ARCHIVED – Speaking notes for the Honourable Jason Kenney, P.C., M.P. Minister of Citizenship, Immigration and Multiculturalism at an event at the Faculty of Law, University of Western Ontario

London, Ontario, February 11, 2011

As delivered

Good afternoon. I want to talk to you about a serious issue, and I actually want to get on the record about a question about immigration law and the interplay between our efforts to enforce the law and the courts and the way they apply the law to different cases. So I am really honoured to be here.

I’d like to begin with the results of a poll that gives a sense of the enormity of the task facing my Ministry, which operates the largest immigration program in the world, in relative terms. The poll, which was commissioned by the Historica Dominion Institute and the Munk Centre for Global Affairs at that small university called the University of Toronto, surveyed people around the world with the following question: “If I had a choice to live in Canada or stay in my current country, I would move to Canada.” The poll found that more than half of the adults of the world’s 24 leading economies agreed with that statement, expressing their desire to immigrate to Canada. Breaking down the results by country, more than 77 percent of people in China, 71 percent in Mexico, 68 percent of India, 58 percent of Saudi Arabia, and 53 percent of Russia would come to Canada if given the choice. All told, that’s well over two billion people. That’s a huge number. It’s a good problem to have.

As Canadians, we should be proud of the fact that so many people want to come to our country. Our popularity is also an important competitive advantage in the global economy, which allows us to attract talented and hard-working immigrants from around the world, many of whom of course go to Western, and indeed this law school, as foreign students, and many of whom will be able to go on now to become permanent residents under the New Canadian Experience class that we’ve introduced.

But obviously Canada is not able to welcome every person who says that they’d like to immigrate here. To even attempt to do so would overwhelm my Department’s capacity to process all those applications, the capacity of our security agencies to screen them, and our country’s capacity to find work and help them to successfully integrate. But the poll highlights a reality that my Department deals with on a daily basis. Despite Canada having the highest relative level of immigration in the developed world, where we add about 0.8 percent of our population each year – in fact 2010 we welcomed 282,000 new permanent residents, the highest intake of immigration in 57 years. But even with that kind of openness and generosity, there are far more people who want to come here than we will ever be able to accept. That’s just a mathematic reality.

And because there are so many people who want to come to Canada, we established fair and reasonable criteria for admission. Anyone who doesn’t meet the criteria is not allowed in. Among the many criteria are, for example, an objectively demonstrated proficiency of English or French, a prearranged job offer, or an offer of admittance to a recognized university. These criteria are closely linked with Canada’s success.

However, while the vast majority of people who want to come to Canada will do so through legal means, many of them will try to come to Canada any way they can, and some even if that means coming illegally. I’m talking here about people who come to Canada as visitors or tourists, and end up overstaying; or those who cross our land border from the United States illegally, which happens more often than you might imagine; or people who pay human smugglers to bring them here either as individuals on an airplane, like the fellow with the – the so-called masked man, who was released from immigration detention yesterday; or on dangerous vessels across the oceans, rather than applying for refugee status at a United Nations High Commissioner for Refugees office abroad.

This is a serious problem because, when the integrity of our immigration system is compromised, it undermines the entire immigration process, and it undermines the confidence and respect for that process that we require amongst all of those law-abiding immigrants. When Canadians – and furthermore, when Canadians don’t think the government can control its own borders, public support for generous levels of immigration drops significantly. We see this consistently over time. Our good work attracting new Canadians to help us build our country is thus – and our traditional of openness – is thus undermined and jeopardized by a pretty small number of bad actors.

So for this reason, much of the work that I’ve done since becoming Minister of Immigration since late 2008 has been designed to strengthen the integrity of our immigration system. You can see that in the focus – that focus in the legislation that we’ve introduced, which will, for example, Bill C11, the Balanced Refugee Reform Act, which was adopted by Parliament unanimously this summer and which will be implemented later this year, and which will result in much faster protection for bona fide refugees and much faster removal of false refugee claimants than is currently the case.

