A submission to the Minister of Manpower and Immigration for consideration by the Canadian Immigration and Population Study
Many submissions will surely be made to the Task Force regarding the weight which the new Immigration Act should give to such factors as family ties, cultural background, job skills and intended place of residence in judging applications for permanent residents in judging applicantsions for permanent resident status. The Association, however, wishes to deal solely with those aspects of immigration law having more obvious civil liberties implications: the mechanics of visa issuance, the categories of persons who are wholly prohibited from entering Canada, and the procedures by which immigration officers apply the criteria of the Act to individual cases, especially doubtful applications.
We wish to emphasize one principle that is perhaps implied in later sections of this submission that, in our view, substantially identical procedural safeguards should apply to potential permanet residents and to non-citizens intending to enter Canada for a special or temporary purpose. In a modern democratic state, civil liberties are seen to be indivisible, not favours to be “given” to some and withheld from others. And even in narrow terms of economic self-interest, it is obvious that certain classes of non-immigrants, particularly crews and those entering Canada by employment visa, confer an economic benefit in Canada in many ways comparable to that of a working immigrant. Insofar as immigration policy is a brach of socio-economic policy, the nation’s interest in a correct application of its statutes to such non-immigrants, compares ot its interest in potential permanent residents. In our view, however, the argument from principle weighs more heavily than that from economic policy, in dictating a consistent reform of the Act in connection with all non-citizens seeking to come into Canada, and not merely in connection with immigrants.
Whatever divergences there may be regarding more concrete details of the new Act, we take it there is general agreement that equal treatment in law should be given to those in relevantly similar circumstances, and that the substance of the law applied should flow from a coherent policy consistent with our national aims. Alternatively, these principles may be expressed as a non-discriminatory application of the law, and a fair substantive law.
We do not think it is useful in this brief to review extensively the existing situation as it may be gleaned from statute, regulations, court cases nad departmental practices at hte field leve. It is our hope that the new Act will be a fresh start rather than a piecemeal reform and accordingly, we emphasize what we think the new Act should accomplish, rather than the state of the existing law.
We think there is very little to be added by way of generalities as to the approach the new Act should take, except that the following points seem in keeping with Canadian political aspirations:
- The criteria nad selection standards of immigration law should be openly published.
- These criteria should be neither so complex as to require constant clarification from senior officers or review tribunals, nor so vague as to constitue a regime of men rather than of laws.
- Prohibitions (grounds of exclusion and deportation) and procedures should be enacted solely with an eye to the protection of a valid national interest, not as devices to cut down arbitrarily the number of persons eligible to enter Canada.
- All immigration decision-making procedures should formally incorporate, either by statute or regulations, safeguards consistent with the principles of fundamental justice.
The recommendations that follow fall into four major divisions:
- The concept of prohibition
- Immigration decision-making processes
- Appeal and review rights
- The permit system
In each division, the civil liberties objectives or problems are set out first, followed by the Association’s proposal. Although certain obviously clashing features of hte existing Act are noted, none of these proposals is to be read as a statement of the existing law or practice or as an assertation that the law or normal practice is other than the recommendations. Many of these proposals seem already to be part of immigration practice, but we think such practices should be codified.
In any case, where the general approach of the Department of Manpower and Immigration already resembles that proposed, changes in the statue and regulations will still have the benefit of giving the non-citizen and his or her counsel notice of the criteria that will be applied to the case. Furthermore, a reasonable uniform application of written provisions can be assured by proper appeal and review procedures, while knowledge of “normal practice”is of little avail to the person who has been given a different treatment and is unable to enforce waht are essentially departmental directives.
