Citizenship and Immigration Committee on May 11th, 2010

[The Chair, Conservative, David Tilson]

This is the Standing Committee on Citizenship and Immigration, meeting number 15, on Tuesday, May 11, 2010. The committee will be sitting between 6 p.m. and 9 p.m.

Pursuant to the order of reference of Thursday, April 29, 2010, we are discussing Bill C-11, an act to amend the Immigration and Refugee Protection Act and the Federal Courts Act.

We have three witnesses with us today. The first is here in Ottawa.

Oh, there's another person there. I assume Professor Showler will introduce her.

[Peter Showler, Professor, Human Rights Research and Education Centre, University of Ottawa, As an Individual]

Yes, I will.

[The Chair, Conservative, David Tilson]

We have Professor Peter Showler, from the Human Rights Research and Education Centre at the University of Toronto...the University of Ottawa, I apologize.

[Peter Showler]

Yes, that's very important.

[The Chair, Conservative, David Tilson]

It is. It won't happen again.

Then there are two lawyers from Toronto joining us: Raoul Boulakia, and Mr. Lorne Waldman.

You will each have up to ten minutes to make a presentation.

We'll start with you, Professor Showler. Welcome to the committee.

[Peter Showler]

Thank you very much, Mr. Chairperson and members of the committee.

I would like to introduce Ms. Razmeen Joya, my research assistant. She's here simply to take notes and assist me, if that's permissible with the committee.

[The Chair, Conservative, David Tilson]

We welcome everyone here.

[Peter Showler]

Thank you.

When you said ten minutes, Mr. Tilson, did you mean I have ten minutes to present?

[The Chair, Conservative, David Tilson]

You have up to ten minutes. You don't need to take ten minutes. You can speak for one minute if you wish.

[Peter Showler]

I'll certainly speak longer than that, but I was told I'd have seven minutes. I'll make it a little briefer than that.

[The Chair, Conservative, David Tilson]

That's fine. I don't even know how to work this clock here, so by the time you get going we'll be on our way.

Go ahead, sir.

[Peter Showler]

Thank you.

First of all, I want to thank the committee for the invitation to speak to you.

I'm the director of the Refugee Forum at the University of Ottawa, and in the past several years we've conducted a great deal of research, not only on the Canadian refugee system but also on other asylum systems, particularly in the other industrialized countries, and I'd be glad to respond to any questions you have in that regard.

I do want to say that I will be speaking not only as an academic but as a former refugee lawyer myself, as a former member of the Immigration and Refugee Board, and as a former chairperson of the board. I'll try to bring all of those very different perspectives to my comments and my responses to your questions.

On this notion of having a system that's balanced, that is fast and fair, every asylum system in the world talks about being fast and fair. They are both code words. “Fast” also means effective; it also means efficient. It does not just mean rapid decision-making.

Similarly, “fair” doesn't simply mean fair procedure. It also means that the decisions accurately reflect the law and the facts of particular cases. It also means that they are well-reasoned decisions with good country information and competent decision-makers.

Often the notion is that “fast” and “fair” are contradictory. My view is that it does not always have to be the case. A wonderful example is when you have well-trained and good decision-makers, not only do you get decisions that are more fair, you get decisions that are faster and more efficient, and you don't overburden your appeal system in the same way. So efficiencies can be gleaned through fair and well-framed decisions.

I do want to note that as a committee you do have a serious challenge, because this is framework legislation. Much of the important information and details are contained either in the regulations, in the Immigration and Refugee Board rules, or even in the hiring policy of the IRB. That simply presents you with a challenge, because you're considering a bill when several pieces of the puzzle you have not yet seen.

I'm going to refer to only three portions of the bill. I will say in the beginning that I publicly supported the bill when it was first introduced. That was a qualified support, but it was a genuine one. It was a very good first step, but it is my view that it would be a disastrous last step, and that it is necessary to introduce some amendments to the bill. I'm going to mention four to you.

The first one is there is simply not enough time at the front end of the system in regard to both the eight-day triage interview at the board and the 60-day setting for the first hearing. Practically speaking, at the triage interview most claimants will not be represented. It's not going to happen. It's not possible to have legally aided lawyers there. Triage lawyers are not going to be getting all of the story; they'll only get some of the story.

With regard to counsel, they're not really going to have enough time to prepare a case, prepare the necessary evidence if it's a 60-day hearing. In the worst-case scenario, the short timelines will drive refugees into the arms of unscrupulous consultants who are closer to the ethnic communities and quite frankly don't need preparation time because they don't do anything other than show up.

That wasn't a flippant comment, by the way. Unfortunately, it happens far too often.

My suggestion is the minister and the IRB should clearly commit to longer timeframes. I suggest 30 days before the interview and an additional 90 days to schedule the hearing. That would be a total of 120 days.