We’ve done a number of other things to reinforce the integrity of our system. Parliament is in the process of adopting our delicately named, ‘Cracking Down on Crooked Immigration Consultants Act,’ which will impose tougher penalties on those give fraudulent advice to would-be newcomers. We have posed objective third-party language testing for applicants for immigration, so that people can no longer just print something off the Internet and send it in as their language sample, which was the case previously. The Canada Border Services Agency has increased enforcement activity with respect to fraudsters in immigration, particularly, for example, the problem of bogus marriages, where people come from abroad, never actually live with their sponsored spouse, a very serious problem. And as well, we’ve done some positive things to help encourage people to go through the appropriate channels, like the introduction of the Canadian Experience Class, whereby students – foreign students and high-skilled temporary foreign workers can become permanent residents within Canada.

So given what we have accomplished, it strikes me as a good time to take a deeper look at a recurring challenge to any attempt to reform Canada’s immigration system, which is how the Federal Court interprets the laws that Parliament has passed. And this is where I have some real concerns. As I said, we have made significant improvements in speeding up the decision-making process for legitimate and illegitimate immigrants alike. But if we can’t find a way to reduce the interminable process by which immigration cases creep through the courts, slouching from one appeal to the next to the next, the changes will be of little use, and the progress that Parliament and the government has made will be for naught.

So let me take a step back for a moment. It was clear to me when I became Minister that there were aspects of our immigration and refugee system that were frankly broken. When I say broken, I’m thinking of examples like Parminder Singh Saini. Parminder Singh Saini was convicted of hijacking a plane from India to Pakistan in 1984. He served ten years in jail in India. In February 1995 he came to Canada under a false name and made a successful claim for refugee status – fake travel documents, fake identity, lying to Canada, breaking our laws. A few months later his true identity came to light and he was arrested by immigration authorities. He was ruled inadmissible to enter Canada, and subsequently was certified as a danger to the Canadian public. But despite the fact that the courts repeatedly found that he had lied – literally lied his way into Canada and seriously misrepresented his terrorist past, it took almost 15 years to remove him from this country, thanks almost entirely to the repeated court challenges he was able to file – 15 years. I think if most Canadians knew that, they would be concerned.

During his years in Canada he challenged the opinion that found him to be a danger to the Canadian public; he challenged the original removal order; and he applied to stay on humanitarian and compassionate grounds. When that decision went against him, he filed for a review. After that he was allowed to make a pre-removal risk assessment by my delegate. When that was rejected, he filed for a review of that assessment. Finally, he made a request for a deferral of his stay order. It wasn’t until January of last year that he was finally removed from Canada, again more than 15 years after coming here fraudulently. Fifteen years after having – the time spent gaming and abusing our immigration system. What’s even worse, when he finally – when we finally did succeed in deporting him, his lawyers filed yet another appeal in the courts, trying to force the government to fly him back to Canada from India at taxpayers’ expense.

In case you’re tempted to find any humour in this absurd litany of appeals, remember this – that this is the same process – the same process – that would apply to any serious criminal, any terrorist, any dictator who managed to come to Canada did, as Mr. Saini did, on a false passport. When I say dictator, I’m not using a reduction ad absurdum argument. We’re actually dealing with some recently deposed dictators and actually having to think through our law: how would we deal with these folks if they in fact landed in Canada? And the answers, given the system, are not encouraging.

In fact, there are serious criminals who have been – we’ve been trying to remove who have been able to delay their deportation through repetitive appeals, in one case for about 20 years. Under the current system, the average cost for a failed asylum claimant who uses social assistance while in Canada is $50,000. And it takes on average four years – oh, actually four and a half years – for them to exhaust their appeals that delay their removal from this country. And those numbers are for relatively straightforward, normal cases. For the more complicated cases, taxpayers can be on the hook for hundreds of thousands of dollars. And for the cases where failed claimants tie up the courts for decades rather than years, the cost can run into millions of dollars.

