Bill C-12 — Strengthening Canada’s Immigration System and Borders Act

Via email: CIMM@parl.gc.ca

The Honourable Julie Dzerowicz, M.P.
Chair, Standing Committee on Citizenship and Immigration
House of Commons
Ottawa, ON K1A 0A6

Dear Ms. Dzerowicz:

Re: Bill C-12 – Strengthening Canada’s Immigration System and Borders Act

We are writing on behalf of the Canadian Bar Association’s Immigration Law Section (the CBA Section) in relation to Bill C-12, An Act to amend the Immigration and Refugee Protection Act and related laws. The CBA is a national association of over 40,000 lawyers, academics, notaries, and students, with a mandate to seek improvements in the law and the administration of justice. The CBA Immigration Law Section comprises over 1,200 lawyers practicing in immigration and refugee law across Canada.

Bill C-12 introduces sweeping changes to Canada's immigration framework to strengthen border security and increase ministerial flexibility. While we recognize the government's objective of efficiency and responsiveness, we are concerned that the Bill undermines principles of accountability, transparency, and fairness that are foundational to Canada's immigration system.

We offer the following observations and recommendations.

Accountability and Transparency

The rule of law is a fundamental principle of our justice system, which guarantees that the law is discernible to the public and is adopted and used in a transparent and non-arbitrary manner. Introducing Bill C-12 as an omnibus package has limited stakeholder and parliamentary review, hindering transparent governance.

We are also concerned that vague and non-specific language, such as "where it is in the public interest" (Bill s.72), with significant content deferred to regulations and no assurance of regulatory review or further parliamentary study. For example, we welcome the introduction of Designated Representatives (“DRs”) for non-IRB matters (Bill s. 31). Still, we are concerned about the lack of transparency in leaving the entire scheme to be defined by regulations. It is paramount that government accountability be carefully monitored, given that DRs are entrusted with immense decision-making authority over the most vulnerable. Similarly, in respect of refugee eligibility, the question of which "documents and information specified by the Minister” (Bill s.43(5)) are required before a claim can be referred should not be left to  speculation.

Expansion of Ministerial Powers

Bill C-12 grants the Minister significant new powers to cancel categories of visas and applications, including by Order in Council, without notice to the public. The Bill contains no statutory limitations on these powers. This poses a risk of function creep and allows for potentially arbitrary or discriminatory application of the law without recourse or review. 

Careful consideration must be given to how this re-balancing of state powers will impact Canada's stated goal of attracting top global talent. A regime that endorses the arbitrary cancellation of visas and applications risks diminishing Canada's reputation for fairness and predictability, tarnishing the Canadian "brand".

Protection of Vulnerable Claimants

We acknowledge the refugee system’s current challenges, including the significant increase in refugee claims and inventory at the Immigration and Refugee Board. The Bill's proposed amendments, including the one-year rule and categorical denial of IRB access for border crossers, are a significant over-correction that fails to protect the most vulnerable and will only redistribute the inventory from the IRB to alternate decision-makers without any substantive improvements.

The one-year ineligibility rule appears arbitrary and without legal justification. Decades of jurisprudence have emphasized the need for individualized assessments in refugee determinations and established that delay in advancing a claim should not, in itself, unequivocally undermine one's ability to receive a Charter-mandated hearing. What makes the proposed rule particularly draconian is that the one-year period begins from the date of first entry, not most recent (Bill s.73(1)(2))– precluding individuals who came as minors (on vacation with parents, for example) but later returned in genuine fear for their lives. The rule is not responsive to the changing nature of country conditions, the often evolving understanding of sexual orientation and gender identity, or the impact of severe trauma – all of which impact the timing of genuine claims. The rule is a blunt instrument that stands to arbitrarily penalize genuine claimants without reasonable justification.

The one-year bar would redistribute the determination of these claims to IRCC through the pre-removal risk assessment process, which is not an adequate substitute. As currently drafted, these individuals will not receive hearings, which are essential for vulnerable claimants to present their evidence. The delegation to regulation leaves it unclear whether DRs will be appointed; note, however, that this is an essential procedural fairness safeguard, as is an independent oversight body for DRs.

The proposed categorical denial of access to the claims process for border crossers from the United States also raises significant concerns in light of the current political situation and the unwillingness of the U.S. asylum system to offer a haven to many legitimately fleeing for their lives.

Downstream Effects on the Administration of Justice

The changes proposed by the Bill will have significant downstream implications for the administration of justice. Firstly, by referring one-year delay cases to the PRRA scheme rather than the RPD, the legislation will divert a significant portion of the RPD inventory over to the immigration department itself, resulting in longer internal backlogs. Secondly, it is notable that negative PRRA decisions are a significant source of litigation in the Federal Court and often necessitate both an underlying judicial review application and motions for a stay of removal - which command at least twice the judicial resources.

Bill C-12 is also highly likely to prompt significant constitutional litigation and class actions, particularly in respect of limitations on access to refugee protection and expanded powers to cancel or suspend visas and applications.

Recommendations

We recommend that Bill C-12 be withdrawn and, if reintroduced, that Parliament:

1. Eliminate the omnibus approach
2. Mandate that provisions delegated to regulations are subject to parliamentary study
3. Eliminate components that remove necessary safeguards for fairness and due process:
   1. Proposed amendments to the Safe Third Country Agreement
   2. “One-year rule” for refugee eligibility
   3. Category-wide cancellations
4. Reinstitute pre-publication, regulatory impact studies to enable meaningful stakeholder engagement and parliamentary debate;
5. Provide clear definitions and specific parameters for key terms, including those related to "public interest" mandates; and
6. Create an independent oversight body for DRs or entrust it to the IRB based on their expertise.

We thank the Committee for its consideration of these submissions.

Yours truly

(original letter signed by Noel Corriveau for Jatin Shory)

Jatin Shory
Chair, Immigration Law Section