Bill C-43 was introduced in the House of Commons on 20th June 2012 by Jason Kenney, the Minister of Citizenship, Immigration and Multiculturalism.[1]

Bill C-43 amends the inadmissibility-related provisions of the Immigration and Refugee Protection Act (IRPA), which determine who may not enter or remain in Canada.

Bill C-43 seeks to amend and add provisions related to:

  • Evaluating inadmissibility
  • The consequences of being found inadmissible on certain grounds and of having inadmissible family members
  • Granting relief from inadmissibility
  • New regulatory authorities for immigration applications
  • Formal procedures for the renunciation of permanent resident status

Bill C-43 has several problematic provisions since it seeks to amend the Immigration and Refugee Protection Act (IRPA) to give the minister immense discretionary power to decide whether an individual is ineligible to become a temporary resident for up to three years on “public policy considerations.” Additionally, Bill C-43 would ease the way to deport refugees, permanent residents, and visitors for “serious criminality” – crimes where the punishment is six months or more imprisonment. This article will go through an overview of the proposed changes and highlight some of the more problematic provisions in detail.

Overview of the Changes

A list of all the changes which are made by the Act may be found at this link: and the revised bill is available at this link.

Highlights of the proposed changes under Bill C-43 include[2]:

  • The process for deporting foreign nationals found inadmissible on security grounds, for violating human and international rights, or for organized criminality would be streamlined by limiting access to the Immigration Appeal Division. This would in turn reduce the time that individuals may remain in Canada by up to 14 months.
  • A rule that would deny an appeal to the Immigration Appeal Division for individuals with foreign convictions for crimes that would carry a maximum sentence of 10 years or more in Canada.
  • A rule that would deny entry to Canada to those with a family member inadmissible for security and human rights reasons or organized crime connections, even if that family member is not travelling with them
  • Increased consequences for those applicants who misrepresent themselves or provide false information on their immigration applications. The bar on admissibility would increase from two years to five years. As a result, anyone who gives false information on their immigration application will not be allowed to enter Canada for five years.
  • Mandatory CSIS interviews if requested by officials
  • Reporting conditions for those under deportation orders
  • Automatic inadmissibility for non-Canadians and permanent residents for acts of espionage or acts against Canada’s interests.

Effect of Changes

Some of the more problematic provisions are discussed in greater detail below:

Limitation of Humanitarian and Compassionate Applications for Foreign Nationals

Applications for permanent residence based on humanitarian and compassionate considerations may be made either by a foreign national or on the Minister’s initiative. Bill C-43 acts to change sections 25 and 25.1 of IRPA to exclude a foreign national who is deemed to be inadmissible on security grounds, for violating human and international rights, or for organized criminality from applying for permanent residence based on humanitarian and compassionate considerations.

The effect of this change is to eliminate one of the options for entering or staying in Canada for individuals found inadmissible on the above grounds. Ministerial relief and the Pre-Removal Risk Assessment still remain options for the group of people under this category; however, a positive Pre-Removal Risk Assessment does not result in confer protected person status but only stays removal from Canada.

Longer Penalty for Misrepresentation on Application

Clause 16 of Bill C-43 acts to increase the penalty for misrepresentation, so that a permanent resident or foreign national who misrepresents on an application may not enter or remain in Canada for five years (previously the ban was 2 years). Clause 16 also adds that a foreign national may not apply for permanent resident status while they are inadmissible for misrepresentation.

Change in Definition of Serious Criminality

Section 36 of IRPA provides for the definition of inadmissibility on grounds of serious criminality using sentence terms in Canada and their equivalent for acts committed outside Canada. Bill C-43 acts to widen the scope of groups who fall within the definition of serious criminality in the inadmissibility context.

Under the current IRPA, serious criminality is defined as a crime punished in Canada by at least a term of two years of imprisonment. Clause 24 of Bill C-43 changes this definition by stating that serious criminality is a crime punished in Canada by a term of at least six months imprisonment. Individuals that are inadmissible on serious criminality grounds may not appeal their decision to the Immigration Appeal Division. By lowering the standard of serious criminality from 2 years to 6 months, Bill C-43 seeks to preclude individuals from access to the Immigration Appeal Division to appeal their inadmissibility finding and removal order.

Clause 24 also seeks to preclude rights of appeal for those who are found inadmissible on grounds of serious criminality for convictions that constitute an offence outside of Canada, and that if committed in Canada would be an offence punishable by a term of imprisonment for at least 10 years.

Several countries have other standards for what constitutes a crime. For example, in some countries, simply being a member of an opposition party constitutes a serious crime. Bill C-43 would also apply to these individuals who have been convicted abroad.

This change is also problematic since new sentences brought in by the Conservatives’ crime legislation make a whole host of non-violent crimes subject to mandatory minimums. People convicted of offences that may not be considered serious, such as threatening or mischief, will be included under serious criminality. Additionally, with denying access to appeal, there would be no chance for any consideration of the circumstances of the offender, such as whether it was a first offence or how children may be affected by the deportation.

Inadmissibility Based on Family Members

Section 42 of IRPA states that a foreign national may not enter or remain in Canada if they are accompanying a family member who is inadmissible. However, if the foreign national has a family member who is inadmissible but is non-accompanying, the foreign national may enter Canada as long as they have not made an application for permanent residence and the non-accompanying inadmissible family member is not a spouse or a dependant child.

Bill C-43 acts to change this provision so that temporary residents and applicants for that status are inadmissible if their family member is inadmissible on grounds of security, violating human and international rights, or organized criminality, even if the inadmissible family member is non-accompanying.

Broadened Ministerial Powers

Clause 8 of Bill C-43 gives the Minister of Citizenship and Immigration the authority to issue a declaration regarding a foreign national. The declaration made by the Minister on their own initiative has the effect of preventing a foreign national to become a temporary resident. If the Minister issues a negative declaration, a foreign national must not seek to enter or remain in Canada as a temporary resident. This decision by the Minister is to be founded based on their opinion and justified by public policy considerations. However, public policy considerations are a very broad and vague concept which remains undefined in the IRPA. As a result of these arbitrary powers that will rest with the Minister, the immigration system would become even more politicized.

References:

Julie Bechard and Sandra Elgersma, “Legislative Summary of Bill C-43: An Act to Amend the Immigration and Refugee Protection Act (Faster Removal of Foreign Criminals Act)” 41st Parliament, 1st Session. Available at: http://www.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?source=library_prb&ls=C43&Parl=41&Ses=1&Language=E&Mode=1#a1

Laura Payton, “Deporting foreign criminals bill moved forward in House” (CBC News) http://www.cbc.ca/news/politics/story/2012/09/24/pol-deporting-criminals-bill-moves-forward.html

 

[1] Julie Bechard and Sandra Elgersma, “Legislative Summary of Bill C-43: An Act to Amend the Immigration and Refugee Protection Act (Faster Removal of Foreign Criminals Act)” 41st Parliament, 1st Session. Available at: http://www.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?source=library_prb&ls=C43&Parl=41&Ses=1&Language=E&Mode=1#a1

[2] Laura Payton, “Deporting foreign criminals bill moved forward in House” (CBC News) http://www.cbc.ca/news/politics/story/2012/09/24/pol-deporting-criminals-bill-moves-forward.html