Examples like Mr. Saini’s are why we worked so hard to pass refugee reform legislation. It’s why Parliament acted unanimously. Our Balanced Refugee Reform Act supports the underlying principles of Canada’s asylum system and our humanitarian traditions. It will ensure fairness, give refugees protection faster, and ensure that we respect our international legal obligations under the UN – under the UN Conventions on Refugees and Torture, as well as our own domestic laws. It will also result in expedited removals of false asylum seekers and significant savings for Canadian taxpayers, we estimate about $1.8 billion over five years.

I should add parenthetically that, at the same time, we will be welcoming even more UN refugees to Canada from camps, and people who are victims of ethnic cleansing and warfare from around the world. We’re increasing the number of those bona fide Convention refugees by about 20 percent, as well as the integration support that we give to that. So in saving $1.8 billion through less abuse of our asylum system, we in part will have more resources to help people who are desperately in need of it.

Let me highlight a few of the key elements of the new asylum system that addresses the issue of unnecessary delays while still ensuring fundamental fairness. We are implementing a new information gathering interview at the Immigration and Refugee Board early in the claims process. We are creating a new Refugee Protection Division that will be staffed by public service decision makers rather than Cabinet appointees. They’ll have more continuity over time, greater expertise and efficiency. We’re also creating a new Refugee Appeal Division, something that refugee advocates have called for many years. That means that, if someone comes and makes a claim, it’s rejected at the Protection Division after an interview – after an oral hearing, they can then appeal to this new, fact-based Appeal Division. They can present new evidence there, and indeed, under certain circumstances, they will be able to have an oral hearing there.

Claims deemed to be manifestly unfounded, or that are made by citizens coming from designated safe countries of origin, will be fast tracked. They’ll still have the benefit of the same procedural protections, but they’ll move much more quickly through the system. And such claimants will be subject to immediate removal if their claim is rejected by both the Refugee Protection Division and the Appeal Division.

These changes mean that we’ll be able to identify and provide protection for bona fide refugees in about three to four months rather than the current average of 21 months. So right now some poor fellow gets off the plane at Pearson. He’s somehow managed to escape from Iran, where he was tortured in a prison. He’s got the scars on his back to prove it. And our system now says here, take a number, we’ll get back in touch with you in almost two years’ time. And in the meantime, you’re living in Canada with uncertainty as to whether you’re going to have a permanent resettlement solution here.

On the flipside right now, someone gets off the same plane who’s a manifestly unfounded asylum claimant, who’s just – you know, doesn’t want to go through the regular immigration process, makes up a story, often written up by a crooked consultant. He waits the 21 months to get a hearing, and then he appeals and appeals and appeals, and is typically here for at least four and a half years before we even get – even get around to thinking about removing him.

So these changes mean that we’ll be able to identify and provide protection for bona fide refugees in three to four months, and we’ll remove false claimants after several months rather than several years. But this new Act, this new law, isn’t a cure-all. While we took statutory action to make improvements to the system, no legislation in Canada exists within a vacuum, which brings me to the role the courts play in shaping our immigration system.

I believe that, in a free and democratic society such as ours, judicial decisions should encourage debate over where the line is drawn between legitimate legislative objective and constitutionally protected rights and freedoms. I believe Justice Iacobucci put it best when he wrote that our constitutional structure encourages a dialogue between each of the branches. With that in mind, I offer the following thoughts in the spirit of constructive dialogue between the legislative branch and the judiciary.

I’m proud of the quality of the work done by the officials in my Department. They work extraordinarily hard to enforce the laws Parliament has passed fairly and accurately. And the simple fact is they get things right far more often than they get them wrong. This is clear from the fact that the rate of reversal of our refugee decisions by the federal court is one percent – one percent. So it concerns me when I hear that more than half of the cases that come before the federal court are immigration or refugee related. It suggests to me that the integrity of the decisions made by the decision makers in my Department is being questioned too often without sufficient justification.

