Citizenship and Immigration Committee on May 1st, 2012

[Richard Kurland]

Frankly, I'm leery of biometrics. I'm uncomfortable that the technology today allows a government, foreign or domestic, to identify and locate the holder of certain documents containing chips. I'm leery of the facial biometric recognition software in our ports of entry. Canadians do not know the extent of biometric information collected; they do not know the extent of biometric information stored and shared, not just between federal and provincial governments but also with governments internationally.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Kurland.

Please go ahead, Ms. Sims.

[Jinny Sims, NDP, Newton—North Delta, BC]

Thank you very much.

Thank you to the three of you for taking the time to come and meet with us today.

My question is specifically for Peter at first.

I think there have been a lot of conversations about the haste with which this legislation is being pushed through. I don't think anybody is saying that it's being done in a way that gives us all the time needed to look at it in detail. I'm also concerned about the centralization of more and more of power in the hands of one person, one minister. I'm not just talking about the current minister, because once a law goes into place, we're talking about future ministers as well. I'm concerned that lawmakers have had very little say, because so much of it is going to be done through ministerial orders; and in many ways we're being asked to discuss a bill for which there is very little clarity, because so much of it is going to be in regulations.

I would say that the one area that has already created a lot of emotional energy is section 19, that is, the revoking of the permanent residency. It's very, very clear that the minister himself was not aware of it. At least when he came here, he said that he was open to amendments, which makes me think, if that was not his intention, then why wasn't it changed before it arrived at this committee or before it ended up in the House? Now for him to say that he is open to amendments still makes me a little leery.

For a lot of Canadians out there, or residents in Canada, they are experiencing a lot of anxiety. You and a wide array of others have identified this concern. By the way, we heard this concern expressed a number of times yesterday.

Can you explain how you arrived at this interpretation, and why it poses a concern?

[Peter Edelmann]

The interpretation is pretty clear on the face of the bill. I don't think it takes a subtle interpretation of the bill to look clause 19 and see that it changes section 46. There's no ambiguity about it. It is a change.

In the minister's discussions about this, there seems to be a confusion between vacation and cessation. They are two different processes. Vacation is a process by which protected person status can be taken away by way of vacation, when somebody has originally obtained their protected person status by way of misrepresentation or withholding material facts.

Currently under the act the consequences of that are loss of permanent residence as well as loss of protected person status. So that already exists in the act.

Cessation is a separate process. Cessation is a process by which protected person status can be lost if the situation in the home country or the country of origin has changed and in certain other circumstances that are related to that. That exists in the current act as well, and so protected person status can be lost in those circumstances.

What is changing is that right now in the act that does not lead to the loss of permanent residence. So one loses protected person status, but not permanent residence.

When the minister has discussed this, as he has in The Montreal Gazette piece, for example, he uses the term “revocation” to talk about both of them at the same time. Revocation is not a term that is used in the act in this context. So it's a term that's being used to meld these two concepts together and talk about them at the same time when in fact they're two separate concepts.

As for vacation and the example that's used by the minister—and by Ms. James, I believe—of a person who goes back after a couple of months, if that is evidence of the person originally being misleading or engaging in misrepresentation when they made their refugee claim, that would be a basis and new evidence at a vacation proceeding.

[Jinny Sims, NDP, Newton—North Delta, BC]

Thank you very much.

It causes me concern that a minister who is so hands-on with everything he does with the immigration file has maybe missed this. Now he's open to amendments, but we will see about that.

How do the provisions in Bill C-31 dealing with detention of designated foreign nationals differ from the provisions that already exist in the current law? This is another area of concern. Canada does not have a history of just throwing people who come here as asylum seekers en masse into prison indefinitely, or at least for up to a year. So what are these differences and what is significant about the differences?

[Peter Edelmann]

The differences are night and day. The normal detention provision under the act is that there is a detention review after 48 hours, then after seven days, then every 30 days thereafter.

In the most exceptional detention regime that we have, which is dealing with security certificates, there's a detention review at the beginning and then a review at least every six months thereafter. This is even harsher than the security certificate regime, which the Supreme Court of Canada commented on in the Charkaoui case. I don't even understand how one would present an argument that this is constitutional.

If I were arguing for the Department of Justice, I would be in a very difficult position arguing for the constitutionality of these provisions where there's a one-year detention with no review. It may be that the recourse is going to be by way of habeas corpus in the provincial courts, as the federal legislation will just have fallen. But there will be no mechanism for review, and the law with respect to detention will have to be dealt with in some way and that may be through way of habeas corpus. I don't know if that's the intention of the legislator or not, that the provincial courts deal with the detention issue, but that seems to be the only recourse that will be left.

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Lamoureux.

[Jinny Sims, NDP, Newton—North Delta, BC]

I've run out of time already.

[The Chair, Conservative, David Tilson]

That's what happens when you're having fun.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

You never know if the minister might be thinking of the notwithstanding clause, quite possibly, to deal with it. I say that somewhat tongue-in-cheek knowing full well that it would never happen—at least I'd like to think so.

My question, and I have a couple of questions in a very limited amount of time, is in regard to the mandatory detention. What became very clear yesterday when we had the Canada Border Services Agency here is that the current system seems to work quite adequately.

Mr. Kurland, you had made reference to the fact that in the last x number of years—I think you said 10 years—we've had a couple of boats and that it's very rare. Yet the government has decided to take the draconian action to have mandatory detention. Do you in any way support that aspect of the legislation, or would you suggest that at the very least that should be amended out?

