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Immigration law needs lighter touch

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Immigration Minister Jason Kenney has recently stoked national debate about the rescinding of citizenship for thousands of immigrants who only fleetingly lived in this country. Many Canadians could support such a move.

But a story out of Regina should give us pause to think about drastic action taken against foreign nationals who run afoul of immigration law by what, comparatively, seems a less offensive infraction.

Two foreign students face possible deportation for illegally working in Canada. While it appears that these students did work in Canada illegally, does Canada need to come down so hard on them?

Their offence -- working two weeks at a big box store without authorization -- is hardly the stuff of Bonnie & Clyde. There has got to be a better the solution.

According to news reports, these two students got Social Insurance Numbers (which most foreign students are entitled to get) and mistakenly thought that this allowed them to work wherever they wanted. Under the law, they were only allowed to work on campus -- which they did the year before.

After starting at the big box store, one of the students claimed that she realized that she was working illegally and quit after two weeks. The second student claimed that she did not realize that she was working illegally until she was led away from the store in handcuffs by the Canada Border Services Agency.

Handcuffs? For working illegally as a cashier for two weeks? This seems extreme.

Because of the prospect of deportation, the two students sought sanctuary at a church. As well, officials at the university they attended wrote to Kenney to ask that he grant them a reprieve. According to reports, the minister's office replied that he "does not have the authority to stay removal orders under the Immigration and Refugee Protection Act."

Should Canada enforce its immigration laws? Absolutely.

Should Canada allow persons to work illegally in Canada? Absolutely not.

Should Canada remove these two from Canada? No.

First, it should be said that ignorance of the law is no excuse. If these students were issued the standard type of immigration study permits, they would have seen that these documents clearly indicate that their ability to work in Canada is restricted. It seems clear there is no dispute that what they did was illegal under immigration laws. So, there should be no dispute that they should be punished.

Still, the question is: why is the penalty so harsh?

Even if there is more to this story than what has been reported, one of the biggest problems in immigration law is that there is really only one enforcement mechanism -- removal from Canada. Sure, there are provisions in the law that allow for fines to be issued. However, the threat of deportation sometimes seems to be the only tool used.

The answer is to make minor immigration violations "ticketable" offences. In other words, instead of using the nuclear option -- deportation -- for every violation of immigration law, immigration enforcement officers should have an expanded ability to issue tickets.

They can do that now, but CBSA chooses to prosecute cases.

Tickets could carry stiff fines to send the message that Canada does not tolerate illegal behaviour. And it should carry the hammer that it is a person's first and last warning, that re-offending would trigger consideration of deportation.

If these two students had faced a ticket, there would be no story. Then the resources put into enforcement could have been dedicated to chasing the big offenders -- human traffickers, foreign criminals, persons accused of war crimes, and the 3,000-plus individuals who Kenney says obtained Canadian citizenship by lying. Offences carried out by these types of individuals should not be penalized by a mere ticket.

Is it really the best use of our tax dollars to chase after two foreign students who worked illegally for two weeks? No.

It would be better to create a system that gives minor offenders a stern lesson as to what is expected of them. If this happens, immigration enforcement officers could then put their efforts in chasing down the big offenders.

R. Reis Pagtakhan is an immigration lawyer with Aikins Law in Winnipeg.

Republished from the Winnipeg Free Press print edition September 24, 2012 A10

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