Let me give you one example, the case of Mr. Jovirathai Sittampalam. Mr. Sittampalam came to Canada in February of 1990, and was recognized as a refugee and landed in Canada in July 1992. Not long after arriving in Canada, Mr. Sittampalam began starring in his own private version of The Sopranos. His rap sheet included a conviction for drug trafficking, and he’s been investigated for crimes dating back to 1993, including murder, assault with a weapon, attempted murder, aggravated assault, extortion, and trafficking. He’s one of the people that we – we have a technical term in CIC, an RBG, a really bad guy. All of this is on top of the fact that the government had reason to believe Mr. Sittampalam was a member of a Tamil gang which was considered a public menace and a danger to the community – the broader community and his own cultural community in particular.

Not surprisingly, my Department sought and received a removal order against Mr. Sittampalam in 2004. Challenges to the federal court and the federal court of appeal of that decision were dismissed. A Minister’s delegate found Mr. Sittampalam to be a danger to the Canadian public and not to be a risk – excuse me, and not to be at risk if returned to Sri Lanka. A challenge to that decision upheld the danger finding, but required that the risk to him of return be reassessed. At the reassessment a different Minister’s delegate concluded once again that Mr. Sittampalam would not be at risk if returned to Sri Lanka. The Federal Court then ordered a reassessment of the second risk assessment. When it was – what – when it also was not to his liking, Mr. Sittampalam again challenged that third decision by a third Minister’s delegate. In all, Mr. Sittampalam sought review by the Federal Court and the Federal Court of Appeal on literally a dozen occasions, including challenging decisions to keep him in detention and decisions that he was a danger to the public.

Finally, Canadians caught a break when the Federal Court held, in response to one of the challenges to one of the danger opinions, that, quote, “It must be recognized that at some point in the system there has to be finality,” close quote. I heartily concur.

Now, Mr. Sittampalam, by the way, was finally deported in June of last year, six years after his slog through the courts began. The Sittampalam example is particularly disturbing because it calls into question our ability to deal with dangerous criminals, including gang members like Mr. Sittampalam.

Now, speaking of Mr. Sittampalam, and I would say he is illegal, it shows that even the best efforts to reform our immigration system are not sufficient if they are not supported by the courts. The passage of the Immigration and Refugee Protection Act in 2002 – this is the major new law that was adopted under the previous government – changed the focus of previous immigration legislation. The new focus was recognized by the Supreme Court in the case of Medovarski. In that case, the court explained that the objectives as expressed in the IRPA indicate – IRPA, Immigration and Refugee Protection Act – indicate an intent to prioritize security. This objective is given effect by preventing the entry of applicants with criminal records by removing applicants with such records from Canada and by emphasizing the obligation of permanent residents to behave lawfully while in Canada.

Given the Act’s clear policy intent, I agree with the Supreme Court’s admonition in Suresh v. Canada that courts should defer to the expertise of the decision makers who are best trained and positioned to judge a claimant’s bona fides. In that case, the court considered what standard of review should be adopted with respect to the Minister’s decision that a refugee constitutes a danger to the security of Canada. In answering that question, the Supreme Court instructed that, quote, “The reviewing court should adopt a deferential approach to this question and should set aside the Minister’s discretionary decision if it is patently unreasonable, in the sense that it was made arbitrarily or in bad faith. The court should not re-weigh the factors or interfere merely because it would have come to a different conclusion,” close quote.

The court went on to say that it is our view that a deferential standard of ministerial review will not prevent human rights issues from being fully addressed, provided proper procedural standards are in place, and provided that any decision to deport meets the constitutional requirements of the Charter. Those are wise and important words, words that I think clearly articulate the appropriate relationship between specialized decision makers on immigration and the judiciary.

