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.

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What Canadians are beginning to realize is that the budget omnibus bill, or Bill C-38, is an outrage.  There is much in the budget that was never hinted at, but there are also claims of what is in the bill that simply are not there.

Aspects never even hinted at in the budget itself include removing over-sight from the Canadian Security Intelligence Service and changing entitlement to Employment Insurance (this is still vague but appears to allow refusing EI to anyone if there is any job available, even not in their field).

Nearly half of the budget implementation bill is directed at re-writing Canada’s foundational environmental laws.  The budget never mentioned that the Fisheries Act was to be re-written, gutting habitat protection and restricting federal action in many instances to commercial, recreational and Aboriginal fisheries.  Rumours abounded due to a leaked memo to retired Fisheries scientist Otto Langer, but there was nothing in the budget about it at all.  But C-38 devotes a lot of space to the overhaul of protection of fish habitat.  If a human isn’t catching a fish, there is no protection for its habitat.  There was nothing in the budget about changes to the Species at Risk Act, putting the National Energy Board (NEB) in charge of permitting destruction of endangered species and their habitat found on the proposed route of a pipeline; nor for the supplanting of the NEB as arbiter of pipelines under the Navigable Waters Protection Act (NWPA). The NWPA is amended such that pipelines are no longer considered an obstruction to navigation – even if they are.

Although it was abundantly clear that a large focus was to be “streamlining” the environmental assessment process, the advanced hype focused on time limits for hearings.  It was nowhere mentioned that the Canadian Environmental Assessment Act was to be repealed.  C-38 wipes out the law and introduces an entirely new approach to environmental assessment.   

With so many new laws and repeal of old laws and complex text, the Conservative ministers speaking in the House in support of C-38 frequently claim the Act will include measures that are simply not there at all, or mis-state how the new laws will operate. 

I have heard members and Cabinet ministers claim the Act adds to environmental protection through increased tanker safety – but that is not in Bill C-38.  I have also heard members and ministers claim that the substitution of a federal environmental review is only allowed if the province has an “equivalent process” or as Parliamentary Secretary Michelle Rempel would have it, only if the provincial review is, “As good or better,”   Whenever opposition members ask about the appalling nature of the omnibus bill, the Conservative talking points include a gratuitous insult, “Perhaps if the Member opposite would actually read the bill…”

I would find it refreshing if any of the Conservatives speaking for the bill had read it.  I went over to one Conservative MP to inquire where he found the equivalency provisions and he pointed to the bill’s summary —  not a legislatively operative section.  True, the summary section claims the processes must be equivalent, but the bill itself falls short of that or any other objective criteria.   The provisions allowing for a provincial government to sign an agreement to substitute the federal environmental review with a provincial review are a strange combination of discretionary and mandatory language. 

Discretionary: “If the Minister is of the opinion that a process for assessing the environmental effects of designated projects that is followed by the government of a province…that has the powers, duties or functions in relation to an assessment of the environmental effects of a designated process would be an appropriate substitute (mandatory) the Minister must, on request of the province approve the substitution.” (Section 32, on page 51 of C-38.)

What would make the minister think it was “appropriate”?  “Appropriate” is not defined.  Maybe Environment Canada is short of cash?  Maybe the province is looking for a major development and wants it rubber-stamped quickly?  There is nothing to rule out an exercise of discretion without any ability to justify it as “equivalent.”  Once the Minister has reached that conclusion and a province requests a substitution, there is a mandatory duty to pass over the federal role to the province.

I am unsure if I have found everything alarming in C-38.  I cannot, for example, figure out why one section of the Fisheries Act is placed more than a hundred pages removed from the rest of the Fisheries Act changes, and I also cannot figure out what the stranded “Fish Allocation for financing purposes” (page 289, section 411 of Fisheries Act) amendments are supposed to do.  It looks like a scheme for selling fish or equipment for financing government activities. But that is pretty bizarre.

I am sure that putting all this in a fast-track budget bill, with time allocation on debate and heading to the Finance Committee, is a direct assault on the principles of Parliamentary Democracy.

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