Jason Kenney seeks to curtail discretion and (perceived) impediments to removing permanent residents convicted of criminal offences in Canada.
Bill C-43, laughably entitled "Removing Foreign Criminals Faster Act", proposes to eliminate access to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB) for permanent residents and even family members of those who have certain criminal offences in Canada or believed to have committed offences outside of Canada. Bill C-43 also provides the Minister with increased discretion to deny entry to individuals on “public grounds.” (Think George Galloway).
The majority of the proposed amendments are excessive, harmful, and unnecessary. Due process has never been a strong suit of this particular Minister. Arguably, the elements contained within this proposed legislation undermine the principles of fairness.
Protecting the Safety and Security of Canadians
Under the current inadmissibility regime, permanent residents convicted of an offence in Canada and sentenced to less than two years sentence may file an appeal to the IAD. However, under Bill C-43, only those sentenced to less than 6 months for a conviction in Canada would be able to file an appeal to the IAD. Also, those with a foreign conviction equivalent to an offence in Canada that carries with it a maximum sentence of at least 10 years in Canada could no longer appeal to the IAD.
Currently, foreign nationals who are inadmissible on serious grounds have access to humanitarian and compassionate (H & C) provisions to overcome any inadmissibility or other Immigration and Refugee Protection Act (IRPA) requirement. Bill C-43 will eliminate access to H & C provisions for foreign nations who are inadmissible on the most serious grounds of security, human or international rights violations, or organized criminality.
In addition, Bill C-43 will codify a recent Federal Court of Appeal (Agraira) decision restricting the Minister of Public Safety to consider only national security and public safety factors, and not factors such as H & C, when deciding whether to grant a request for relief from inadmissibility (on grounds of security, certain human or international rights violations, or organized criminality).
Under the current inadmissibility regime, there is no discretionary Ministerial authority to deny temporary resident status on the basis of public policy considerations. However, Bill C-43 would allow the Minister to Citizenship and Immigration to deny temporary resident status for up to three years on the basis of public policy considerations.
In regards to facilitating entry into Canada, the current regime allows entry of foreign nationals who are travelling without their family member who is inadmissible on any grounds. Under Bill C-43, foreign nationals would be inadmissible to visit Canada if the foreign national has a family member (accompanying or not) who is inadmissible on grounds of security, human or international rights violations, or organized criminality.
Finally, under the current regime, individuals receive a two-year inadmissibility period for misrepresentation. Bill C-43 proposes to extend the inadmissibility period to five years as well as a five-year ban on applying for permanent resident status.
Strengthening Program Integrity
Currently, there is limited authority to impose conditions on those involved in an immigration application; to verify compliance with conditions or set consequences for breaches of conditions. The new legislation would allow for such conditions to be imposed on employers or education institutions, etc and permit officers to verify compliance.
Also, under the current regime, in cases of individuals who have been reported or ordered removed from Canada on security grounds, or who are subject to a security certificate, the officer, Immigration Division, or the Federal Court has the complete discretion to impose conditions on the individual and discretion as to which conditions are to be imposed. The new legislation imposes mandatory minimum conditions. This aims to ensure consistent monitoring and control of such individuals.
Some foreign nationals have contested the legislative authority of the Canadian Border Services Agency (CBSA) to require applicants to attend interviews with the Canadian Security and Intelligence Service (CSIS). The new legislation will provide a clear statutory obligation to do so when requested by an officer.
Finally, under the new legislation, permanent residents would be able to renounce their status through an application process as opposed to an administrative process.
Facilitating Entry to Canada
Under the current regime, foreign nationals are inadmissible for temporary entry when travelling with a family member who is inadmissible on any grounds. Bill C-43 will allow low-risk foreign nationals admission for temporary entry when travelling with a family member who is inadmissible on grounds of serious criminality, criminality, health, finance, misrepresentation or non-compliance.
Bill C-43 also requires inadmissible persons seeking Ministerial relief to submit a formal application. The Minister’s authority to grant relief on his or her own initiative, without formal application, will be explicitly stated in the Act.
Currently, foreign nationals or permanent residents are inadmissible on security grounds for any act of espionage against any democratic government, process or institution. The new legislation proposes that foreign nationals or permanent residents be inadmissible for any act of espionage against Canada or contrary to the interests of Canada.
LOSS OF APPEAL RIGHTS
The most significant change proposed in Bill C-43 is the loss of appeal rights for many permanent residents. The Bill would deny access to the IAD for those sentenced with more than six months’ imprisonment. This would result in deportation without appeal for permanent residents with a six month prison sentence, regardless of whether the sentence is more severe than average given the variations in sentencing patterns across jurisdictions for equivalent offences. The Bill will also deny IAD review to permanent residents convicted of offences outside Canada, or who are believed to have committed foreign offences, even without conviction.
Six Month Imprisonment Rule
Currently, the government has excluded only the most serious cases of criminality from access to the IAD. For the past ten years, the test for “serious criminality” has been a sentence in Canada of imprisonment for two years or more. Thus, a permanent resident convicted of a criminal offence in Canada and imposed with a two year sentence of imprisonment could be deported without any IAD review.
Bill C-43 proposes to reduce the two-year threshold to six months imprisonment. Therefore, this proposed change will capture more permanent residents and subject them to “automatic” removal with no review. This proposed change does not take into consideration whether the individual has been in Canada for 35 years or since they were a child, or whether the individual is rehabilitated and poses no risk of recidivism, or whether family and children are dependent on them for care and support.
Therefore, this proposed change is unnecessary and excessively punitive. It will lead to unnecessary deportations and excessive hardship to families in Canada.
