April 6, 2015

Ontario’s Proposed New Immigration Act in Need of Serious Changes!

The proposed Ontario Immigration Act, 2014, currently at the second reading, should read as Ontario’s Enforcement Act and is in need of serious second thought.  The legislation continues a concerning trend at the Federal level where new legislation crystallizes enforcement measures and leaves immigration program details to subordinate regulations and manuals.  In Ontario’s case, it is difficult to learn much about the specifics of the immigration programs on a read of the proposed law.  So how does it breakdown so far in my opinion?

Positives

• Ontario embarking upon an Immigration Act is a positive. Citizenship and Immigration Canada have identified three sources for potential permanent residency selection including (1) the government, (2) the provinces and territories, and (3) employers.  In the new system, all three sources are anticipated to actively target highly skilled immigrants for permanent residency. Ontario should be implementing legislation to assist in that regard.
• The preamble recognizes the important role immigrants play in the economy but also the importance of family and humanitarian commitments.
• The goals consist of collaboration with all partners, including municipalities and employers, which are positives and could lead to a more holistic focus on immigration settlement and integration.
• As employers are identified as a key resource, establishing an employer registry if implemented effectively is proactive and a sound initiative.
• It seeks to set up a registry for recruiters which may be a positive depending upon implementation to ensure a system is in place.

Negatives/Concerns

• The use and sharing of information is very broad and undefined in certain sections. It allows the Minister to disclose information to the Federal and any provincial/territorial governments respectively, as well as to any other prescribed entity about employers that appear in a purported employer registry (s.5(6)).  The same would hold true for recruiters (s.6(6)).  At section 20, a listing of the potential wide-spread use of personal information collected through permanent and temporary resident provincial immigration applications, including with law enforcement agencies, is detailed.
• Broad powers granted to directors including the ability to refuse applicants that meet the criteria, immunization from the Statutory Powers Procedures Act, the ability to impose and publicize two year bans without a hearing, and the ability for applicants to only seek an internal review (ss. 15-19) are concerning provisions as defined jurisdiction, public and judicial oversight that are essential to a healthy program.
• Concerns with the Inspections, Investigations and Enforcement part of the proposed legislation are numerous.  The creation of inspectors and investigators under the Act, equipped with broad powers, are only required to complete an undefined course of training by the Director, which is too vague.  Given the wide ranging powers, more specifics are required and it is unclear why peace officers could not perform these functions?  (s.21)
• Inspections without warrants including in representatives’ offices (read lawyers’ offices) (s.22), and absolute liability offences (s.25) with potential penal consequences and fines up to $250,000.00 (s.31), are the most concerning provisions in the legislation and raise potential constitutional considerations.

Final Thoughts – Hope this Act is just a Draft

As stated, Ontario pursuing immigration legislation is a positive and the integrity of any system is critical.  However the rule of law, fundamental rights and values, as well as judicial oversight, cannot be sacrificed or limited and perceived as any less important. Applicants and stakeholders (including employers, representatives and recruiters) are engaging in a voluntary administrative process before applicants obtain immigrant status in Ontario. As I have written previously, we must strive to fashion our immigration law in a manner that preserves our international reputation as a country of invitation, fairness and openness. At the same time, a country that is responsive but promotes an economic, social and cultural nation building on a solid, fair and consistent legal foundation.  This proposed Act is in serious need of serious revisions.