1. The Concept of Prohibition
Immigration law, as we know it in Canada, is largely a list of standards that are applied to non-citizen who wishes to come into Canada (seeks admission), and a somewhat different list of the standards that are to be applied in the case of a non-citizen, whose continued presence in Canada is being challenged. Each of these standards is expressed negatively and non-compliance is said to place on in a “prohibited” class. Structurally, the current Act makes mandatory the admission of a non-citizen who succeeds in showing that he or she is non a member of any prohibited class [paragraphs 19(3) and 27(2)(b)]. In the case of a non-citizen who is within Canada, the onus shifts to the Department of Manpower and Immigration, which must affirmatively prove such a person’s membership in a prohibited class before deporting the person. Given this format, it is appropriate, in a technical sense, to say that a non-citizen’s admission to Canada or continued presence in Canada is a qualified right, a right subject solely to prohibitions.
However, the proposition that every person who is not prohibited is admissible or may remain in Canada as of right (without reference to any further discretion), obscures the practical workings of the current Act. Insofar as one wishes to select among those non-citizens seeking to come to this country, to call the relatively less qualified in any given year “prohibited persons” is misleading, since the case of a worker whose skills are temporarily not in demand, it is an upturn in the economy and not in qualifications that will render the person admissible. Furthermore, the ostensibly precise and evenhanded character of our immigration law in connection with border applications is nullified by current practice, which treats the lack of visa as a fatal defect in application for permanent resident status. Unfortunately, obtaining an immigrant visa is not a matter of course; showing that one complies with every provision of the Act other than the visa regulations gives no right or entitlement to a visa.
Moreover, the visa officer is not required to give any reason for the failure to issue a visa, to follow any particular procedure or even to consider the application at all.
The apparent “qualified right” of the non-citizen to be admitted is also watered down by the imprecision of certain of the grounds of prohibition, as well as by the lack of formal channels of review of amny immigration decisions.
In our view, the concept of “prohibited classes” as embodied in the current Act has proved very much of a blunt instrument. Those afflicted with temporarily and inherently remedial problems such as lack of funds, infectious illness, and the like are equated with those considered undesirable by reason of serious (and presumably permanent) physical, mental or moral deficiencies. An overseas immigration officer’s refusal to issue a visa, where one is required, is treated as a ground of prohibition independent of the reasons for such refusal, and the Act even gives and unqualified (though now unused) authority for the promulgation of regulations for:
…the prohibiting or limiting of admission of persons by reason of (i) nationality, citizenship, ethnic group, occupation, class or geographical area of originl (and) (ii) peculiar customs, habits, modes of life or methods of holding property.
It may be that valid national interests eventually will require an explicit limit on the number of non-citizens who will be admitted to Canada for permanent residence or other purposes. Subject to a quota or waiting list arrangement when and if required, the theoretical approach of a qualified right to admission seems to us to be the only one capable of guaranteeing due process of law to the applicant.
While this is not the occasion for a dissertation on the philosophical meaning of due process, we understand it to mean at least uniform application of public standards, duly promulgated by a politically accountable entity—Parliament, the minister or Cabinet. We are of the opinion that the standards imposed by statute or regulation should be exhaustive and there should be no residual discretion to refuse the admission of a person who complies with those standards. A process that allows or requires thousands of similar decisions to be made by the Minister will inevitably be delegated to the field, and such a general discretion will therefore cease to be exercised in accordance with the will of Parliament or the judgment of hte Minister. Even if one attempts to tie the residual discretion to some wide objective (e.g. “the national interest”), the result wil be that hundreds or even thousands of interpretations will co-exist, a different interpretation being placed on the words by each officer enforcing the law. If specific and detailed instructions can be given to the field officers to standardize their exercise of discretion, then there seems to be little reason for not enacting the detailed and specific instructions rather than the vague general term.
In an abstract sense, the question of whether any person who does not fully comply with the statute should be admitted is similar to the question of whether any person fully complying should be refused admission. However, humanitarian considerations are legitimate subjects of an immigration policy and it seems to us that the principle of equality before the law should not operate so as to prevent a small number of “special cases” from receiving more generous treatment than the law requires, or than others should in fact receive. The matter will be more fully discussed in the section of this paper dealing with the permit system.
