BarTalk April 2001
Volume 13, Number 2

Immigration Section Protests Bill C-31

The National Citizenship and Immigration Law Section says that the new Immigration and Refugee Protection Bill removes essential safeguards necessary to ensure that critical decisions – such as deportation – are made fairly and appropriately.

“The processes contained in the new Bill are contrary to Canada’s commendable history of fairness and access to justice,” says National Citizenship & Immigration Law Section Chair Michael Greene, of Calgary, in reaction to the new legislation. “The Minister has made some minor changes to the Bill. But it doesn’t matter what colour you paint it, a three-legged horse is still a three-legged horse.”

The CBA’s concerns date back to last spring’s Bill C-31 which eventually died on the order paper with last fall’s election call. The CBA presented an extensive analysis of the Bill to Immigration Minister Elinor Caplan in September 2000. The CBA is calling for a full Parliamentary study of this important and complex Bill that affects the rights of hundreds of thousands of people.

The CBA opposes three key areas in the new legislation:

• Permanent residents could no longer have the Immigration Appeal Division review the circumstances surrounding their loss of status or deportation when their case is based on broad grounds of inadmissability such as criminal acts. “For example, a permanent resident who came to Canada as a child, has lived here for many years, is raising a family, pays taxes, but is convicted of one criminal offense, could be deported without review of all the circumstances,” explains Michael Greene. “The failure of the legislation to guarantee any review of circumstances and process is unprecedented, unnecessary, and unconscionable,” adds Mr. Greene.

• The new Act limits judicial review of visa office decisions made overseas by requiring that applicants request leave of the Federal Court. Historically, the Federal Court grants leave in only a small minority of cases. “The leave provision will effectively insulate decisions made by visa officers abroad from any judicial overview,” says Gordon Maynard, of Vancouver, a member of the Citizenship & Immigration Section Executive.

• The new legislation introduces processes that will deny permanent residents traveling overseas from returning to Canada, even to participate in proceedings to determine their status, although their status may be perfectly valid. “These provisions diminish the right of entry that has been fundamental for permanent residents, and impairs residents’ ability to challenge the alleged loss of status,” says Ben Trister, of Toronto, Citizenship & Immigration Section Vice Chair.

The National Citizenship & Immigration Section is preparing a brief to address its concerns which will be presented to the government at the first opportunity.

Illegal Mail Searches Are Unacceptable

The National CBA is calling on the Government of Canada to immediately cease both its illegal random mail searches – including those covered by solicitor-client privilege – and then sharing the information with other government departments.

In a letter to the Ministers of National Revenue, Citizenship and Immigration, and Justice, the CBA says the Government’s conduct in this matter is of grave concern. A 1992 law empowers government inspectors to open mail weighing over 30 grams without a warrant from a judge. However, the law requires officials to have reasonable grounds to believe that the package contents might be illegal in order to open it.

“In these recent cases the Revenue Minister says that the searches are random. Random searches don’t meet the requirement of ‘reasonable grounds,’” says Michael Greene, of Calgary, Chair of the National Citizenship and Immigration Section.

In light of a recently launched investigation by the Privacy Commissioner into the activities of the Department of Citizenship and Immigration in setting up a database of information, the CBA goes on to request the Minister of Immigration to deliver a copy of the Mail Seizure database to the Privacy Commissioner. “We are asking the Minister to cooperate fully with the Privacy Commissioner in the investigation of this database,” says Michael Greene.

The CBA has already expressed serious concerns about Bill C-11, the recently re-introduced immigration and refugee legislation. “We are concerned that the same principles and statutory wording that allow government officials to open the mail of all Canadians appear throughout the most important enforcement provisions of the proposed law. We call on the Minister to remove these provisions from the Bill,” says the letter.

On February 21, 2001, the CBA called Bill C-11 “unfair” to immigrants in that it removes the essential safeguards necessary to ensure that decisions such as deportation are made fairly and appropriately.

National Technology eSurvey

Can technology help you practise smarter? How is technology changing the business of law? What software applications best meet lawyers’ needs? The CBA’s technology e-survey will help you face the future armed with knowledge – the key to making sound decisions on technology needs. Members who complete the survey will be eligible for prizes including: a Caribbean cruise for two; laser printers; scanners; technology services and a two-month lease for a Ford Expedition. Connect to the future.

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These articles were published in the April 2001 issue of BarTalk and are subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.