The second issue I'll refer to is the hiring authority for public service decision-makers. It should be specified in the bill. The single most important component in the entire refugee system is the competence and the ability of that first-level decision-maker. If they get it wrong, then you're going to overburden the appeal division, and you're either going to have inefficiencies because too many cases will come back, which is exactly what happens in the United Kingdom right now, or you're going to have unfair decisions being passed on.

In any event, with regard to that, I suggest that those provisions be put in the bill. If you want, I can give you examples where it stipulates that the chairperson is the person to control the hiring authority. If that's not in the bill, then in actuality it's the Public Service Commission that can appoint the chairperson or several other officials. There's no reason not to have that in the bill.

I can also provide you with one statutory example where the bill also specifies that it be an open hiring process. There are very good reasons it should be an open process. If you ask me, I can give you those examples.

The third issue I'm going to raise is our famous safe country of origin list, our SCO list. If you decide to eliminate the list, then that's fine. But if you decide you want to preserve the SCO list, it's very important that it have some legal rigour to it, in particular clear criteria for assessing the SCO and an advisory committee to recommend to the minister potential countries. It is very important to have external human rights experts on that committee to ensure it is going to be objective. A sunset clause for the designation would help. Also, including the word “fair” in the legislation itself would not hurt.

Fourth, as you know, right now there is a complete separation in the act between the humanitarian and compassionate applications and the refugee claim. It's split right down the middle. I think there needs to be some flexibility in regard to that absolute prohibition. There are certain occasions when it should be possible to make H and C applications. I'm going to refer to two situations. Mr. Waldman may refer to others.

First, in my view, it would be possible that when a refugee claimant made their claim and then withdrew that claim prior to their hearing--so we're talking about the front end of the system--they should be able to withdraw that claim and make an application for humanitarian and compassionate residence in this country. It is easier; it is cheaper; it is faster to make an H and C decision than it is for someone to go through the entire asylum process. There's no reason why it shouldn't happen. Some claimants, once they arrive in the country, discover that in actuality the more appropriate route for them is through an H and C application.

Linked to that, there is a very strange provision in the bill that says if you make an H and C application, you can't refer to any forms of harm, what they call the factors, that refer to sections 96 or 97. What that is saying is that if you're afraid of certain kinds of things that affect your life or very serious forms of physical harm, what we would consider persecution, you can't mention any of that stuff if you make an H and C application. Quite frankly, it is ludicrous. But more than that, it does not capture the situation of refugee law in Canada right now. Frequently there's a major overlap between the kinds of discriminatory harm that would be within the H and C application and the stricter definition of persecution. There's a major overlap. They're not different. It would be grossly unfair to suggest to someone that they could make an H and C application, but they shouldn't mention any of the really bad things that happened to them. It really doesn't make sense.

That's all I'm going to say now. There are other issues in the bill, and if you want to ask me about them, I'd be delighted to respond. I know our time is short, so I'll leave it at that.

Thank you.

[The Chair, Conservative, David Tilson]

Thank you, Professor Showler.

We will hear from the other two guests, and then we'll have questions from the members of the committee.

Mr. Boulakia, we'll have you go first, sir.

[Raoul Boulakia, Lawyer, As an Individual]

All right, and thank you for the opportunity to speak before this committee.

I'm going to state first of all that I agree with the brief that the Refugee Lawyers Association has presented, and given that there is so much to speak about in this bill, I'm just going to pick a few topics and not try to cover everything.

I agree with Professor Showler that the most important component of the system is the decision-maker up front. You want to have high-quality decision-making at the outset, which is what's going to ensure the integrity of the system, fair decisions, and efficiency, because decision-makers who are qualified and judicious actually do tend to be more efficient overall.

Although this bill is put forward as one that will reform the refugee determination system, I don't believe it really comes to terms with the whole problem of the appointments process. We're going to continue the existing GIC appointments process in what will be the Refugee Appeal Division, and the appointment process for first-level decision-makers isn't truly set out in a transparent way for Parliament to understand at this point. If the board does wind up, as rumoured, supervising some hiring process through the public service, there are no minimum criteria for the qualifications of people who are hired. Qualifications are very easily claimed without a serious vetting of whether people truly are going to be judicious decision-makers.

I believe that Parliament should come to terms with the issue of ensuring a truly arm's-length committee that does genuinely vet the people who are being appointed. This should be across the board at all levels of appointments to the tribunal. In Ontario, the Ontario Court of Justice has an appointment process that is respected and where the committee is made up of people who are truly at arm's length from government. Then the number of selections presented to government, to the minister, is so limited that there isn't the same kind of scope for not appointing the top candidates, as there is now.

