Citizenship and Immigration Committee on May 11th, 2010

[Geraldine Sadoway]

Thank you.

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

We'll now move to Mr. Michael Greene, who is in Calgary—hence the sweater. Go ahead.

[Michael Greene]

Hence the sweater. Yes, I'm in Calgary. I'm conscious of the fact that there are probably some westerners out there, people who'd like to cheer the Canucks tonight, so we'll try not to drag it out.

My name is Michael Greene. I'm a practising immigration lawyer in Calgary. I have been practising law since 1984 and immigration law since 1987. I work in a firm where we practise only immigration law. I do not, in fact, do refugee cases any longer--there are other lawyers in my firm who do them--but I've been working with this system since it started in 1989, so I'm reasonably familiar with how it works now.

I've been active in the Canadian Bar Association for 20 years. I am a former national chair. I was the national chair at the time we were developing IRPA, so I know a little bit about the legislative process and how that works. And I've appeared before this committee and other committees numerous times.

I've been invited to express my opinions as an individual, and that's what I'll do. I'm not representing any organization, although I do share concerns with many other groups and organizations and individuals who are speaking before you.

I have concerns about the way the system has been working. I think it undermines public confidence in our overall immigration and refugee laws and processes. It's fraught with delays. The slow process attracts non-genuine claimants, who can sometimes extend their stays for years, as we all know. And for people who do have legitimate claims, often the woes they've suffered in their lives are compounded by the extended time the process takes.

The high influx of claims from some countries, especially when their cases are seen as being less compelling than others, results in visa imposition. In fact, that happens all the time when there is a high influx. That makes it difficult for countries, as we saw with Mexico. It's difficult for the European community. There are definitely problems that arise when we use the visa method to try to control the refugee determination process.

With all these concerns, steps to speed up the process are certainly very welcome. I think most Canadians sympathize with the minister's stated intention of streamlining the system or making it so that we can recognize genuine refugees and actually deter people who have actually no basis for making a claim.

Having said that, I have a lot of concerns about the solutions being proposed. First, I'd like to review the fact that many of the things that can be done to speed up the process are non-legislative solutions. Some have been proposed in conjunction with the current bill, and others could be added. The limited resources at both CIC and the CBSA are the cause of much of the delay in the system. The CIC is stretched to the max. They can't get to their H and C claims, and they can't get to their PRRA decisions. The result is that often there is an 18-month or longer delay before they even initiate a PRRA. Then there is quite an extensive delay in deciding it. It's not because it takes a long time to process an application; it's because it sits in a queue.

It's the same thing with removal. I'm quite close with some of the people here who are in removals. I've developed friendships over the years. And I know they feel very stressed because they have to set priorities and aren't able to get around to doing the different things they should be doing. Sometimes these removal cases languish for months, if not years, because of criminals or greater priorities or whatever. So putting more resources into the system, which the minister has proposed, is a darned good idea. It doesn't require a change in the law.

The other thing is that our board can work more efficiently. We saw during the chairmanship of Jean-Guy Fleury that he had processing times on refugee claims down to six months. That was because of a very concerted effort and the use of new procedures. But also, everybody buckled down and worked really hard. The system worked really well. Unfortunately, reappointments were not made, and new appointments were not made to fill those spots. Things got a little out of control at the same time as there was quite a high volume coming in.

Much of the delay could be eliminated just by attending to properly making sure that we've resourced our board and have resourced the agencies that deal with the situation.

One of the things I didn't say is that I teach the immigration law course at the Faculty of Law here in Calgary. We talk about processes a lot and how they work. We talk about safeguards and due process and where it exists and where it doesn't.

In terms of what's proposed, I would just like to comment that this proposed two-step determination process is very welcome. It's been called for, for a long time. There really isn't a good backstop now in the case of a bad decision, and we get bad decisions. Humans make mistakes. Sometimes people have poor representation. Different things happen. The two-step system will, I think, greatly improve the quality of decision-making.

I would like to endorse the proposals of the Barreau du Québec with respect to political and non-political appointments. I think that's been a chronic weakness since this board started in 1989. We've had some bad appointments, and that makes for bad decisions. There's no need for it; we could improve the quality.

The two-stage process I think would justify restrictions on the PRRA, which has been a very unsatisfactory appeal process. With a success rate of around 2%, it's a colossal waste of money. The money would be much better spent on the RAD, where you have a more effective appeal process. I think if we have the two-step process we can justify cutting back on access to the PRRA. I don't see the justification for cutting access to the humanitarian and compassionate, and I'll talk about that later.

