Citizenship and Immigration Committee on May 1st, 2012

[The Chair, Conservative, David Tilson]

You can always try, but I just remind you that's what we're talking about.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Yes.

[The Chair, Conservative, David Tilson]

Start the clock.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Thank you, Mr. Chair.

I guess I couldn't resist, given the witnesses who are here and believing, ultimately, that the cut will have a negative impact on refugees here and, in particular, Ottawa. Having said that, I will get to—

[The Chair, Conservative, David Tilson]

Mr. Lamoureux, you're supposed to stop when I suggest so.

Thank you.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Thank you, Mr. Chair. I appreciate the leniency.

I'm wondering about the whole issue of the charter and detention. Here the current system works. There is no need, I would argue, for us to have mandatory one-year detention. I'm wondering if either witness would be able to comment on whether or not this whole issue of the one-year mandatory detention could be challenged in court, as I suspect it will be, and if they could provide their perspective on that aspect.

[Mitchell Goldberg]

I'll do so with pleasure.

It not only might be challenged, it will be challenged. We are very careful when we say something is against the charter. You will notice the language in our submissions most of the time says “possibly against the Charter” because we were trying to be, shall we say, conservative in our submissions, as we're speaking for the Quebec Bar.

When it comes to the one-year warrantless mandatory detention, the Quebec Bar, like other legal experts, agrees not that it might be unconstitutional but that it is unconstitutional. Why do we go so far? It is because the Supreme Court has made that decision in the Charkaoui case in 2006. It's in black and white.

I note that the Canadian Bar Association and the Canadian Association of Refugee Lawyers quoted from that judgment. There is no doubt that one-year mandatory detention without judicial access is an infringement of international law and the Canadian Charter of Rights and Freedoms.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Would you say, and I don't want to lead you in any way, this is something that if the committee allowed it to pass, we would be supporting a law that is virtually unconstitutional?

[Mitchell Goldberg]

Every single law that comes before Parliament is supposed to be vetted by the justice department to determine whether it is in conformity with the charter, since we are supposed to have the rule of law in this land.

I would love to see the legal opinion that the government supposedly has indicating that this law is constitutional and, specifically, the detention provisions. I would love to see that opinion. I think a lot of us would love to see that opinion because it's very hard to imagine that a legal expert could say how and why this bill is constitutional.

There are many other parts of this bill that are very questionable as well, but that part is obvious.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

You're not a rookie lawyer and the gentleman sitting beside you is the head of the bar association in Quebec. To the very best of your knowledge there is nothing that has ever been made available to you or you have heard nothing in regard to any sort of a legal opinion that would in fact say that this is constitutional?

[Mitchell Goldberg]

From what I understand, the government has to validate each law as being in conformity with the charter. From what I understand, the government has said, yes, we have a legal opinion. The minister has gone around saying it is charter-compliant, but that legal opinion has never been provided, as far as I know, to the opposition parties or any other outside legal experts.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Goldberg.

We'll go to Mr. Dykstra.

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

Thank you, Chair. This is what happens when one only has seven minutes; you end up having to come back again.

Back to the designated safe country aspect, you mentioned on page 4 that the order does not allow for public debate. You said that it is to be exercised according to ill-defined criteria. Would you mind telling me what ill-defined criteria are?

[Mitchell Goldberg]

You're talking about the designated country of origin.

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

Yes.

[Mitchell Goldberg]

It's interesting to note that in the Balanced Refugee Reform Act the criteria were quite different. They were much more extensive in terms of human rights criteria. What's more, there was to be, in the law that's supposed to go into effect on June 29, an expert panel of human rights experts to advise the government, based on very extensive criteria. Now the criteria have been watered down for some reason, and the government, in this bill, has seen fit to disband that committee of human rights experts.

I note that The Globe and Mail has been very critical of that, as have, of course, human rights groups and lawyers groups across the country. It's surprising. I wonder what the government is afraid of, since it is disbanding a group of human rights experts.

I note that in the European community, they have a provision of safe countries of origin, but there is an extremely stringent degree of criteria on human rights standards listed in it. We are all concerned that this provision allows the government to put commercial interests and political interests before lives and human rights.

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

I didn't ask you to go on about why you didn't like it. I read in your submission why you didn't like it. I'm trying to get at the point of ill-defined criteria. You didn't answer the question.

I will state, in case you were unaware, that designation, number one, is not automatic. There are quantitative thresholds involved in this. The rejection rate of the country has to be 75% or above. The rate of abandonment of applications has to be above 60%. With respect to those countries that have a low number of claims, we require, before we even go down that road, that they have an independent judicial system and that there is a recognition of basic democratic rights and freedoms.

Before we determine that a country should be designated, a review is triggered in which, number one, CIC, the minister, would conduct a review and consultations with other government departments, a number of whom sat at this table at the beginning of this process. Number two, we actually have in place a number of guidelines that would be followed in terms of the review process.

While you may not agree with the process, it's one that is going to be quicker. It's one that is going to be more transparent and it's going to be more consistent. It will include officials from different government departments at senior levels, including deputy ministers, assistant deputy ministers, and directors who have expertise in this area.

While I would submit that you have the right to disagree with the way Bill C-31 is going to move forward, I don't think you can actually argue that they are ill-defined criteria. It's important to point out that there are criteria set out to move forward.

Throughout your submission you indicate that there is not a right of appeal for those individuals who are determined to be from a designated safe country. I would like you to expand on that, because that's not, in fact, the case.

[Mitchell Goldberg]

I'm sorry. You just suggested that there's a right of appeal for people from designated countries of origin.

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

Right. I said designated safe countries of origin. You indicated that—

[Mitchell Goldberg]

That is false. Subclause 36(1) of Bill C-31 lists seven reasons, under proposed subsection 110(2), that refugee claimants will not get access to the refugee appeal division. Among those seven reasons are designated foreign nationals and people from designated countries of origin. It is there in black and white in subclause 36(1) of C-31. I'm sorry, but that's wrong.

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

Actually, no, that's—

[Mitchell Goldberg]

If you'll allow me to answer your question—

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

Wait. No, I did allow.

[Mitchell Goldberg]

You said a couple of things and I wanted to—

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

On a point of order.