Evidence of meeting #41 for Citizenship and Immigration in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was detention.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

  • Walter Perchal  Program Director, Centre of Excellence in Security, Resilience, and Intelligence, Schulich Executive Education Centre
  • Ward Elcock  Special Advisor on Human Smuggling and Illegal Migration, Privy Council Office
  • Donald Loren  Faculty, Centre of Excellence in Security, Resilience, and Intelligence, Schulich Executive Education Centre
  • Laurette Gauthier Glasgow  Special Advisor, Government Relations, Diocese of Ottawa, Anglican Church of Canada
  • Canon William Prentice  Director, Community Ministry, Diocese of Ottawa, Anglican Church of Canada
  • Lorne Waldman  Partner, Lorne Waldman and Associates, As an Individual
  • Furio De Angelis  Representative in Canada, Office of the United Nations High Commissioner for Refugees

May 7th, 2012 / 5:20 p.m.

NDP

Alain Giguère Marc-Aurèle-Fortin, QC

Thank you, Mr. Chair.

My question is for Laurette Gauthier Glasgow and has to do with clause 19.

We tried to determine the purpose behind this clause. We asked questions, but we did not get any answers. We would very much like to know what its purpose is. Take all the time you need to explain this to us. You are the perfect person to tell us just how detrimental this provision could be for those who will be subject to it, as well as how much this clause will affect them, people who have become our neighbours, who have children and who contribute to the community.

5:20 p.m.

Laurette Gauthier Glasgow

Mr. Giguère, we do indeed share your confusion with respect to the purpose that this clause will serve. We have absolutely no idea. The current legislation includes measures to deal with fraudulent cases or misunderstandings, so it isn't necessary to add anything. We really have no clue as to why it's there. However, we can envision two possible scenarios happening.

The first involves someone who travels on their passport of origin for humanitarian reasons, which are perfectly understandable reasons in our own families. That person risks being deported and losing their status, and that risk applies retroactively. We cannot figure out why the government has done this. We cannot see what they are trying to fix with this provision.

The second case involves a large number of refugees who are in Canada legitimately and whose situations received approval from the Office of the UN High Commissioner for Refugees. The government is our partner in that respect. And now, because their country is probably more democratic, the situation changes. Take, for example, the recent cases involving individuals from Rwanda and Burma. Those refugees—who would have to return to their countries—are being prevented from receiving Canadian citizenship. They would lose their status. We are hurting our own society.

Consider the case of four young girls living in Ottawa. They arrived from Rwanda, they went to school here, continuing on to post-secondary studies, and are making significant contributions to society. They are bilingual, trilingual and even multilingual. They will surely run for office, once they have obtained their citizenship. Are we going to tell them that they cannot become Canadian citizens, because things are better in Rwanda now? That is completely unfair.

5:25 p.m.

NDP

Alain Giguère Marc-Aurèle-Fortin, QC

My second question is for Mr. Waldman.

We have heard from a number of witnesses, and they have all said that the timelines set out in the bill were not realistic. People can't obtain documents, such as the results of medical assessments, in so little time. What do you make of those comments? Do you think the timelines set out for making a claim are appropriate?

5:25 p.m.

Partner, Lorne Waldman and Associates, As an Individual

Lorne Waldman

I'll have to speak in English; my French is not up to it.

The answer is no; obviously, I've already stated my view.

One, we do want a fast, expeditious process, but it has to allow reasonable timeframes. It has to allow reasonable timeframes to prepare the initial statement form and it has to allow for reasonable timeframes for claimants to bring in corroboration.

The other alternative is this. The way the law is now, the jurisprudence says that if a claimant doesn't bring in corroborating documents, medical reports, proof of detention, proof that he attended demonstrations, the board member can draw an adverse inference. If you want to shorten the timeframes, then put into the legislation a provision that says a member cannot draw adverse inferences from lack of documentation. Then you've created a balanced system.

Right now the way it is, you're creating a situation where it would be impossible for claimants to bring in the documentation but still allowing members to draw adverse inferences from the lack of documentation. It's completely unfair.

5:25 p.m.

Conservative

The Chair David Tilson

Merci.

Mr. Calkins, you're our guest, and we're giving you three minutes.

5:25 p.m.

Conservative

Blaine Calkins Wetaskiwin, AB

That's probably about two minutes more than I need, Mr. Chair.

All kidding aside, I am here as a guest today. It's the first time I've actually even subbed in on this particular committee. Obviously, I'm seized with the issue and I appreciate your being here.

Reverend Prentice and Reverend Gauthier Glasgow, I just want to say how much I appreciated your testimony. My grandmother was very strong in her faith as a Christian. She practised as an Anglican, and I had many occasions to visit our church in my hometown of Lacombe. She was a very interesting lady, very compassionate in her own right, but also very staunchly conservative in her views. I'm sure she would be having a similar conundrum in trying to reconcile some of the things we're discussing here today.

The question I have for you is one of where we can do the most good. From a global perspective, is it in the best interests with the limited resources that we have—and I'll get to resources with Mr. Waldman in a moment—and I've heard lectures from people on both sides of the issue, to be investing our capital and our time in a bureaucratic process here to bring a limited number of people here, and let's face it, it's a lot of people, but it's a very limited number of people who might otherwise need help throughout the world. Or, should we be using those resources to do more good, whether it's capacity building, governance building, democracy building, any of those other kinds of exercises around the world? If you could answer that, just from a 30,000-foot view, because we all want the same thing. We want to do what's right for humankind. We want to do what's in the best interest to elevate everybody's standard of living around the world.

