Via email: jean-yves.duclos@parl.gc.ca
The Honourable Jean-Yves Duclos
Chair, Standing Committee on Public Safety and National Security
House of Commons
Ottawa, ON K1A 0A6
Dear Mr. Duclos
Re: Submission on Bill C‑12 – Consolidated Comments
I am writing on behalf of the Immigration Law Section of the Canadian Bar Association (CBA Section) to share our recommendations on Bill C-12.
The CBA is a national association of over 40,000 members, including lawyers, notaries, academics, and law students, with a mandate to seek improvements in the law and the administration of justice. The CBA Section has approximately 1,200 members practising all areas of citizenship and immigration law. CBA Section members deliver professional advice and representation to thousands of clients in Canada and abroad.
It is our submission that the Bill contains flaws that open it to constitutional challenge, and that the solutions proposed run a serious risk of exacerbating rather than alleviating existing problems in the immigration field, meanwhile undermining Canada’s commitment to protecting refugees, and eroding the checks and balances that are fundamental to our Parliamentary democracy. We offer this consolidated submission, drawing together themes we have raised in earlier submissions, including our report, Law, Technology and Accountability: Reimagining Canadian Immigration for the 21st Century.1. Overall, our submission recommends that the Committee withdraw Bill C-12 for further study and that broader stakeholder consultation be undertaken before a new version is put forward for Parliamentary study.
1. Introduction
On November 6, 2025, two delegates from the CBA’s immigration law section appeared before the Standing Committee on Immigration and Refugee Protection (CIMM), where they expressed key concerns about the immigration-related provisions within Bill C-12. Our delegates focused on our concerns with the administration of justice, including our view that the Bill runs contrary to our obligations under the 1951 Refugee Convention and the Canadian Charter of Rights and Freedoms.
We wish to begin by stating that our ability to advocate on this legislative package has been limited to date, as the amendments were introduced as an omnibus bill of over 140 pages, and because tight deadlines and word limits on briefs have prevented us from offering more than summary comments. We have often remarked on the attrition of public participation in law reform initiatives, which has become particularly endemic in the immigration field since 2012. During this same timeframe, our system has grown fragmented, unwieldy, and impossible to navigate without legal counsel – all of which has significantly impaired access to justice.
Unsurprisingly, public support for immigration has fallen in this same period, and newcomers to Canada - international students in particular - have expressed grave frustration at being recruited to Canada under the slogan "come to work, come to stay" and then left with no viable pathway to permanent residence. International students and foreign workers have been widely vilified in the media, while the government has failed to fully accept responsibility for having created this untenable situation.
The changes proposed by C-12 are of monumental importance to our immigration system. If enacted, they will allow for sharper pivots and shield another large swath of immigration policy reform from parliamentary oversight. This will do nothing to improve accountability and, in our view, will further entrench inefficiencies already encumbering our system, particularly in respect of downstream effects on our federal court. In our view, it is highly foreseeable that the proposed changes will further compromise procedural fairness, transparency, predictability, and the rule of law, all in pursuit of objectives we do not believe will be attained by the means proposed.
As we stated before, the CIMM committee, these concerns cannot be addressed through the adoption of “carve-outs” to the broad powers conferred by various sections of C-12, or with exceptions to the provisions that seek to render certain refugee claimants ineligible to make their claims to the Immigration and Refugee Board (IRB). For the reasons set out below, viable exceptions cannot be meaningfully codified or circumscribed in the Act.
Although we recommend that the Bill be withdrawn, we are happy to collaborate with the government on initiatives to protect the integrity of the immigration system. We advocate for a system that is efficient, fair, sustainable, straightforward, consistent with Charter values, and that enables full participation for those we welcome to Canada. To this end, we request permission to appear before the Standing Committee on Public Safety and National Security (SECU) before the Bill undergoes clause-by-clause analysis.
