 22 of the current act, is dealing with a foreign national who has applied to become a temporary resident of Canada, the minister would have unfettered discretion to make a decision to refuse that person the right to be a permanent resident of Canada with no objective criteria that can be measured. This is very unusual. The clause states that section 22.1(1), which can be found under clause 8 in the proposed Bill C-43, allows the minister, “on the Minister’s own initiative, declare that a foreign national…may not become a temporary resident if the Minister is of the opinion that it is justified by public policy considerations”. This banishment can last for up to three years.

Going back to my time in law school doing legal drafting and statute interpretation, we cannot find anything that gives us more freewheeling power to make up our mind which ever way we want than the language “Minister is of the opinion”. No court will be able to step in and say that it does not like the way the minister has exercised his or her discretion. I am using his or her as this will apply for all time. I am not just thinking of the minister at the moment. This would be a permanent change to our legislation and a dangerous one. The legislation says “the Minister is of the opinion”, and then what? What is the minister of the opinion of? The Minister is of the opinion that it is justified by public policy considerations. We could not come up with something that gives more freewheeling discretion, not bound by anything in particular. What kind of public policy considerations? Maybe the public policy considerations could be that we have too many of a certain kind of person in a town. Who knows? It is without objective criteria.

I hope that when this legislation goes to committee and is studied in committee we can rebalance the balance that must be there.

I stand here as leader of the Green Party not in favour of keeping dangerous foreign criminals in Canada but in keeping the Charter of Rights and Freedoms in Canada.

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