“This legal challenge argues that the Conservatives’ June, 2012, severe cuts to refugee health care, made without notice or consultation, are inconsistent with the Canadian Charter of Rights and Freedomsand Canada’s international obligations under the UN Refugee Convention,” said May.  “We agree that, because of the documented hardships the cuts have already caused, they are also a breach of Canadian tradition and values.”

The Interim Federal Health Program (IFHP), established in 1957 and run by Citizenship and Immigration Canada, covered basic health care for refugee claimants and refused claimants until they became eligible for provincial health care or were removed from the country.  With an Order-in-Council, Immigration Minister Jason Kenney has replaced it with a complex and confusing program denying basic and sometimes-life-saving medical care to thousands of vulnerable people.

“There are now refugee claimants who can’t be treated unless their condition poses a public health or security concern,” said Donald Galloway, Citizenship and Immigration Critic for the Green Party.  “Yet some of these claimants cannot be removed from Canada, due to a government-issued moratorium on removals to particularly dangerous countries like Afghanistan or Iraq.”

The Green Party believes this policy is not only cruel, but will cost Canada’s Medicare system more money when our already-stressed emergency rooms have to take care of people whose illnesses have been left undiagnosed and untreated for too long.

“The government is withholding diabetes medication and care for pregnant women yet claims that it is only trying to ensure that foreign nationals are not provided with medical care that Canadians have to pay for,” added Galloway.  “It is quite appropriate that Minister Kenney’s Order-in-Council be challenged before the Courts.”

The CDRC and CARL distributed a list – compiled by Canadian doctors – of refugee claimants or refused claimants who were denied medical care or medication.  Most patients are not identified to protect their privacy.

Backgrounder:  http://elizabethmaymp.cawp-content/uploads/ifhp-backgrounder-legal-summary.pdf

The post Federal Court Challenge on Constitutionality of Refugee Health Cuts Supported appeared first on Elizabeth May.

On November 5^th, the committee heard testimony from immigration lawyers Barbara Jackman, Robin Seligman, and David Mantas, who argued that Bill C-43’s removal of appeal mechanisms for permanent residents, especially on the grounds of humanitarian compassion, eradicated the only venue in which these individuals had in shedding light on the context of their criminality, and the only forum they had in discussing the effects deportation could have on their well-being. Testimony was also heard from Lorne Waldman and Angus Grant of the Canadian Association of Refugee Lawyers, who argued that other legislative innovations could have done a better job in removing foreign criminals from Canada than Bill C-43. A point of contention for both individuals was the issue of ministerial waivers, and the effects that CSIS policies of not recording deportation interviews could have on the ability of lawyers to mediate factual disputes between clients and officers. Additional testimony was also heard from Martin Collacott of the Centre for Immigration Policy Reform, who suggested that while Bill C-43 removes appeal mechanisms for permanent residents sentenced to 6 months or more in jail, the bill does not prevent these individuals from asking judges to take their citizenship status into consideration during sentencing.

On November 7^th, the committee heard testimony from representatives of the Canadian Bar Association, who argued that Bill C-43 was a piece of legislation that had not gone through the public consultation process required  in designing laws sufficient in dealing with the problems of the immigration system. As a result, the bill – especially the provisions which grant ministerial waivers, removes appeal mechanisms, and changes the misrepresentation bar from two to five years – represents a patchwork of poorly designed policies that are unaccountable, unregulated and un-Canadian. Testimony was also heard from immigration lawyer Reynaldo Reis Visarra Jr. Pagtakhan, who argued that while Bill C-43’s denial of appeal for permanent residents is a provision that should be supported, its 5-year ban on misrepresentation, and its granting of ministerial waivers are provisions needing amendment or removal. Additional Testimony was also heard from Rivka Augenfeld and Richard Goldman of Table de concertation des organismes au service des personnes réfugiées et immigrantes, who suggested that Bill C-43 demonstrates a pattern of “exclusionary” activities by the government, who no longer cares about the activities of the immigrant prior to migration, but is now more concerned with who these individuals associate with. The organization believes that this change in priority has expanded the scope of criminality in Canada and has unfairly labelled individuals as inadmissible.

The post Standing Committee on Citizenship and Immigration appeared first on Elizabeth May.

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.

[08iNJ2SySsc]

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.

The post Faster Removal of Foreign Criminals Act (Bill C-43) appeared first on Elizabeth May.

“The Harper Conservatives are framing this issue and legislation in terms of ‘getting rid of criminals faster,’ said May, “but it is really designed to give the Minister of Immigration more ‘discretionary’ power and completely remove many individuals’ right to due process.”

Bill C-43 amends the Immigration and Refugee Protection Act to give the minister immense power to decide whether an individual is ineligible to become a temporary resident for three years, based on absurdly vague and broad “public policy considerations.”

Where the Act now deems an applicant inadmissible if found to have engaged in acts of subversion against democratic governments, this has been expanded to the again vague and undefined “espionage that is against Canada or contrary to Canada’s interests.”

The new family provisions allow the minister to deem someone inadmissible on the basis of family links or ties – again undefined – very probably leading to guilt by association.

Previously access to an independent tribunal (the Immigration Appeal Division) was barred when an individual had been sentenced to more than two years. This will be lowered to 6 months. Shoplifters beware. Canada needs independent, non-political decision-makers to review whether certain circumstances justify the removal of those guilty of lesser offences. Some of them may have been raised and educated here.

“The government seems to be afraid of delegating the task of formulating just and appropriate solutions to objective, thoughtful, and, most important, independent decision-makers who can consider all the circumstances of a case. Instead it seems to be intent on introducing cookie-cutter justice where one size fits all. This will be a recipe for disaster for many individuals,” said Don Galloway, a founding member of the Canadian Association of Refugee Lawyers (CARL) and Green Party candidate in the upcoming Victoria by-election.

“Slowly, but surely, the Conservatives are moving Canada away from being a country based on the rule of law to one based on the rule of one minister. We are also replacing compassion with arbitrary and punitive treatment,” concluded May. “All Canadians should be worried about this.”

The post Bill C-43 = the Faster Removal of Civil Liberties Act appeared first on Elizabeth May.