May 31, 2004 — Le Protecteur du citoyen

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Bill 53

An Act to amend the Act respecting immigration to Québec

Comments by
Ms. Pauline Champoux-Lesage
Protectrice du citoyen

May 2004

Foreword

On May 13, 2004, the Minister of Relations with the Citizens and Immigration, Ms. Michelle Courchesne, introduced Bill 53 which is instituting new provisions to the Act respecting immigration to Québec in order to facilitate its administration.

The main objectives of the bill are:

to ensure diversity in the sociocultural fabric of Québec;
to reinforce provisions relating to the use of false documents; and
to provide the government with regulatory powers to enable the recognition of immigration consultants as well as to supervise their activities.

Consequently, a week later on May 20, 2004, the Minister released her 2004-2007 Action Plan in which she outlined the guidelines used by the government in choosing measures to be implemented¹, including, among others:

respect for human equality;
equity and integrity in processing applications, which reflects a commitment to reconciling immigration policy objectives with maintaining a diversification of immigration movements.

It is based on these values, which I fully support, that I have analysed this bill and, while I agree with the proposed amendments on the whole, some measures need to be elaborated, in my opinion. Consequently, you will find herein comments, which I hope will lead to further analysis of the issue.

1 Diversity in the sociocultural fabric of Québec

Québec has sole jurisdiction regarding its “economic” immigration selection, i.e. in the choice of independent applicants including skilled workers, self-employed workers, entrepreneurs and investors. Under the current law, Québec takes into account planned immigration levels determined by the federal government for the entire country when establishing its own planned immigration levels according to its immigration capacity. The category-based selection is carried out in accordance with its labour needs. The bill maintains this category-based selection but includes a territory-based selection as well.

1.1 Concept of source area (sections 4 and 5)

By introducing the concept of source area, the bill is adopting a quota system per territory. I understand that by adopting a double quota system based on categories and territories, the government’s objective is to focus immigration planning efforts on Québec’s economic needs, while looking for a balanced cultural diversity. However, the new territory-based quota system does not meet with overwhelming support and some view it as a form of discrimination based on immigrants’ origin or nationality.

That said, I challenge the definition of source area as worded in the bill, which reads as follows:

“A source area may comprise a country, a group of countries with common linguistic, cultural and economic characteristics or a continent or part of a continent.”

Must we specify “linguistic, cultural or economic characteristics”? Couldn’t such specificity, namely one that is cultural, be interpreted as a means to target or eliminate certain groups? In fact, what is culture? Are we referring to values, beliefs, lifestyles or traditions? On the other hand, wouldn’t an area described as “a country, continent or a part of a continent” be enough to anticipate all possibilities?

1.2 Suspending the receipt of applications (sections 12 and 17)

The bill makes provision for the possibility of suspending the receipt of applications for selection certificates for a maximum period of one year. The suspension may be renewed for a maximum period of one year as well. However, the bill fails to mention how many times a suspension can be renewed.

This new provision grants the Minister a discretionary power which would lead to the temporary withdrawal of a privilege in the case of some categories of immigrants. Nevertheless, even if the provision relates to a privilege instead of a right, I believe that it is essential to specify the terms and conditions governing such a provision. It is a matter of transparency, equity and integrity in the processing of applications. In this regard, the bill is flawed and in my opinion, should be amended.

In fact, several aspects of the above-mentioned suspension must be specified. What motives would justify a moratorium? Would a suspension be applicable if quotas were not reached? Would the populations affected be given prior notice? All these issues need to be addressed, which the new regulation does not seem to do.

Furthermore, the bill provides that this suspension could be applied retroactively in the following two cases:

A retroactive suspension may apply each time the government approves to suspend the receipt of applications. The bill then states that any applications not yet processed upon the date of suspension are to become null and void (sect. 12, paragraph 5).
A retroactive suspension applies to applications for selection certificates received before this bill is enacted (sect. 17).

Retroactivity is an exceptional provision, which is rather similar to a breach of contract or a broken promise. In this sense, it compromises the credibility of the State and is inconsistent with values of equity and integrity.

While I acknowledge that the National Assembly can certainly adopt an act which has a retroactive effect, I must express strong reservations when a government wants to make it a rule of law, to be acknowledged in the Act and applicable for the future. Does the diversity of Québec’s sociocultural fabric require such measures?

As for the retroactive suspension of applications already received, its objective is often to regulate an unexpected situation or a situation that is beyond control. It seems to me that, in the spirit of human equality, one should make every effort to avoid such a measure, or at the very least, limit its scope.

2 Sanctions applied regarding false documents (section 8)

Section 8 of the bill grants the Minister the discretionary authority to reject any application containing “any false or misleading information or document”. I fully support this measure that strengthens the current provisions. However, in my opinion, there are terms and conditions that should be specified in this case as well. Who decides whether the information is false or misleading? Is the applicant informed of the grounds on which his application was refused? Is the applicant given an opportunity to explain the situation? Can the decision be reviewed? If yes, by whom?

Even if the rules of procedural equity in the Act respecting administrative justice² apply, shouldn’t there be guidelines governing this discretionary power?

3 Regulatory powers (section 11)

3.1 Recognition and supervision of consultants

Considering the “vagueness” surrounding the status of immigration consultants, as well as their increasingly active presence in some parts of the world, I am pleased with the government’s initiative to invest itself with regulatory powers in order to oversee this profession.

Still, I wonder about the implications of some of these powers, especially the role that the Minister plays in determining violations and imposing sanctions. I would hope that the future regulation would allow her to stand independently, thereby eliminating any apparent bias. Nemo judex in causa sua.

3.2 Waiving of publication regulations

The Regulations Act³ states that any draft regulation should be published in the Gazette officielle du Québec, unless it is an emergency or if it relates to taxations measures. Yet, this bill states that some regulatory provisions will not be published before they are adopted (section 11 in fine). The provisions being waived focus on immigrant categories, applications for selection certificates, selection criteria and exemptions, which are all key elements of the Act that were surely well thought out before being implemented. That is why I must wonder about the emergency factor. Is this waiver really necessary? Shouldn’t transparency take precedence? In cases of emergency, wouldn’t it be simpler to refer to the Regulations Act?

Conclusion

The bill presented by the Minister of Relations with the Citizens and Immigration proposes major amendments to the current Act by adding new provisions to reflect current trends in immigration supply and demand.

Thus, the considerable increase in applications from some parts of the world have led to a legal “adjustment” in order to better manage immigration movements and adapt them to suit the needs of Québec.

While I approve of these amendments, I would however wish that new rules be introduced in a fully transparent manner and that specifications be established as a result.

Notes

Shared Values, Common Interest, 2004-2007 Action Plan, pg. 8. [back to text]
R.S.Q., Chap. J-3, Sections 4 and 5.[back to text]
R.S.Q., Chap. R-18.1, Sections 8 and 12. [back to text]

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