If the new Act, then, continues to treat the admission of non-citizens as a qualified right (an approach that we favour), and appropriate provision is made to recognize the temporary or “curable” nature of nearly all the classes of prohibition, the task remaining is to eliminate totally those causes of prohibition not in keeping with valid national interests, or with the standards of conduct actually observed in our society. Insofar as possible, the causes of prohibition should be redrafted to be precise and objective rather than vague and subjective.
- Persons who are applying for admission to Canada should continue to be admissible as of right on their showing that they are not inadmissible.
- Visas or comparable documents prerequisite for admission to Canada should (like admission on application at the border) be treated as issuing as a matter of right to any person who shows that he or she is not a member of any class of inadmissibility, other than that related to travel documentation.
- The currrent policy that treats any non-compliance with the Act or Regulations discovered at the border as a cause for permanent inadmissibility should be extensively modified.
- Whether at the visa issuance stage or at the border, causes of inadmissibility that are clearly remediable, justify only a temporary exclusion (or refusal of a visa), not a permanent prohibition. In each such case, the person concerned should be able to apply for admission at a later time in the normal way, at the border officer or visa officer level.
- The current prohibition of virtually every person convicted of an overseas offense (every crime of “moral turpitude”) should be recognized as both excessively vague and disfunctional. Whatever may have been the view of criminality that was taken when this provision was enacted, it is clear that the prohibition bars consideration of an immensely large number of well qualified prospective immigrants, and the relevance of a criminal conviction in the case of most prospective non-immigrants seem marginal. We commend strongly to your attention the words of Mr. Justice Hartt of the Ontario High Court:
…Nor can we continue to talk glibly about ciminals as if they were a breed apart, when estimates show us that almost all of the population will appear in criminal court at some point in their lives. We either have to confine the traditional criminal process to serious and recalcitrant matters, in which case the majority of the problems that now come before the courts would have to be dealt with by other mechanisms, or we shall have to redesign the process to fit the cricumstances and needs of tomorrow.
In our view, if there are any circumstances that justify permanent exclusion in connection with criminality, the logic of such a prohibition can extend only to the serious and recalcitrant matters referred to by Mr. Justice Hartt.
In summary the, permanent prohibition should continue, if at all, only in cases where the cause of the prohibition is not of a nature to lapse with time, or when there is some reaosn to believe that the general principle that those who violate the law can be rehabilitated is inoperative.
In any other case a person should be excluded from Canada onlly during the period of his non-compliance. In the case of nearly every sort of criminality, a statutory period of good behaviour should suffice to wipe out the criminal record and entitle a person to be considered for admission at an ordinary leve, according to the ordinary standards of immigration law.
- To eliminate existing doubts as to the state of the law and for greater fairness, no reference should be made to crimes of moral turpitude in the new Act. Any conviction of any act admitted by an applicant for admission should have bearing on such a person’s immigration status only if:
- it was an offense in the country where it took place and
- it would have been an offense in Canada under the Criminal Codeor certain other Federal statutes.
We think these provisions are necessary to ensure that on the one hand, no offense not known to our criminal law operates so as to affect a person’s Canadian immigration status, nad on the other hand, to ensure that a person who, while in another country, engaged in behaviour in accordance with the law of that country, not be penalized in Canada for that same behaviour.
- A few of the prohibitions should be eliminated altogether. We can see no reason for excluding homosexuals either as immigrants or non-immigrants. Still less should epileptics, whose condition is controllable, be excluded.
- Whether it is treated as a cause for permanent prohibition or temporary exclusion, the question of whether a person is a bona fide immigrant or non-immigrant creates a discretion wholly unfettered on its face. In our opinion, a non-immigrant in possession of a sum of money to be defined by statute should be presumed boja fide, as should any intending immigrant, unless some evidence is brought forth to show such a person’s bad faith.
- The “reasonable cause” prohibitions (there are now four of them, relating to political disaffection, sabotage and involvement with drug trafficking), creates a civil liberties quandry, as does the treatment of persons suspected of involvement in organized crime.