Citizenship and Immigration Committee on May 1st, 2012

[The Chair, Conservative, David Tilson]

Mr. Goldberg.

[Mitchell Goldberg]

Thank you.

There were several comments there I'd like to respond to. I appreciate the question.

Yes, the Quebec Bar is concerned about the integrity of the system. Of course, the Quebec Bar, like I think every group that has appeared before you, is also concerned about protecting the security of Canadians. However, this bill has nothing to do with protecting the security of Canadians. To be frank, this bill totally misses the mark. It has practically nothing to do with protecting Canada from smugglers or criminals, as you allege. It has nothing to do with keeping refugee children safe on boats. It is entirely about preventing refugees from coming to Canada and, once they're here, punishing them, that is, punishing refugees and permanent residents for being in Canada and for coming to Canada as a place of refuge.

To answer your question about the position of the Quebec Bar, the Quebec Bar agrees with the Canadian Bar Association and the Canadian Association of Refugee Lawyers and human rights groups across the country that this bill is so inimical to human rights and refugee protection that the only proper way to deal with this bill is to withdraw it.

[Rick Dykstra, Conservative, St. Catharines, ON]

Obviously that's not going to happen. I appreciate your perspective on it, which is why I was seeking to know whether there were some amendments that would be helpful. You've identified a number of areas that you're concerned about and you didn't necessarily offer specific amendments for those concerns.

I have a couple of other questions. First, on page 8 of your submission you say that the barreau urges the government to allow 38 days for the filing of forms at the beginning of the process, which is actually 10 days longer than the current process that we use. But on page 9 in your last paragraph you actually refer to the 28-day time limit. I'm assuming that the 38 is just an error and it should read 28?

[Mitchell Goldberg]

Yes, it is 28.

[Rick Dykstra, Conservative, St. Catharines, ON]

Thank you.

The first part of your submission talks a lot about the designated country class. I want to talk about that, or ask you some questions about it, because you refer to the exercise of how the process will work as having “ill-defined criteria”. I wondered about that, because while you refer on page 6 to the United Nations Human Rights Council being in support of one of the recommendations you're moving toward, when it comes to the designated country, you're opposed to it. Abraham Abraham actually said at the standing committee that:

...[the] UNHCR does not oppose the introduction of a “designated” or “safe country [of] origin” list as long as this is used as a procedural tool to prioritize or accelerate examination of applications in carefully circumscribed situations, and not as an absolute bar.

I wondered why you use the UN to support part of your argument, but on the other hand, when it comes to designated countries, you're not prepared to support Abraham Abraham's position on it, nor to support the United Kingdom, Ireland, France, Germany, the Netherlands, Norway, Switzerland, and Finland, among a number of others that actually have the designated safe country.

[Mitchell Goldberg]

It's a good question. I support the position of the UNHCR that is reflected in the Balanced Refugee Reform Act, because the Barreau, like other groups, supports the Balanced Refugee Reform Act, which the immigration minister also supported at the time and all the opposition parties as well.

In fact, the position of the UNHCR—which, by the way, was with regard to the designation of safe countries and not the designation of irregular arrivals—was that it's okay to expedite certain claims, but it's not okay to deprive people from certain countries of an appeal on the merits. That has been the position of the Quebec Bar and other groups across the country, and that was the position of the minister, as reflected in this government's support for the Balanced Refugee Reform Act.

[The Chair, Conservative, David Tilson]

Thank you.

Madame Groguhé.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Thank you, Mr. Chair.

I want to thank our witnesses for joining us this morning.

Yesterday, professor Macklin warned us in her testimony about Bill C-31, which would violate the principles of natural justice and the rule of law. We have heard a number of testimonies, and I admit that I am quite worried, especially since the human faces of refugees or refugee protection claimants have been completely blurred out and set aside.

Here are my questions. In your brief, you claim that a year of mandatory detention in the case of illegal arrivals is unreasonable and excessive. Could you give us a more in-depth explanation of what you consider to be unreasonable and why it is excessive, especially in light of the charter and of international law?

[Mitchell Goldberg]

Thank you very much for the question.

It is very clear that the mandatory detention is a violation of the Canadian charter—sections 7, 9, 10 and 12 in particular. The Supreme Court has already made a relevant ruling in the Charkaoui case. The chief justice spoke very eloquently when she said it was unacceptable to detain immigrants to Canada for an extended period of time without granting them the right to a judicial review.

You know that the current legislation provides mechanisms for detaining individuals if there are doubts about their identity. That is already in place. In addition, if people are suspected of being a threat to public safety, they are detained. However, judicial reviews are conducted to ensure that unlawfully detained people are released.