Conditional Sentence of Imprisonment
The term “Imprisonment” has been interpreted by the courts to include conditional sentences, which are sentences served in the community, as opposed to jail. Conditional sentences are often imposed for much longer durations than an equivalent sentence served in jail. For instance, a judge imposing a conditional sentence as an alternative to a three month jail sentence may impose a six or nine month conditional sentence instead.
Bill C-43 treats a six month conditional sentence as exactly the same as a six month prison sentence. Thus, a permanent resident receiving a six month conditional sentence would be subject to a removal order enforceable without IAD review. Conditional sentences are imposed to reflect less serious criminality and should not be considered so grave as to justify loss of appeal rights, especially in consideration of the consequences to the permanent resident or their family. This raises potential Charter violation issues.
Foreign Offences and Convictions
Bill C-43 denies access to the IAD to permanent residents convicted of foreign offences (regardless of the sentence imposed) or believed to have committed a foreign offence, even with no conviction. There is concern as to why the Bill proposes to eliminate IAD jurisdiction for those who have foreign convictions that do not convey any indication that the offence was serious.
Due to the nature of foreign police and legal systems in certain countries, it is of utmost importance to maintain IAD jurisdiction for inadmissibility categories relating to foreign convictions and foreign offences believed to have occurred (with no conviction).
Inadmissibility based on a foreign conviction is extremely broad. For instance, an individual would be inadmissible if they have a conviction for an offence that, if committed in Canada, would be punishable by potential imprisonment of ten years or more. For example, using a fraudulent document under the Criminal Code carries a maximum penalty of ten years. Thus, a 20 year old permanent resident convicted of using a fake identification to get into a bar while visiting the USA is inadmissible for foreign conviction, regardless if the US court only issued a fine of $200.
Therefore, there is no discretion. An appeal to a deportation order would no longer be available regardless if the offence was truly serious, regardless of the circumstances of the permanent resident, and regardless of the sentence imposed by the foreign court. The concept of proportionality and fairness cannot be maintained without IAD review.
Foreign Offences without Conviction
The need to maintain IAD jurisdiction is most important in situations where removal orders are based merely on an officer’s belief that a foreign offence was committed, without conviction. An IAD review would ensure that evidence of commission of a foreign offence has been properly evaluated. Accordingly, any provision to deny access to the IAD should not apply to inadmissibility based on foreign convictions or commissions of foreign offences.
The transitional provisions of Bill C-43 will deny appeal rights for those with convictions for offences committed before the Bill comes into force, unless CBSA has already referred the case to the Immigration Division hearing before the provisions come into force. The concern is that the timing of referral is not an equitable basis to decide which permanent residents ought to be denied appeal rights.
Therefore, permanent residents who were convicted of “serious criminality” offences and had their sentences imposed by the courts under the current regime may now face significant consequences that were unforeseen by the courts at the time of sentencing. Thus, the retroactive effect of the Bill is particularly harsh. The Bill should only apply to those convicted or charged after the legislation comes into force.
OBLIGATION TO ATTEND CSIS INTERVIEW
Bill C-43 creates a new mandatory obligation for foreign nationals to attend a CSIS interview and answer all questions “for the purpose of an investigation,” if requested to do so by an immigration officer. The requirement to answer anything and everything is of concern. Individuals would be placed in a position of having a legal obligation to provide information about others with no relevance to their own immigration application. Again, this raises potential Charter violation issues. The Charter is not and should not be limited to citizens. Therefore, it is likely the courts will be forced to interpret and amend the new legislation in regards to the obligation to attend a CSIS interview.
MINISTER DISCRETION TO DENY ENTRY
Bill C-43 would create an unprecedented new authority for the Minister to deny entry to Canada on “public policy grounds.” The Minister will be granted unlimited discretion to prevent entry of individuals not otherwise inadmissible to Canada for up to three years. This power allows for potential arbitrary application and abuse. It is also repugnant to the Charter. There is no accountability and the criteria is vague. The Minister would be free to deny entry to those whose views are unpopular or objectionable to the government. The term “public policy” grounds are vague and undefined.
LIMITING HUMANITARIAN AND COMPASSIONATE RELIEF
Bill C-43 would eliminate the possibility of implementing humanitarian and compassionate factors in balancing whether to deport individuals from Canada for certain categories of serious inadmissibility. For example, a permanent resident with brief and minimal involvement in a local gang as a youth, with strong ties to Canada and proof of positive contribution to society would be treated as if they were members of Al Qaeda. Therefore, “organized criminality” under s. 37 can involve minor involvement or a pattern of serious offences such as shoplifting. Inadmissibility may be based on events decades in the past and in very different social circumstances or when the person was a youth. Again, this is also inconsistent with the Charter and raises the issue of fairness and due process.
IRPA currently imposes a two year inadmissibility for misrepresentation. However, Bill C-43 proposes to extend this to five years. The concern is that the new provision makes no distinction between those who intentionally defraud the immigration system and those who do so by mistake or by minor unintentional errors. More importantly, this provision does not take into account mistakes of those who rely on the advice of inexperienced or unscrupulous third parties, such as those who succumb to the temptation to embellish an otherwise bona fide application to enhance their success.
The six month imprisonment rule is of concern and may be considered “cruel and unusual punishment.” The proposed changes will capture crimes of minor severity such as driving offences and even some summary offences. Also, some lawyers have stated that the Bill has nothing to do with the faster removal of foreign criminals as the typical removal cases involve permanent residents who have remained in Canada since childhood. In addition, the Bill may have a negative effect on the criminal justice system as permanent residents facing the disproportionate punishment of deportation might fight charges rather than pleading guilty. The proposed legislation raises several potential Charter issues and should be withdrawn or substantially amended.