The idea of mandated processing times in the legislation is attractive, in that regardless of who the government is, if they keep to the mandated times they'll adequately resource the board. The problem is--and this is where I get into some of my serious concerns about the legislation--the proposed mandated times are just not workable. The eight days and the 60 days...you can't function in that environment. For instance, it takes so long to get legal aid to appoint counsel right now that you can use up most of that time before you've even met your client.

This would be unthinkable--absolutely unacceptable--in the civil law and criminal law contexts for the government to mandate that your civil lawsuit must be heard within 60 days. But we're proposing doing it for people whose very lives are at stake, where they're facing torture, persecution, and possibly even death. While the idea of mandated times is attractive, the proposed times need some work. I don't think it works. Every lawyer I've talked to in this field says that's not workable. Even my partner, who's a very senior lawyer in this area, says he doesn't think he'd want to practise in that area because he doesn't think it would be true justice.

There are concerns as well about the minister's list. Again, I think it's been expressed by many groups, and I won't rehash it too much: the danger is of politicization in the process.

We have a current minister who is well-intentioned, and I remember when we brought in IRPA that we had a well-intentioned minister. There were a couple of provisions, namely denying the right of appeal to persons with criminal convictions, and the minister said, don't worry, I will use my discretion to make sure that good decisions are made to let those people stay in deserving cases. Well, she didn't stay as minister too long, and we've seen a succession of ministers where there really hasn't been that discretion exercised.

I don't like the broad powers given to ministers, and I think there should be some criteria if we're going to have a list at all. As well, I think there has to be a real look at the consequences. I would be much more supportive of the consequences of being from a listed country be that you have a hyper-expedited process, that your claim is dealt with really quickly. That would deter non-genuine claimants from coming if they knew they were going to be out of here pretty fast, that they couldn't languish in the system and milk it for all it's worth.

I'm very much opposed to the denial of access to the fail-safes, to the backstops that exist in the appeal process and the humanitarian process. The humanitarian and compassionate grounds--and this doesn't come from me originally--are the grease that makes the system work. Often we have arbitrary or hard and fixed rules to fit into a category, and it's the humanitarian grounds that catch the people who have compelling reasons to be here but don't quite fit within one of the narrow confines of the accepted classes. It's been a major feature of our system, for as long as I know--and I think for a lot longer than I know--and I teach immigration history. I would hate to see it eroded away here. I think it's a fundamental part of our system.

It's tempting to--

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

Thank you very much, Mr. Greene.

You're going to get a chance to expand on your points during a question and answer session.

It's a seven-minute round, and we will begin with a former minister, Mr. Coderre.

[Denis Coderre, Liberal, Bourassa, QC]

Thank you very much.

I'm going to start by asking a very brief question. I know it's sometimes difficult not to answer with a yes or a no, but you'll see where I'm heading.

My question is for Ms. Dagenais and Ms. Houle. In its present form, do you get the impression that this bill would not pass the test of the courts with regard to the Canadian Charter of Rights and Freedoms? Yes or no?

[France Houle]

There are major problems concerning section 7 and the protection of fundamental justice. There are clearly problems in that regard. Would it pass the test of the courts or not? That's another question. That said, some problems can definitely be raised.

Now this system will often be compared with the one in Australia, for example. However, it should not be forgotten that there is no Canadian Charter of Rights and Freedoms in Australia. That's a big difference.

[Denis Coderre, Liberal, Bourassa, QC]

Mr. Greene, do you believe that in its actual form this bill would pass the test of the court?

[Michael Greene]

Sir, I add my concerns to those of the Bar Association. I've read their brief. They have great concerns that at the very least it would result in a great deal of litigation. I think if you look at the Singh decision, which resulted in the creation of our existing system, there's a real concern here that this wouldn't pass the tests that were in the Singh decision. It would either fall to the charter or the Bill of Rights.

[Denis Coderre, Liberal, Bourassa, QC]

Ms. Sadoway.

[Geraldine Sadoway]

I agree. I think there will be charter challenges coming out of our ears.

[Denis Coderre, Liberal, Bourassa, QC]

We've negotiated a safe third country agreement in the context of a process under the aegis of the United Nations. Now we're talking about designated countries, which is something else entirely. Don't you get the impression that talking about designated countries now removes the very value of the immigration and refugee system, in the sense that every case is specific?

I'm speaking to Ms. Houle and Ms. Dagenais.

[Catherine Dagenais]

We're now talking about the country of origin designation rather than the safe countries of origin. That's one indication and it allows a lot of discretion. The wording as such had to be reformed.

[Denis Coderre, Liberal, Bourassa, QC]

Personally, I'm totally opposed to the countries of origin idea. Saying at the outset that everything's fine in such and such a country, when we know perfectly well that, as every case is specific, there are realities of sexual violence or violence against homosexuals in certain countries... There are a host of examples like that. That's why it's important that every case be specific.