2. Transparency and Accountability
The government has presented Bill C‑12 as a means to 'modernize and improve integrity' in the immigration system. Sadly, program integrity in the immigration context has been interpreted in a somewhat reductive way – focusing exclusively on threats posed by “bad actors” from outside the system. Little attention has been paid to integrity issues within the system itself.
Transparency and accountability are integral parts of system integrity. To achieve transparency, the government must establish a system with clear parameters that is navigable, fair, and internally consistent. Discontent and frustration arise when public infrastructure fails to keep pace with population growth. Similarly, both newcomers and their Canadian employers suffer harm when they anticipate a pathway to permanent residence that will never materialize.
In Canada, we have an established regulatory framework for our immigration system that requires our Ministers to grow the system within parameters set with public input. The regulatory review system demands reasonable justification for policy changes. This framework has been eroding since the introduction of Ministerial instructions in 2012, when the Minister first became empowered to select immigrants almost regardless of the classes created by our Act and Regulations, based on algorithms used to manage the Express Entry system on a week-by-week basis.
Our members raise concerns about clients with significant work experience and educational credentials gained in Canada, including those working in critical areas such as climate science or health care, who are unable to attract invitations to apply for permanent residence through Express Entry. Meanwhile, the data makes clear that many invitations are being extended to candidates outside Canada – applicants with no Canadian work experience, no Canadian job offer and no Canadian study history. This raises serious concerns about the fairness and efficacy of the current selection process.
Bill C-12 seeks to extend this same broad discretionary power to temporary residents through further expansion of ministerial powers, further watering down the requirement that policy changes be evidence-based and data-driven. This will further remove immigration policy-making from parliamentary scrutiny, systematically diminishing input from subject-matter experts and other stakeholders.
3. The One‑Year Ineligibility Rule (sections 73-75)
The most concerning change proposed by Bill C-12 is that it will render any person ineligible to advance a refugee claim where they entered Canada after June 24, 2020 and made their claim more than 1 year after their first entry. The Minister has not explained exactly why this measure is warranted, but has stated, in general terms, that the measure will deter fraud and manage backlogs at the Refugee Protection Division (RPD).
We have multiple concerns with the amendment proposed by s.73(1) of the Bill – particularly its overbreadth and arbitrariness, and the absence of a mechanism to differentiate between non-meritorious and entirely genuine claims. It ignores that risk often arises long after a person arrives in Canada, for example, due to a change in country conditions. It also fails to accommodate situations in which a person at genuine risk of persecution delays making their claim for legitimate reasons – such as trauma, youth or mental incapacity or where, for example, a perpetrator of domestic violence returns to their country of origin – giving rise to legitimate risk for the person left behind where the country of origin is demonstrably unwilling or unable to offer protection. There are also claimants who take time to fully embrace their sexual orientation or gender identity but nevertheless face extreme risk of persecution if forced to return to their country of citizenship. These are matters outside of the person’s control which do not impugn the bona fides of their claim.
That the one-year bar is to be imposed retroactively from the date Bill C-2 was introduced is particularly offensive to the rule of law. As lawyers, we often recommend that those with viable claims pursue an alternate pathway to permanent residence – especially if they suffer severe trauma that would be exacerbated by having to revisit past persecution. Now, such claimants will be penalized if their alternative pathway fails and they are barred from making a claim. For example, if the marriage that formed the basis for their spousal application ends in abuse, or if they have completed their program of study but still have not attracted an invitation to apply for permanent residence.
In short, Bill C-12 imposes a categorical bar to accessing the RPD on grounds of alleged fraud-prevention. Still, it denies access to many unintended claimants who are entirely undeserving of an ineligibility finding. The use of a blunt instrument that demands no nexus to fraud or wrongdoing, in our view, renders the provision overbroad and therefore susceptible to constitutional challenge.