Alas, sometimes the Supreme Court’s instructions are not always entirely heeded. Let me talk a little about the case of Laibar Singh. Laibar Singh arrived in Canada in 2003, and applied for refugee status, which was refused. He then sought leave from the federal court on two decisions: one denying his refugee claim; and the other denying one of his applications for permanent residence on humanitarian and compassionate grounds. He eventually left Canada voluntarily after almost six years here, but not before his unfortunate sojourn in Canada cost taxpayers at least half a million dollars in health care costs alone, according to media reports.

And after returning home, what reason did Mr. Singh give for seeking refugee status in Canada? Political beliefs? Religious discrimination? No, he told a TV reporter that he had chosen to seek refugee status in Canada because he was poor. Now, that, ladies and gentlemen, is unfortunate for Mr. Singh, as well as literally billions of people around the world, but it is not grounds to make an asylum claim under the United Nations Convention on Refugees. It is frankly insulting to the literally hundreds of thousands of people waiting in the queue to come to Canada, many as economic immigrants, because they want to enjoy Canada’s prosperity.

But it was obvious that Mr. Singh was not a legitimate refugee, so the decision to deny him refugee status was made quickly, and a federal court concluded there was no reason to review the decision. But even in easy cases like this, the removal process can be exploited – the removals process can be exploited by those who know our court – that our courts are sometimes too willing to indulge even the most creative claims. Mr. Singh took full advantage of that indulgence and remained in the country, delaying his removal for far too long.

Let me give you another example, the case of Joselito Ramos Ferrer. In his permanent residence application in September of 1998, Mr. Ferrer said he was single with no children. In fact, he was the father of two dependent children living in the Philippines. He withheld information about the existence of his children to Canadian immigration authorities to avoid delay and possible problems in obtaining his permanent resident visa. When his deception was exposed, he was issued a removal order. This order was reviewed by the IRB. The Board upheld the original decision to remove him, even after considering humanitarian and compassionate factors. But – listen to this – that decision was appealed to the federal court, which decided that the Immigration Appeal Division of the IRB, a specialized tribunal set up to consider precisely these issues, had failed to consider the best interest of Mr. Ferrer’s children when considering humanitarian and compassionate factors.

So the central fact here is that the court’s decision turned on two children who have never been to Canada, have no connection to Canada, no standing under Canadian immigration law, and about whose existence Mr. Ferrer lied when he originally came to Canada. And yet they were used as a rationale by a judge to further delay his removal. Is the court really suggesting that its fantasy of what life could be like for these children if they came to Canada should trump the otherwise appropriate removal of the father who deceived us? That can’t be allowed to happen. Now, unless I sound hard-hearted, if Mr. Ferrer had declared his children, there likely would have been no barrier to his immigration to Canada. But the problem was the fact that he frankly lied and violated our immigration laws.

Let me turn to decisions on stays of removal. Many people facing a removal file for a stay as a last-ditch attempt – they file for a stay as a last-ditch attempt to remain in Canada. Now, as you may know, the three-part test for a stay requires, for the granting of such an order, that the applicant demonstrate: first, that he has raised a serious issue to be tried; second, that he would suffer irreparable harm if no order were granted; and third, that the balance of convenience, considering total situation of both parties, favours the order.

I want to focus on the idea of irreparable harm and how that has been interpreted by the courts in ways that are sometimes hard to understand. Take, for example, the cases of Hasan v. The Minister of Citizenship and Immigration, and Mahadeo v. Canada. In Mahadeo, the court found that the applicants, two teenagers from Guyana, did not suffer irreparable harm by being forced to leave school before the end of the school year. The court was quite clear on this. Leaving school does not constitute irreparable harm, even if it might be inconvenient. Yet in Hasan, we find the court reaching the opposite conclusion. In this case involving a Bangladeshi woman and her two children who were denied the refugee status, the court held that removal from school before the completion of the school year does constitute irreparable harm.

