Thank you very much, Mr. Chair.
The Canadian Civil Liberties Union has been in existence since 1964 and continues to work to protect civil liberties in Canada. It is in that context that the association comes before you today. We certainly appreciate the opportunity to share our concerns with the committee.
My presentation comes in two parts. First, I want to point out some constitutional problems with the bill and I will speak to three points in that regard. Clearly, the association supports the idea of improving the refugee definition process. We really support that approach, as well as putting human smugglers into the criminal justice system. But, in our opinion, if we try to do that with this bill, we will be going too far and we will cause major constitutional problems for Canada. From that point of view, therefore, the bill must be revised.
In the second part of my presentation, I am going to invite you to reflect on your role as parliamentarians as you study this bill.
First, there are three things that I want to suggest, and here I obviously speak from a civil libertarian position. There are three things in this bill that transform some constitutional law concepts. I will invite you to worry a little bit about this, because in doing so and achieving some good objectives, there may be some drawbacks that will affect all Canadians.
The first one is what I describe as the mandatory detention of group-designated people. The three things that I want to say here are these. First, this is a group detention; it's a group assessment. In Canada, we tend not to agree with group assessment. Mass arrests are wrong. Mass detention are wrong. I think it's important to view this as going goes against some of the fundamental issues that we have in Canada, which is that when you are going to make a decision that is going to deprive someone of his or her liberty—and here I will go back to Mr. Collacott's argument—you must have an individual assessment as to whether there is a good reason to do so and whether indeed the person poses a risk. If you read in our brief the description of what the law is on arbitrary detention, you will see that it requires an individual assessment of whether the person has committed or is connected to crime. This bill doesn't do that.
The reasons the minister will be able to designate a group have to do with administrative convenience or administrative demands, or because he or she suspects that maybe there will be some smuggling. But it's never connected to the individual members of the group. That will be a flaw in constitutional terms, in terms of arbitrary detention. There is group detention and group assessment of blame that is inappropriate.
The second one is that this detention is without judicial supervision. There is no possibility of judicial validating or vetting of the detention for 12 months. This is a denial of the right to habeas corpus. You cannot do this. This is dangerous. It's dangerous because if we start doing this and saying, this group does not have the right to habeas corpus and this group is denied the possibility of having the legality of their detention vetted by a judge, I think we run the risk—not that this government will do it—that other governments may decide to designate a group and deny them the right to habeas corpus and the right to have their detentions validated.
In its Charkaoui decision, as you will read in our brief, the court said that 120 days of detention for people suspected of terrorism without judicial review is wrong and unconstitutional. There is no doubt that for asylum seekers where there is no evidence of a link to criminal activity, this will be viewed as unconstitutional.
I also want to provide the committee with the following reflection. If there are administrative problems, and there will be, the following is what the act currently says. I think it's important to say that it is possible now. Our current immigration law doesn't have mandatory detention, but a person must be seen by an independent decision-maker within 48 hours of being detained to determine whether there is a need to keep them locked up. And in a way, I think we are certainly ensuring that people will show up for their hearing, because they can be detained if there's a risk that they will not show up, or if they present a risk to national security and if their identity cannot be ascertained. So the current provisions provide for the administrative necessities that are now in fashion.
Mon deuxième point, my second point, is to urge you as parliamentarians to reflect on this bill. Just to complete the idea, there's also a discriminatory aspect to this. Not only will people who are in the designated group be detained for 12 months without judicial review, but thereafter their ability to seek permanent residence will also be delayed, even after they have been found to be legitimate refugees.
In my view, there's no reason in Canada to make distinctions between some refugees and others. Once they have received refugee status, they should be treated the same; they should have the same ability to become permanent residents. The reason is that demanding permanent residency is part of integration into Canada. Once they are recognized as refugees, they should be treated equally.
In my view, this will raise some issues concerning a violation of section 15 of the charter, and I think we should be worried about that as well.
I'm speaking to you as parliamentarians. Why do we think that you as parliamentarians should worry about this bill? This is a bill in which I think there is a large expansion of executive powers.
I think it's incumbent upon parliamentarians to recognize what their role is here. It's to ensure that this is not going too far in preventing the executive from being sufficiently bound. In a way, the executive now decides that there will not be judicial review, and then under this bill has very little parliamentary oversight as well. I urge you to reflect on what your role is as parliamentarians in evaluating this.
Le deuxième point that I want to make on the role of parliamentarians here is that we all know that at times it is easy for xenophobic feelings to arise. I am pretty sure that there is no minister in this government who would order mandatory detention of poor souls arriving from desperate countries, but this projet de loi, this bill, is not here only for now; it will be here forever. Indeed, once you create the ability.... What the minister says is “I may not use this bill, but I want it in my back pocket just in case”. But this possibility of designating a group could be done wrongly in the future.
I was going to mention that at times Canada has done some nasty things, some things that we're not proud of. I want to conclude on this and say that when we imposed the head tax on Chinese immigrants; when we turned away the ship the Komagata Maru in 1914 and 376 Indians died; when we refused access to the Afro-American farmers during the recession; when we incarcerated the Japanese and the Ukrainians; when we denied entry to the St. Louis in 1939 and 900 Jewish people were returned to Europe, these decisions were popular. My fear is that decades later we unveil commemorative plaques, we offer apologies, and sometimes we pay damages and try to alleviate the pain, but it's too late: people have died.
I urge you to think about the possibility that there may be decisions taken in the future to incarcerate people for 12 months and to deport them in a context in which, later on, we will feel very ashamed of what we have done.
It's not appropriate to leave all of these decisions to a minister. It creates too much danger of this power being abused. I urge you to consider this possibility.
Merci.