The government has indicated that the 1-year ban will withstand constitutional challenge because it offers an alternative remedy to those barred from the claims process – namely, a Pre-Removal Risk Assessment (PRRA). We maintain that a PRRA is not an adequate substitute for an RPD hearing for various reasons. Firstly, the PRRA process does not include any right to a hearing, which has been declared essential to the refugee system by the Supreme Court of Canada since 19852. Since that time, the RPD has developed procedural safeguards – including sophisticated RPD rules and Chairperson’s guidelines that have been interpreted and affirmed through a long line of jurisprudence.
The protocols established by the RPD include protections developed over years of careful work, officer training, and decades of judicial interpretation. These protections ensure that claimants have a full and meaningful opportunity to present their evidence, that the hearing is conducted in a trauma-informed manner with access to accommodations for vulnerabilities such as mental health or youth, and that the determination of risk accords with Canada’s obligations under international law – to ensure that people are not sent back to countries where they are likely to face persecution, torture, or cruel and unusual punishment.
The PRRA system, by contrast, has few built-in protections. It is not designed as a mechanism to assess first-instance claims for protection, but rather as a safety valve to address cases in which non-refugee claimants and those excluded from the refugee scheme can raise allegations of risk. The PRRA scheme offers no guarantee of an in-person meeting with the decision-maker, and even where such an appearance occurs, it is an interview rather than a full hearing, and none of the procedural safeguards present at the RPD apply. In short, the PRRA process is not an adequate replacement for an RPD hearing.
There are several other reasons the eligibility bar will have a punitive effect on those referred there. Firstly, for claimants from moratorium countries – i.e., countries where Canada has a policy not to remove anyone due to the overall state of unrest (e.g., there is currently a Temporary Suspension of Removal (TSR) for Iraq, Afghanistan, the Democratic Republic of Congo). 3 Claimants from such countries will not be eligible for referral to the RPD or for a PRRA, because a removal order is a precondition for PRRA eligibility, and those from TSR countries cannot be ordered to leave. In short, persons from moratorium countries will be left in a prolonged state of legal limbo.
Our second concern is that the Minister's basis for proposing the PRRA system as an alternative to the RPD—to reduce backlogs and processing delays—is specious. Processing delays at IRCC have been steadily increasing, notably since the department announced its workload adjustment. For example, the average processing time for a Humanitarian and Compassionate application (which is often filed concurrently with an application for PRRA) is currently posted as being beyond 10 years. This causes us to wonder whether diverting intended RPD claims to the PRRA will be more efficient at all, or whether backlogs and processing delays will in fact be longer. We also note that, where these decisions are challenged at federal court, they drain at least twice the judicial resources, as there is a judicial review of the underlying decision, plus a stay motion – often brought on an urgent basis.
During our appearance before the CIMM, it was suggested that amendments are being contemplated that would carve out exceptions to the 1-year bar. In our second brief, put forward in response to that suggestion, we stated that we could not conceive of any amendment that would effectively codify exemptions without creating a secondary level of adjudication. There is simply no “bright line” test that can be used to distinguish exempted groups.
For example, if the legislation were to exempt those whose claims arose more than one year after their arrival due to a “change in country conditions” it would still be necessary to assess the nature of the change to country conditions – to ascertain whether the change was sufficiently significant to give rise to a viable sur place claim, and whether the change created a new risk for the person concerned.
In short, any exemption that we could contemplate would give rise to the need for a two-tier system – with one step to determine whether an exemption from the eligibility bar is warranted, and a second to assess non-exempted claims on the merits. In our respectful view, this extra layer of triage would slow down rather than streamline processing and merely add to RPD backlogs. We also foresee that many of these eligibility decisions would become subject to judicial review, which would again frustrate the purpose of the amendments by adding additional steps to the process and further burden our courts. For these reasons, we have declined to put forward any recommendations for amendment.
