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Change without Notice: Ministerial Instructions used to Bypass Public Debate?

At the end of December, Citizenship and Immigration Canada issued a number of “Ministerial Instructions” that changed employer compliance rules for companies that employ temporary foreign workers.  Ministerial Instructions have the force of law and regulate Canada’s immigration system.  The big question is whether Ministerial Instructions should be used by the government to change immigration laws.

Under the Immigration and Refugee Protection Act, the Minister of Citizenship and Immigration Canada can issue Ministerial Instructions.  In the case of the December Ministerial Instructions, rules were put into place that would allow for the government to revoke Labour Market Opinions, or LMOs, in certain circumstances, as well as work permits in other circumstances.

 The problem with Ministerial Instructions is that the Minister of Citizenship and Immigration Canada does not have to give any advance notice as to when these will issued.   If the Minister of Citizenship and Immigration Canada wants to change immigration rules by changing the Immigration and Refugee Protection Act  or the Immigration and Refugee Protection Regulations, advanced notice must be given. Ministerial Instructions, by comparison, can be issued with no debate and feedback prior to coming into place. Given the large scope of the latest round of these Ministerial Instructions, is this the right way to go?

 Is the Minister of Citizenship and Immigration Canada using Ministerial Instructions to avoid public debate and comment? When any law is changed in Parliament, it must be debated. Opposition MPs get an opportunity to speak and public hearings are held at House of Commons Standing Committees and Senate Committees. This process allows witnesses (typically members of the public) as well as MPs to comment on proposed changes. In addition, the proposed changes in the law are set out in writing and opposition MPs, government MPs, and the public can see the exact wording of the proposed changes before commenting on it. In many cases, amendments can be made before the law becomes final.

 If changes are made to regulations, the process is not as thorough.  However, the Federal Government still must pre-publish draft regulations for the public to see and usually gives the public an ability to comment on them anywhere between 15-90 days.  The public comment process is one where individuals and organizations can make written submissions and, when final regulations are put out, the department sending out the draft regulations must make some commentary on the submissions they received. 

The big problem with Ministerial instructions is there is no ability for individuals to react to the wording of new rules until they come into place.  As a result, if errors are made, there is no ability to correct them in advance. In some cases, larger changes are made that can change the Government’s proposed policy. The Government is not fallible and can do things wrong despite their best intentions.

Since 2008, the Government has used have been used to change and reformat immigration programs a number of times. For the last set of Ministerial Instructions, these changes could have been done by way of regulation to give the public the ability to provide comments.

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About Reis Pagtakhan

Reis Pagtakhan is an immigration law partner with MLT Aikins LLP. His extensive experience includes assisting businesses obtain temporary entry to Canada and permanent residency for their executives, employees and contractors from all over the world. Reis has lectured on and written papers on immigration law for the Law Society of Manitoba, the Manitoba Bar Association, the Human Resources Management Association of Manitoba, the Canadian Corporate Counsel Association, and the Community Legal Education Association of Manitoba. He has presented position papers before the Minister of Citizenship and Immigration, Immigration Department officials and Manitoba Labour and Immigration. He has written articles on immigration for the CBC, the Winnipeg Free Press, trade, industry and ethnic publications.

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