Now, I realize there are nuances and complexities in these two cases. But given the decision by the Government of Canada that the persons in these cases must otherwise be removed, does not finishing the school year really constitute irreparable harm and should justify a stay? Is it inconvenient? Yes. Unfortunate? Perhaps. Irreparable harm? I don’t think so, and neither did the trained decision makers. Call me crazy, but I believe irreparable harm means something more substantial than having to repeat grade six. After all, Winston Churchill had to repeat grade six, and he did just fine.

Let me give you two examples of the practical problems of federal – of the federal court’s indulgence of various appeals and reviews. Allen Tehrankari was an Iranian refugee. In 1993 he was sentenced to 12 years in prison for bank robbery, kidnapping, and several firearms offences. He was released a few years later, and the government began its attempts to deport him back to Iran. Partially because of multiple appeals launched by Mr. Kari, the government was unable to remove him from Canada. In 2005 Mr. Tehrankari raped and killed his sister-in-law. He killed her by dousing her in gasoline and setting her on fire. While in Mr. Tehrankari’s case various levels of government also failed, problems like this are too frequently created by judges who indulge in intrusive and heavy-handed review of decision making by the designated quasi-judicial decision makers in our system.

Another problem is created when courts hand out criminal sentences with a view to thwarting Canada’s immigration system. I’m told that it’s well known in the legal community – I’ve had prosecutors and in fact immigration lawyers tell me this – that judges will often hand out sentences of two years less a day to avoid having the criminal become subject to speedy deportation. Under our law, if a foreign national is sentenced to six months or greater they are subject to removal, but if it’s two years or longer they cannot have access to the Immigration Appeal Division, which is one of the many steps in delay and appeal. And so frequently foreign criminals are sentenced to two years less a day specifically – I mean, not because that’s a sentencing decision so much as an effort to avoid the bar to – the bar to the Immigration Appeal Division.

My Department attempted for six years to deport an individual named Jackie Tran who, despite having a long criminal record as a gangster, drug dealer, major drug trafficker in fact, had never received a sentence of more than two years less a day. Another case is the case of Clinton Gayle, who received a sentence of two years less a day when he was convicted of multiple drug offences. Between 1990 and 1996 my Department tried to deport Mr. Gayle on multiple occasions. This process was made more difficult because of his relatively short criminal sentence. In 1996 Mr. Gayle shot and killed a Toronto police officer.

It is cases like these that frustrate Canadians, and understandably. We should not dismiss those frustrations. We should listen to them and take them seriously. Cases in which, seemingly on a whim, or perhaps in a fit of misguided magnanimity, a judge overturns the careful decisions of multiple levels of diligent, highly trained public servants, tribunals, and even other judges. I believe most Canadians share my concern about such decisions. And I fear that such decisions do serious harm to the overall immigration system and prevent it from doing more good for deserving immigrants. And they undermine public confidence in the government’s ability to enforce our laws as passed by Parliament, and therefore in the entire system.

That is why I believe it’s important to engage in a dialogue with the judiciary on these matters. We’ve made some necessary changes to the system, as I’ve mentioned, such as our Balanced Refugee Reform Legislation, and we’re looking to persuade Parliament to make more such changes. But we legislators are not an island, and we don’t act alone. We need the judiciary to understand the spirit of what we are trying to do. And I specifically want to avoid what was said at the stay hearing for Mr. Sittampalam at the federal court.

Let me quote directly what was said, because I think the court’s words are tremendously important in making the point I’m trying to get across here. The ruling stated, quotes, “The court must obtain open and ready access, especially in serious cases such as applications to stay deportation orders. However, that important purpose must not be debased by repetitious applications involving forum shopping and judge shopping. This application is an abuse of the process. It should not have been brought. The application is dismissed,” close quote. I couldn’t have said it better myself. So may the dialogue continue.

Thank you very much.

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