With respect to the proposed process, the first aspect of the process will be an interview conducted at the board. Although it's professed that it should be an eight-day interview, I find it hard to believe that the board will be able to stick to that. We've seen this type of problem before. If it is truly done quickly, then, as Professor Showler has stated, it could be quite unfair.

The desire to control what the claimant states and have their first statement be one made to an official at the hearing I think is problematic. It's going to impair people, particularly the most vulnerable, from disclosing all of their information. I'm concerned about how that will impact on people as they progress through the refugee system.

The appeal system does not allow people to prove that they were telling the truth in the first place. That's a grave limitation. It only allows evidence that's quite limited. You have to basically adopt the same test that exists under the current PRRA, the pre-removal risk assessment model, where people often have been telling the truth, but if it's deemed that they should have known better or could have thought of presenting the evidence before, they're barred from presenting it. I think the purpose of the appeal should be to ensure that the appeal board does get the truth.

With respect to legal aid, at present the government and provinces have a cost-sharing agreement, which has essentially been a compromise that has ensured that legal aid has continued for refugee claimants.

In Ontario last year, about half of the funding for legal aid came from the federal contribution. Legal Aid Ontario is concerned about the cost implications of Bill C-11. Just today, they told me that they're coming up with cost estimates of what they believe Bill C-11 will imply for them, and they seem to believe that costs could go up by 50% from last year's totals.

Right now the cost-sharing agreement is going to expire in March 2011. This new system is clearly going to impose some new costs. Also, the CBSA is going to get substantially more resources and the hearing system is going get more resources, which is going to lead to more need for representation on the other side, and I am concerned that the bill does not balance that out or ensure that the provinces will receive adequate funding or encouragement to continue with their legal aid funding. A mulit-year commitment would be helpful to give greater stability to our provincial legal aid plans.

I'll leave my comments at that and invite questions.

[The Chair, Conservative, David Tilson]

Mr. Waldman, do you have some comments to make?

[Lorne Waldman, Immigration Lawyer, As an Individual]

Yes.

Like Mr. Showler, I gave qualified support publicly to the bill when it was introduced, because I believed that it was a good start. Having said that, I agree with Mr. Showler that if changes aren't made to the bill in its current form, the bill will create serious problems. It will certainly result in charter challenges, and I believe that it will undoubtedly fail. That's why I think the work of this committee is vital, because in the end, we all want a fair and efficient refugee determination system.

Some of us, like me, have been through this before. I can say that I was present in 1976, when the Immigration Act was enacted. I was present in 1989, when the IRB was created. I was present in the mid-1980s, when there were significant changes to the procedure. I was also present in 2002, when the procedure was changed again, and I am present again today.

We've seen it. We've heard the promises of the officials over the years that this was the solution. And each time, we've seen that their proposals have not succeeded, because to a very large extent they've ignored the representations of experts.

My first point, and I agree completely with Professor Showler, is that the essential issue is that we have to have competent first-level decision-makers. Over the years we've seen that there have been two practices. The first has been to not appoint competent decision-makers. The selection process has not been satisfactory. The second has been to underfund the process.

The first condition of any successful determination process must be that the system must be one that allows for the appointment of competent decision-makers. I agree with Professor Showler that the decision-makers should be appointed by the chair or under the power of the chair. And the government must make a firm commitment that it will ensure that the appointed decision-makers have adequate resources to cover the quorum needed to make the necessary number of decisions.

The second issue here, in terms of the proposals, is the timing. Again, I agree with Professor Showler and the other witnesses that the timing is completely unrealistic. It's been suggested that because the eight-day interview is only an information-gathering process, the information will not be used against a person. That is completely untrue. In any procedure during which information is recorded and kept, that information can be used at the subsequent hearing to undermine the credibility of the witness. It can be used to point out inconsistencies or omissions. That's why it's vital that the refugee claimant be afforded legal advice before he or she is called in for the interview. That's why an eight-day time period is completely unrealistic.

Even more unrealistic is the 60-day hearing process. To legislate a timeframe--it won't be in the act, but it will be in the rules--that is not going to be complied with really undermines the rule of law. We already have one example of that. At the current time, IRPA requires a Federal Court judge to set down a judicial review of an immigration matter within three months of the date on which leave was granted. Now, because there are too many hearings required in Toronto, and they don't have enough slots, the Federal Court routinely looks at these leave applications, sets them aside, because they don't have slots, and issues the orders months after leave has been decided. That is done to create the legal fiction that they're complying with the act, when everyone knows that they're not. It really undermines faith in the rule of law when you have justices of a court who don't comply with the law because they physically can't. The problem is not the court; it is a law that requires them to render decisions within timeframes that are impossible, given the resources available to the court. So the timeframes are completely unrealistic.