[Richard Kurland]

I left in the term “attorney” knowing that the Chair would raise the point, and in connection with this answer, that's why I put it in.

Coincidentally, out of the last, say, five marine arrivals, at least three arrived within three weeks of a new immigration minister picking up the baton and assuming those responsibilities. You can't get a baseball across the Pacific Ocean without the Americans knowing. To just spitball here, what if an analyst in Washington came up with the idea that we allow the Canadian taxpayer to pay for our northern border by allowing a marine arrival, knowing full well the political consequences for an inexperienced immigration minister. Regarding the chances of more marine arrivals, just watch when you appoint people to the position of minister.

Yes, I am opposed to mandatory detention for a mass arrival, but I suspect those are going to be few and far between. I have no other answer.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Edelmann, one of the things that has become fairly clear from the minister and a number of the Conservative MPs who actually spoke to the legislation is that you might have a vested interest because you're a lawyer and you deal with refugees.

I'm wondering if you could comment as to why it is you're providing advice to this committee. Does it have anything to do with your current income or future income?

[Peter Edelmann]

I can say that my own practice is criminal and immigration law. I can say that refugee law by far is not the most lucrative part of my practice. I don't know any refugee lawyers who are making significant amounts of money practising refugee law. I came here for two days to address a number of concerns I have about the bill.

Investigative detention will be very lucrative for my practice. Permanent residents who are put away on mere suspicion are going to call me. They're going to hire me. So, from my personal financial interest, this legislation cannot be draconian enough.

The reason I'm here is that I have a concern with respect to the integrity of the system as a whole. I have a concern about the effect on the human beings who are going to be impacted by this. I'm here on behalf of my clients and my future clients, as well as other Canadians and permanent residents whose lives are going to be significantly changed and impacted by this legislation.

In terms of my financial and personal interests, please go ahead; I don't see any problem. The more poorly written the legislation is, the more there is for us to live on.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

The more business for you.

[Peter Edelmann]

In fact, it's quite helpful for us.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

The clauses that concern you most in terms of their need of amendment, would they be clauses 23 and 26? If you could amend one specific clause, which one would it be? But stay away from the detention area because we know how flawed that is.

[Peter Edelmann]

It's very difficult. We have suggestions on a number of different clauses.

The investigative detention provisions are of some concern. There are a number of concerns within the refugee context. The cessation provisions would be high up there. The denial of humanitarian and compassionate access is of definite concern. The entire designated foreign national regime, I would say, is in need of significant changes, if it's useful at all. The designated countries of origin is the other major change, not the idea of designating countries of origin but the mechanism by which it's going to be done and the criteria.

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Opitz.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Mr. Kurland, the majority of asylum claims are done inland. What do you think can be done to encourage more people to apply from overseas?

[Richard Kurland]

Nothing. We have an ample supply of overseas refugee claimants who deserve to be in Canada but cannot come to Canada because there are limits to our generosity.

We do our fair share. We're a gold medal refugee determination system country. We should take more. We may take more in future, but that's the appropriate discussion. If we want to take more, explain how. It's a priority issue.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

In that case, what do you think the government can do to prevent the refugee system from becoming a parallel immigration system, as opposed to providing asylum for those who need it most?

[Richard Kurland]

Well, missing in the analysis of Bill C-31, and probably because of the shortage of time as pointed out in testimony, is what Canada does do alongside Bill C-31. The budget provides resources, more resources in an era of restraint, for intelligence gathering and sharing overseas to help stem the sources or drivers that produce refugee claimants to this country.

After the marine arrival, Canada, without public credit for doing so, allocated intelligence resources to the neighbouring countries of Sri Lanka, using its diplomatic resources to stem the flow and correct the situation on the ground. In Europe, Canada is a contributor to the Roma situation there, in terms of finding solutions proactively. Alongside our silo of refugee determination, our silo of immigration processing, we are holistically allocating resources on the diplomatic, intelligence, and law enforcement front to augment our partnerships abroad to address precisely your question.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Yesterday, Martin Collacott said that drug dealers are turning to human smuggling now because the penalties are less. Do you agree with the statement, and do you think the measures in Bill C-31 go far enough?

[Richard Kurland]

With my good friend, Mr. Collacott, for over 20 years, I have been hard-pressed to disagree with him publicly on any matter. However, he may not be wrong, as he has access to information far superior to my low level means. If he is indicating that the criminal element internationally or drug dealing establishment now prefers refugee or human smuggling for its lower costs, he has the facts and I don't.

Nevertheless, that's not what I would be measuring. You can't measure potential supply; you have to measure the hard facts on the ground, the intake to our Canadian overseas determination system, the intake to our Canadian inland system. Has there been a spike there? No.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

There are issues of criminals, traffickers, smugglers coming into Canada. I would submit to you, sir, that these people use mass events as a way of hiding within a crowd. That has a certain impact on public safety. I know what the impacts are. Particularly, people who are trafficked and smuggled in here under false pretenses, they would expect one thing and the next thing they know they're going somewhere else.

You talked about biometrics. I'm going to suggest to you that biometrics is in fact helpful in this case, not only for that reason but also because criminals have come into this country multiple times; been deported multiple times; re-entered multiple times; re-offended multiple times, sometimes seriously, thereby having a huge impact on public safety. So when a mass arrival comes in, whether it's by airplane or ship or other forms, even onesies or twosies, that detention is sometimes required.

If you don't know who these individuals are and they're not cooperative at times in revealing their own identity, why would you release them into the Canadian public until you are absolutely sure?