I think we would have to go back to the Second World War to find a similar situation in Canada, a democratic country. We would have to go back to the mass detentions of Canadians of Japanese origin. That was the last time, in Canada, that individuals were sent to concentration camps simply because they were of Japanese origin. We can draw a parallel between that situation and what the government is proposing in Bill C-31, and that is unacceptable.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Thank you.

In your brief, you also say that the mandatory detention procedure violates the habeas corpus rule. Could you tell us more about what you mean by that?

[Mitchell Goldberg]

The Canadian Charter of Rights and Freedoms simply states that, if someone is detained, they have the right to be heard by a judge, so that the reasons for their detention can be assessed. That is a basic rule in a free and democratic country. A person cannot be detained without an independent judge assessing the government's right to detain them. Lawyers, the Canadian Bar Association and the Barreau du Québec, human rights groups and average Canadians are shocked to see the government proposing something like this. I trust that the courts of law will repeal this legislation. Why even introduce a bill when it's already known that it violates the Canadian Constitution?

[Sadia Groguhé, NDP, Saint-Lambert, QC]

I agree with what you just said. Other witnesses have made the same comment, regarding the possibility of taking the matter to court and initiating lengthy proceedings.

Could you quickly explain to us how the bill's retroactive nature will offend the rule of law?

[Mitchell Goldberg]

There are several aspects concerning retroactivity. I am mainly referring to the fact that the minister's designation power is retroactive to 2009. That means that those who arrived in Canada on board Sun Sea, for instance, will not be able to apply for permanent residency or bring their children and husband until their five years' is up, even if they are recognized as refugees. They won't be able to apply for a passport or travel documents before the five-year period is up.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

As you know, Bill C-31 provides the minister with the new power to revoke permanent residency from protected persons if the situation in their country of origin changes and they are no longer at risk. The minister said that was not the intended effect of the bill's provision. However, you and many others have expressed your concerns.

Could you explain how you came to that interpretation and why that situation worries you?

[Mitchell Goldberg]

This interpretation is shared by legal experts across Canada: the Canadian Bar Association, the Canadian Association of Refugee Lawyers, the Quebec Bar. At least eight law professors who specialize in immigration matters have expressed their opinions about it.

Clearly, it is a new power. We are not talking about people trying to commit fraud. These are people who have always told the truth; it is just that the circumstances in their countries of origin have changed. They are permanent residents. This new power does not exist in the current act. If the minister claims that such was not his intention, all he has to do is amend the bill to make it clear. I have heard that the minister wants to clarify this aspect of the bill, and I think that is encouraging.

[The Chair, Conservative, David Tilson]

I'm sorry, but I have to interrupt you. We have only so much time to allow you to speak, and I apologize.

Mr. Lamoureux.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Goldberg, I want to take advantage of the fact that you are head of the Quebec Bar association. Is that correct?

[Mitchell Goldberg]

Mr. Plourde is the president.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Okay. I will direct my question to him.

The refugee bill that we have before us is in good part, as the government will tell us, to benefit the refugees. It's interesting. My understanding is that the appeal division in Ottawa is going to be closed down. Therefore, refugees in Ottawa will have to go to Montreal to have their cases heard. I'm not sure how that will work in terms of legal aid, for example, in the province of Ontario.

Could you comment on that? I realize it's not the most relevant question. It's just to highlight the fact that here we are trying to help refugees, according to the government, by speeding up the process. Does a decision of that nature have an impact on the processing of refugees?

[Nicolas Plourde]

I'm going to let my colleague, Mr. Goldberg, answer that. It is a very particular question and he's the expert. I think the question would be better answered if my colleague did so.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Sure.

[Mitchell Goldberg]

You are referring to the budget decisions of the government and the impact on the Immigration and Refugee Board. They've had to make severe cutbacks and one of the Immigration and Refugee Board's responses was effectively, as you said, to close the Ottawa office, so that all hearings for the Ottawa regions will be held in Montreal. I'm sure that will cause hardship for many individuals who are living in the Ottawa region and who would have to travel to Montreal or to proceed by video conference, which is very problematic.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

I'm thinking in terms of how the government is talking about how this legislation is going to speed up the process.

[The Chair, Conservative, David Tilson]

I'll stop the clock. Normally we let you talk about anything you want to talk about, but we're talking about Bill C-31, I would remind you, and I don't think your first question had the remotest connection with Bill C-31.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

I appreciate the comment.