The next issue, of course, is the safe country of origin list, the SCO list. I'm sure that other people have discussed it, so I won't say too much. In my view, a list is not necessary. If the system is adequately funded at both the first level and the second level, the system will be able to deal with the claims in an expeditious fashion. To create a list to create different categories of claimants, some who get appeals and some who don't, in my view is unnecessary and unfair.

Having said that, if you insist on creating a list, I agree with all the recommendations of all the previous speakers with respect to the types of requirements that have to be incorporated into the legislation.

I'd like to speak very briefly about the last point, which is the one that I think concerns me more than any other, and that is restrictions on the humanitarian and compassionate process. The H and C has been part of our humanitarian tradition in Canada for many, many years. Indeed, the Supreme Court, in the case called Jimenez-Perez, in 1984 upheld the fact that immigration officials were required by law to consider humanitarian applications. I've dealt with thousands of persons whose lives have been saved because of the possibility of applying and being accepted on humanitarian and compassionate grounds. It's been the one aspect of our immigration process that's been constant through the years, and it's consistent with our humanitarian tradition.

This legislation will seriously undermine, or in some cases effectively eliminate, the right that people will have to apply on humanitarian and compassionate grounds. In its current form there's an absolute bar to applying once you've made a refugee claim during the entire proceedings, and for a year afterwards. There's no reason for it. The existence or not of a humanitarian application has been held repeatedly by the courts to not have any impact on a person's right to stay in Canada. You can apply for a stay, but they're very infrequently given, and in any event the number of stay applications is relatively small.

Taking away this right, though, has very serious implications. And I'll close by giving you one example. Last week I was in the Federal Court of Appeal on a case that has interest because it deals with the interpretation of the convention. The government lawyer was taking a very extreme position and said the convention should be interpreted in a certain way. One of the justices of the Court of Appeal said, “Well, if that's the case, you're putting people in situations where they're going to be denied refugee status but they could be at risk. What's their remedy?” And what did the lawyer say? The lawyer said what lawyers always say, that there's always a remedy, and the remedy is the humanitarian application, because that's been the last resort that's existed.

It wasn't me saying it. It was the lawyer for the government saying it, to which the Federal Court judge said that if the legislation that's currently before Parliament gets passed, that remedy will no longer exist. I'll tell you that if it gets passed, you'll force us to challenge the legality of that restriction under the charter, because there will be many cases that will arise where people will have compelling cases but will not be able to bring them forward through the legal process.

Those are all my comments at this point. Thank you.

[The Chair, Conservative, David Tilson]

Thank you, gentlemen. Obviously all three of you are very well qualified, and we appreciate your bringing your expertise to the committee.

The committee members will now have some questions.

Mr. Bevilacqua, you have up to five minutes, sir.

[Maurizio Bevilacqua, Liberal, Vaughan, ON]

Mr. Coderre.

[The Chair, Conservative, David Tilson]

Okay, Mr. Coderre.

[Denis Coderre, Liberal, Bourassa, QC]

Yes, I'll split my time with Maurizio.

Mr. Waldman, do you make a distinction between a safe third country agreement and a designated country?

[Lorne Waldman]

The safe third country agreement is the one we have with the United States. All it does is provide that people who come to Canada through the United States and can make a claim in that country should make their claim in the United States and not in Canada. They're not being denied a right to claim; they're being told that because the United States is a country that Canada has determined respects human rights and gives a fair refugee determination, they should make the claim in the United States.

This is completely different from the list that's now being proposed. The effect of being put on this list will only impact your rights in Canada. You'll have a right to a first determination, but you will not have a right to an appeal. Some people would ask why that is important--you're still getting your quality first hearing. But we have sustained for many, many years that there will be problem decisions; it's inevitable in any decision-making process.

The judicial review is not an adequate appeal mechanism, and that's why many of us lobbied for years for the creation of an appeal mechanism. So if an appeal mechanism is now recognized as being necessary--

[Denis Coderre, Liberal, Bourassa, QC]

I agree with you, Mr. Waldman. The reason I'm saying that is because having designated countries is where we'll have major problems. We can have some level of negotiation among countries in some process, but we have to keep our way of doing things in Canada, because every case is specific. My concern, and I'm totally in support of Professor Showler, is that when we talk about designated countries, it means, number one, we're losing the value of our immigration and refugee system that every case is specific.

Is that right, Professor Showler?

[Peter Showler]

That's correct.

[Denis Coderre, Liberal, Bourassa, QC]

One of my concerns is, first of all, I'm totally in agreement with the process, where we have the first line with competent officials. I don't have any problem with that.

I would like to hear from you a bit about accountability. I believe that a minister has the right to have some special power and there should be a balanced approach between the system and the fact that a minister is representing the people, in a sense. How can we manage to have a good hiring process without just being at the mercy of that process and keeping that last resort from the minister, for example?

[Peter Showler]

Are you referring to the safe country list, or are you talking about the hiring of members?