Our final point on this issue is that the UNHCR has cautioned Canada against using statutory bars to exclude specific individuals from advancing a refugee claim on grounds of ineligibility or admissibility, where doing so deprives them of procedural safeguards.4. Bill C-12 does precisely that – depriving access to the RPD in the name of “mass fraud”, even where there has been no evidence that a particular claimant has perpetrated any fraud whatsoever. We do appreciate the concern about rising backlogs at the RPD, but also note that the number of displaced persons has reached an all-time high, which is another viable explanation for the rising numbers. We also note that the RPD already has processes in place to triage and fast-track cases through the Less complex claims process, which allows for paper-based file review and short hearings. This has been very effective, increasing efficiency such that the RPD was able to issue over 58,000 decisions in 2024.5 Increased allocation of resources to this process and to ensuring that CBSA can increase Front End Security Screenings (a limitation identified by the Deputy Chairperson of the RPD in her testimony before CIMM) would enable greater efficiency in a process which has proven to be effective. By contrast, by redirecting this work to a tribunal that has no parallel process in place, there will inevitably be a duplication of effort and lost efficiency.
4. Mass‑Cancellation Powers (s. 72)
Our second major concern with Bill C-12 relates to s.72 of the package, which enables mass cancellation, variation, or suspension of visas or applications (including permanent resident visas, permanent resident cards, temporary resident visas, electronic travel authorizations, temporary resident permits, work permits, or study permits) by Order-in-Council. These powers are circumscribed only to the extent that the orders must be "within the public interest".
In our written brief and oral testimony to CIMM, the CBA expressed grave concerns about the vague and undefined language throughout the Bill, which creates virtually unfettered powers. Worse yet is that Orders-in-Council, as the chosen statutory mechanism, and non-application of the Statutory Instruments Act, effectively remove the exercise of these broad powers from the normal regulatory review process.
In her testimony before the CIMM, the Minister assured the assembled members that she intended to exercise the powers created by s. 72 only in the case of war, a pandemic, or mass fraud. However, we remain concerned that no such constraints are stipulated in the Act itself. Moreover, we fail to see why it is necessary to shield any such amendments behind cabinet confidence, when the stated intent is to communicate openly with the public, and to bring proposed uses forward for parliamentary study. In short, the breadth and nature of the powers, notably their specific exclusion from regulatory impact analysis statements, public notice, and committee study, are overreaching and undemocratic. Once granted, they will be impossible to control.
The CBC has already reported on internal government documents that indicate mass cancellation powers may be used to target “mass fraud” associated with applications from India and Bangladesh.6. This report raises serious concerns that profiling would form part of the Minister’s strategy for combating mass fraud, again without any specific evidence of wrongdoing in respect of any particular applicant. If the government does indeed cancel applications on this basis, we anticipate a challenge pursuant to s. 15 of the Charter, for discrimination on grounds of national or ethnic origin.
This argument is not just a legalistic one; it is a philosophical one. Even if it can be statistically proven that more fraud cases originate from one visa office, it is entirely contrary to our Charter values to initiate fraud-prevention efforts based on country of origin. Doing so unnecessarily stokes racial tension in Canada and jeopardizes the fairness of our justice system as a whole. Reductive, categorical solutions should not be used to address nuanced problems if we are to have a system that is fair and equitable.
5. Safe Third Country Agreement (STCA)
Our third concern with Bill C-12 is the manner in which it reinforces the Safe Third Country Agreement (STCA) with the United States (at s.73).
As you are aware, the STCA was struck down by the Federal Court of Canada7, on the basis that it violates s.7 of the Charter, which guarantees the right to life, liberty, and security of the person. Although the agreement was reinstated after the Federal Court of Appeal reversed the decision of the Federal Court8 In 2021, the Supreme Court of Canada sent the case back to the Federal Court for redetermination, with an assessment of its compliance with s. 15 of the Charter, in 2023. All this to say that litigation over the agreement's constitutionality is still ongoing.
We raise this ongoing because it raises questions about why Canada is seeking to double down on the STCA, particularly at a time when the U.S. is demonstrably frustrating its national human rights and international obligations toward refugee claimants9. This is particularly true for LGBTQ+ persons, who are at systemic risk of refoulement and non‑recognition as 'persons' under U.S. law10.
