Reducing fairness for refugees and permanent residents

October 2012

Bill C-43 contains a number of provisions of concern to the CCR because they will lead to less fairness, do not honour Canada’s international legal obligations and deny some people the right to appear before an independent decision-maker.

Less fairness for people inadmissible on grounds of security, human or international rights violations or organized criminality

These inadmissibility sections are extremely broad and catch people who have committed no crime and represent no danger to safety or security. Among those affected are people who are inadmissible simply because they worked against undemocratic or brutal regimes.

Bill C-43 would deprive such people of fair consideration of their situation, by:

• Limiting the scope of the exemption from inadmissibility (known as ministerial relief) to national security and public safety considerations.
• Denying access to humanitarian and compassionate (H&C) considerations
• Imposing mandatory conditions when released from detention.

These changes are inconsistent with the Canadian Charter of Rights and Freedoms and Canada’s international legal obligations:

• The limiting of ministerial relief will prevent some refugees from making a refugee claim, leading to Canada returning them to face persecution, in violation of our international legal obligations under the Refugee Convention.
• The proposed new wording for ministerial relief will prevent the Minister from considering whether Charter rights would be violated if a person was denied ministerial relief. The Supreme Court has already said that Charter rights must be considered.
• Elimination of access to H&C will prevent consideration of the best interests of any affected child, contrary to Canada’s obligations under the Convention on the Rights of the Child.

Less fairness for permanent residents facing loss of status because of serious criminality

Bill C-43 denies permanent residents the right of appeal to the Immigration and Refugee Board if they are sentenced to imprisonment for six months or more (currently it is 2 years). This means that these permanent residents will be removed without an independent decision-maker considering all the relevant circumstances of the case, which might include:

• The fact that they came to Canada as a child and have lived effectively all their life in this country. They may have no family or connections in the country of their birth, and not even speak the language.
• They are suffering from mental health problems, which contributed to the commission of the crime.

For details on these and other concerns, see the CCR submission.

Comment on immigration amendments in C-10 (omnibus crime bill): trafficking in persons

Bill C-10, the omnibus crime bill introduced September 20, 2011, includes amendments to the Immigration and Refugee Protection Act. These amendments would give immigration officials the power to deny a work permit to applicants overseas, on the basis that they might be exploited in Canada.

The Canadian Council for Refugees opposes these amendments.

The approach is condescending and moralistic. The amendments empower visa officers to decide which women should be kept out of Canada for their own good. They fail to protect the rights of trafficked persons already here in Canada.

Exploitative jobs should not be on offer

The amendments do not address the root problem with the existence in Canada of jobs that humiliate and degrade workers. Work permits are issued to individuals by visa officers after the employer’s job offer has been validated by Human Resources and Social Development Canada. The backgrounder refers to exotic dancers and low-skilled labourers, and suggests that they might be vulnerable to humiliating and degrading treatment. Why are job offers approved by the government if the work may humiliate and degrade workers?

Excluding women is not protecting them

The bill proposes to address the problem of exploitation by excluding people, mostly women, from Canada. It is demeaning for women to have a visa officer decide that they should be kept out of Canada for their own protection.

Failure to protect the most vulnerable

The bill fails to address the situation of the most vulnerable of exploited non-citizens: those who have no valid work permit. In fact, closing the door on valid work permits may expose women to greater vulnerability, by forcing them underground.

A moralistic approach

The government’s focus on strippers betrays a moralistic approach. Instead of passing moral judgment, the government should work on ensuring that non-citizens' rights are protected and that they have the freedom to make informed choices about their own lives.

Responsibility to protect and assist trafficked persons

Canada is a signatory to the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children. One of the purposes of the protocol is to protect and assist the victims of trafficking in persons, “with full respect for their human rights”. In line with this protocol, Canada must take more concrete action than simply refusing a work permit, if there is evidence of trafficking. Action should be taken to refer the woman to the appropriate local institutions or authorities for her protection and to promote the prosecution of the criminals involved.

The law needs to be amended to protect trafficked persons

Instead of amending the law to deny rights to women who may or may not be vulnerable to trafficking, we should change the law to ensure protection for trafficked persons.

Currently, non-citizen women, children and men who are trafficked into or within Canada often fall between the cracks in the system. Detained and deported, they may be treated more as criminals than as victims of a crime.

Legislative amendment is needed to bring a permanent and fundamental change in policy so that trafficked persons in Canada are protected. The Canadian Council for Refugees has developed a specific proposal for legislative amendment to protect trafficked persons.