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CBA says Bill C-31 raises serious concern about excessive ministerial discretion


OTTAWA – The Canadian Bar Association (CBA) has serious concerns with Bill C-31, Protecting Canada’s Immigration Act, calling it overbroad and suggesting it will likely result in unintended consequences for refugees, as well as other bone fide immigrants and temporary residents in genuine need of protection.

“We laud the objective of the legislation to deter fraudulent claims,” says Mario Bellissimo, member of the Executive of the CBA’s National Immigration Law Section. “Unfortunately, what is proposed will profoundly alter the landscape for refugee protection by limiting rights and privileges and impeding access to the appeal process for legitimate immigrants and refugees.”

Specifically, the CBA opposes the broadening of Ministerial discretion to designate countries and irregular arrivals, (e.g. those arriving without papers or under unusual circumstances), and taking away Parliamentary oversight and access to an appeal process. “Bill C-31 has removed the objective criteria introduced in the previous draft legislation with respect to designation of countries whose nationals are subject to expedited claims processing and loss of appeal rights. The proposed legislation lacks clear qualitative thresholds and raises serious concern about excessive ministerial discretion,” says Joshua Sohn, Chair of the National Immigration Law Section.

“Given the serious legal consequences that flow from a designation made by the Minister, these amendments are overbroad and unsustainable,” adds Joshua Sohn.

The CBA considers the penalty scheme in Bill C-31 to be overly harsh. The denial of detention reviews breaches international agreements as well as s.9 and s.10 protections contained in the Canadian Charter of Rights and Freedoms against arbitrary detention and the right to prompt review of detention.

The CBA also objects to the government’s reversal on key recommendations contained in Bill C-11 and C-4, predecessors to the current legislation. “Given the breadth and scope of the changes, the CBA recommends that implementation be delayed to allow for immediate and meaningful consultation with all stakeholders,” notes Mario Bellissimo.

The CBA notes the proposed legislation severely undermines or eliminates fundamental rights and privileges of some claimants, including the ability to apply for and retain permanent resident status in a timely manner. As well, the biometrics initiatives proposed in Bill C-31 raise serious privacy concerns that require further study.

“We recommend that the Bill either be withdrawn or referred to committee for further study and consultation,” concludes Mario Bellissimo. The CBA’s National Immigration Law Section will further study and analyze the proposed legislation in the coming weeks and looks forward to making a formal presentation of its views to committee.

The CBA is dedicated to improvement in the law, the administration of justice, and support for the rule of law. Some 37,000 lawyers, law teachers, and law students from across Canada are members.

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