[France Houle]

That's the problem, in fact.

By countries of origin, we're not specifically stating exactly what we're talking about. In itself, the act poses arbitrary problems. In addition, the criteria will be set by regulation, whereas, in the past 20 years, it has been a legislative policy, particularly in the federal government, that criteria stripping people of rights are set out in the act not in regulations.

Furthermore, I just want to take two seconds to say that, as a result of the process of shaping regulations in Canadian law, a little consultation is now possible, particularly under the Cabinet Directive on Streamlining Regulation. However, from the moment there is an amendment to regulations, consultation becomes less and less important.

So, ultimately, the government could make nice regulations in order to please everyone at the outset and, little by little, remove important elements from those regulations. That poses a problem. Simply with regard to legislative policy, the criteria should be in the act; and the process in the regulations.

[Denis Coderre, Liberal, Bourassa, QC]

I entirely agree with you.

Let's talk a little about administrative justice. In your view, there was previously no system. When board members were appointed, there were examinations. It was open to everyone. A list was prepared based on those who passed the exam, and there was a Governor in Council appointment. Do you think we should go much further than that?

[France Houle]

[Inaudible—Editor] the act, now. That's purely administrative. So the government can change that, as it wishes, from one day to the next. Moreover, that's what we've seen, from the switch from Mr. Fleury to the current chair of the IRB, whose name I don't remember.

[Denis Coderre, Liberal, Bourassa, QC]

However, you're in favour of there being, for example, officials at the first level, like super officers who would have this training, and of the Immigration and Refugee Board being the second level, which would be the appeal level. You're in favour of that.

[France Houle]

What I understand is that officials are part of the board, which is the first level within the board. Then there's an appeal, again within the board.

However, the processes of appointing officials to the first level and to the Appeal Division are different. The officials are appointed under the Public Service Employment Act and the members of the Appeal Division are appointed by Cabinet. So the procedure I was proposing earlier would apply to the Appeal Division. As for the officials, they are appointed under the Public Service Employment Act.

[Denis Coderre, Liberal, Bourassa, QC]

I think there's as problem. Professor Peter Showler, former chair of the Immigration and Refugee Board of Canada, has extensively studied this question and he may be right about it.

Don't you think a hybrid or single model would be needed as a result of the importance of this kind of oversight? Perhaps it should be separate, but subject to the act. What would be needed is an appointment process, with public notice, but one that would really be separate. If we went through the Public Service Commission, that would not necessarily guarantee, in all respects, that these individuals would necessarily be the best.

[France Houle]

In structural terms, you can train a somewhat bizarre creature. To my knowledge, apart from the Immigration Division, there are not a lot of models like this one. We appoint officials who we say are independent and impartial, but they are nevertheless public servants. They are therefore nevertheless part of the bureaucratic machinery, since they are appointed and are there to serve the government. That's what it means to be a public servant. So there's a problem in that regard. The status of these people isn't clear. That works at the Immigration Division, to the extent that most of these officials work on detention issues. The connection between the government and detention is important. When it comes to refugees, a significant problem arises because the entire question of justice and equity arises in strong terms under the Singh decision.

[The Vice-Chair, Liberal, Maurizio Bevilacqua]

Thank you.

Mr. St-Cyr, go ahead, please.

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

Thank you for being here. I'm pleased to have had the chance to hear a little French at the end of the evening. It keeps me awake and in shape.

You talked about the regulatory aspect of designation. Perhaps you can guide us with regard to clause 12, which introduces the new section 109.1. This reads as follows:

109.1(1) The Minister may, by order, for the purposes of subsection (3), designate a country or part of a country or a class of nationals of a country if, in the minister's opinion, they meet the criteria established by the regulations.

Then—and here's where I would like you to enlighten us—it states:

(2) An order referred to in subsection 1 is not a statutory instrument for the purposes of the Statutory Instruments Act. However, it must be published in the Canada Gazette.

Can you enlighten the committee as to what this section means?

[France Houle]

Yes, it means that the instruments are not subject to the regulatory process provided for by the Statutory Instruments Act. Consequently, no draft regulations will concern the matter of consultation. Consultation is provided for by directive. Nevertheless, this is now part of the regulatory process. Then there is publication in the Canada Gazette.

So there is a process that must be followed under the Statutory Instruments Act, which will not apply to these orders. The government may simply designate a country without there being a procedure to follow as such, except to submit the names to cabinet for approval; that's all.

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

So it could be a little like imposing visas in the middle of summer, like that. Parliament isn't sitting, we meet on a weekend, and we have that passed and there's no additional measure.

[France Houle]

That's correct.