By Louis Century, JD/MGA student and Research Assistant at the David Asper Centre for Constitutional Rights
On April 30 of this year, Prof. Audrey Macklin made submissions on behalf of the Asper Centre before the House of Commons' Standing Committee on Citizenship and Immigration. The Committee was considering Bill C-31, Protecting Canada's Immigration System Act, a sweeping piece of legislation with far-reaching changes to refugee determination, detention of newcomers and family reunification, among other issues.
Appearing alongside Prof. Sean Rehaag of Osgoode Hall Law School and lawyer Barbara Jackman, Prof. Macklin highlighted new ministerial powers to revoke permanent residence. She also responded to the wide-ranging and often zealous questions of committee members.
Under the current law, refugee status may be "vacated" if it was obtained by misrepresentation or fraud; this also results in revocation of permanent resident status and, as a result, deportation. In contrast, where refugee status is "cessated" because the conditions in the source country improve, refugee protection is lost but permanent residence is not. Bill C-31 as originally drafted imposed the same consequence for cessation as for vacation - loss of permanent residence - even though changes in country conditions are entirely out of the control of the individual. In other words, bona fide refugees who built their lives in Canada could be deported years later, if the Minister decides their home country is no longer unsafe.
In supporting written submissions, the Canadian Association of Refugee Lawyers (CARL) - of which Prof. Macklin is a member - identified four section 7 Charter violations flowing from this change. These include deportation absent any deliberate breach of permanent residence conditions; the arbitrary impact of revocation following cessation, bearing no relation to the legislative objective of revoking fraudulently obtained permanent residence; the overbreadth of revoking permanent residence, since the legislative objective is achieved under existing law; and fear and anxiety about status, amounting to serious, state-imposed psychological stress.
Two weeks after Prof. Macklin made her submissions, the Minister announced changes to Bill C-31, perhaps to address this provision's apparent unlawfulness. A revised version of the bill removed the automatic revocation of permanent residence where cessation was based on a change in country conditions since the refugee came to Canada. However, it retained revocation of permanent resident status for cessation based on other grounds. Even with a softening of this draconian provision, the bill remains deeply problematic.
Revocation of status is one of several problematic aspects of Bill C-31. Prof. Macklin and others have spoken out against the bill's arbitrary limits on access to an appeal and its mandatory detention provisions. CARL's written submissions, co-written by Prof. Macklin, identify Charter and international law violations in the bill's dramatically expedited timelines for refugee determinations and appeals, its designation of certain countries as safe, resulting in procedural disadvantages based on nationality, and its blanket 5-year bar on family reunification applications.
Broader than its particular provisions, Bill C-31 represents a troubling expansion of Ministerial powers in immigration law. Prof. Macklin criticized the trend of "framework legislation" and increased reliance on Ministerial orders and instructions in the context of Bill C-31. Both the process of designating countries as safe and the process of designating people as irregular arrivals "are not subject either to parliamentary oversight or even to the process for regulatory rule-making by cabinet." The enormous scope of Ministerial discretion that pervades Bill C-31 suggests that should the bill pass, Charter challenges will not be limited to scrutinizing the letter of the law, but will also include attacks on the Minister's exercise of these unprecedented levels of discretion.
After Prof. Macklin said she had not seen a substantive legal defence of Bill C-31's constitutionality, MP Rick Dykstra (PC), a member of the committee, asked if she truly believed that the government would bring forward legislation without testing its Charter compliance. Prof. Macklin replied, "I have yet to hear any defence of the legality of the legislation, apart from saying we had it checked. I would be delighted to hear a substantive engagement about the content of the bill, and look forward to that." Mr. Dykstra conceded, "Okay, that's a fair point." The government to date has not provided a constitutional analysis of the bill.