Without engaging in a broader debate about Canada’s capacity to integrate refugees, it is disingenuous for Canada to claim that this initiative to fortify the STCA is aimed at protecting public safety or improving system integrity.
6. Creation of Designated Representative Regime for Non-IRB Proceedings
We welcome the introduction of Designated Representatives (DRs) for non-IRB matters, as set out at s. 31 of Bill C-12, but are concerned about the lack of transparency caused by leaving the entire scheme to be defined in Regulations.
The appointment of DRs in non-IRB matters will ensure the voices of the most vulnerable, children, and those with significant mental health or trauma, are heard by enabling meaningful participation of these individuals in immigration proceedings through supported decision-making. However, unlike the DRs that appear before the IRB, Bill C-12 has extended the responsibilities of those appointed to non-IRB matters to making decisions on behalf of a minor or a person who is unable to appreciate the nature of the proceedings in certain circumstances.
This substitute decision-making could allow a DR to waive a person's right to an application, such as a PRRA, without any requirement to consult the person concerned or any principles to guide their decision-making. Not only would this infringe on an individual's right to be part of decision-making, but it could also remove their right to seek protection, for example, in the context of a PRRA. We recommend that this section of s.31 be withdrawn. It is also vital in these circumstances that there be an independent body responsible for overseeing the work of the DRs, and potentially even a complaints mechanism to ensure that the powers conferred are not abused.
Before proposed Regulations are put forth, it is also vital that there be extensive consultation with subject-matter experts and stakeholder groups to ensure that the system is built in a way that protects, rather than further compromises, the interests of those it seeks to serve.
7. Denial of Hearing Rights to Persons Outside Canada
Finally, we address section 38 of Bill C-12, which denies admissibility hearings to individuals who are outside Canada when their hearings are convened. This provision unreasonably violates fundamental principles of natural justice, and without any reasonable basis.
As it currently stands, serious admissibility findings that will have a long-term impact on a person's ability to enter or remain in Canada give rise to a hearing before the Immigration Division of the IRB. There, the person concerned will be able to present evidence to convince the member that they are not inadmissible. If they are successful, the admissibility order will be set aside; if they are unsuccessful, they will be issued the removal order commensurate with the allegation made out against them.
If this new provision comes into effect and no hearing is convoked against a person who is subject to a serious admissibility allegation, that finding will either be made in absentia, which will subject them to an exclusion order of one or five years, or to a deportation that will bar their entry to Canada for life. Given that the IRB is equipped to conduct remote hearings and that the potentially dire impacts of exclusions arising from an adverse finding may be significant, this right to a hearing must be preserved.
8. Conclusion and Recommendations
For the reasons set out below, we make the following recommendation with respect to Bill C-12:
- That it be withdrawn or deferred for further study, to be undertaken in collaboration with a panel of subject matter experts and other stakeholders.
- That the one‑year ineligibility bar be eliminated, to maintain full access to RPD hearings for all claimants.
- That the mass‑cancellation powers conferred by s.72 be removed, or tightly constrained and subject to robust parliamentary study and regulatory review.
- That there be no further expansion of the STCA.
- That any fraud prevention efforts undertaken be subject to an adjudicative process aimed at targeting actual cases of fraud or wrongdoing, rather than resorting to generalizations based on date and place of filing.
- That the provision extending the responsibilities of DRs to include substitute decision-making be withdrawn, and an independent oversight body or complaints mechanism be created.
Respectfully submitted,
(original letter signed by Noel Corriveau for Jatin Shory)
Jatin Shory
Chair, Immigration Law Section
End Notes
1 Law, Technology, and Accountability: Reimagining Canadian Immigration for the 21st Century, CBA Report, available online.
5 Claims by Country of Alleged Persecution, Immigration and Refugee Board of Canada, available online.
6 Ottawa seeking mass visa cancellation powers to deter fraud from India: internal documents, CBC article. available online.