Could you help us with that? Are those questions that you ask yourselves when you're doing this? We're spending a lot of time and effort talking about a select few people who come here to seek refugee status, and we're spending a lot of money trying to sort out this process. Is that the right thing to do, from a global perspective?

5:25 p.m.

Laurette Gauthier Glasgow

Perhaps I could reach back to a previous hat, because I spent 37 years in government doing government policy, 25 years of which I served as a diplomat.

How do you measure the impact on one life? I've seen transformation through a variety of things. I wonder if it's an either/or or an all-of-the-above situation. It's a bouquet of things. We have international assistance. We have capacity building. We've done that in so many areas, and we have to continue to do that. The church does that as well. We're helping refugees settle here. At the same time the Primate's World Relief and Development Fund is doing that also. I was just at their board meeting in Toronto last week.

We have refugee programs in Kenya, Egypt, India, Sri Lanka, Palestine, and the Middle East region. In other words, we're helping out there and asking how we can help them potentially move from where they are and resettle to their countries of origin.

I think it's all of the above. We have to find a way to always have our arms open. I don't think we could ever find ourselves in a situation of saying that none is too many. That is something that would be a shame.

5:30 p.m.

Conservative

The Chair David Tilson

You're finished, Mr. Calkins. It was nice having you for three minutes.

5:30 p.m.

Conservative

Blaine Calkins Wetaskiwin, AB

Well, I won't be back, Mr. Chair.

5:30 p.m.

Conservative

The Chair David Tilson

Oh, I'm sure you'll be back to get even.

Reverend Gauthier Glasgow, it was good to see you again, and Reverend Prentice and Mr. Waldman, thank you for your contribution to the committee.

We will suspend.

5:35 p.m.

Conservative

The Chair David Tilson

We will reconvene for the final panel of today.

We have witnesses now from the Office of the United Nations High Commissioner for Refugees. We have two participants from that organization, Mr. Furio De Angelis, who is a representative in Canada, and Michael Casasola, who is a resettlement officer.

Good afternoon to both of you.

Mr. De Angelis, you will have up to 10 minutes to make a presentation, and then there will be questions from the committee. Thank you for coming, sir.

5:35 p.m.

Furio De Angelis Representative in Canada, Office of the United Nations High Commissioner for Refugees

Thank you, Mr. Chair.

Mr. Chair, honourable members of the committee, ladies and gentlemen, the Office of the United Nations High Commissioner for Refugees, or UNHCR, welcomes the opportunity to comment before the committee on Bill C-31, the Protecting Canada's Immigration System Act.

UNHCR offers these comments on federal legislation further to the mandate entrusted to it by the United Nations General Assembly, in other words, to direct and coordinate international efforts to protect refugees around the world and to seek solutions to their problems.

UNHCR recognizes the strength of Canada's commitment to protecting refugees around the world, as well as the challenges that the country must address. Canada must ensure the sustainability of its system and maintain its high standards in protecting displaced individuals seeking asylum, while finding durable solutions within its borders.

The UNHCR written submission, a copy of which has been provided to this committee, provides our full comments and recommendations regarding Bill C-31.

My comments today will focus on selected provisions of the bill that will have the most significant impact on Canada's asylum procedures. These comments fall within two general themes: provisions that provide for the differential categorization of asylum seekers and provisions that have the effect of restricting access to the asylum process.

Regarding the designation of foreign nationals as irregular arrivals, UNHCR understands and shares the Government of Canada's concern about the need to combat people smugglers. Yet asylum seekers are often compelled to resort to smugglers to reach safety. The proposed designation of irregular arrivals may lead to an unwarranted penalization of those in need of international protection and, in effect, punish the victims of the smugglers or traffickers for having sought to escape persecution.

With regard to the grounds for designating someone as an irregular arrival, Bill C-31 will create two classes of asylum seekers and refugees in Canada based on the designation provision. Of particular concern is the designation for operational reasons.

Consequences of the designation that are of concern to UNHCR include mandatory detention without review for 12 months, no appeal rights, restriction on the issuance of convention travel documents—which may be at variance with article 28 of the 1951 convention—reporting requirements despite the granting of convention refugee status, and the five-year bar on regularizing status and its implications for family unity.

UNHCR recalls that the principle of family unity is enshrined in international law. The UNHCR executive committee, of which Canada is a founding member, has underlined on several occasions the need for the unity of the refugee's family to be protected. From a non-discrimination point of view, UNHCR does not believe that the grounds for designation as irregular arrivals provide a legitimate justification for a substantially differentiated treatment. The legislation may be at variance with human rights-based non-discrimination guarantees contained in international human rights instruments.

UNHCR's long-standing position has been that the detention of an asylum seeker is inherently undesirable. The situation of asylum seekers differs fundamentally from that of ordinary immigrants in that asylum seekers may not be in a position to comply with the legal formalities for entry, not least because of the urgency of their flight or their inability to approach authorities. Article 31 of the 1951 convention takes this situation into account and prohibits penalties being imposed on refugees on account of their illegal entry or presence.

The United Nations Human Rights Committee has noted that for detention to be lawful, it must pursue a legitimate governmental objective that it is determined to be necessary, reasonable in all circumstances, and proportionate in each individual case, and that detention can only be justified where other less invasive and coercive measures have been considered, and that mandatory and non-reviewable detention is unlawful as a matter of international law.

In UNHCR's view, the relevant provision of Bill C-31 as currently drafted would be at variance with several international standards. For these reasons, UNHCR strongly recommends that the government refrain from introducing a mandatory detention regime for irregular arrivals in relation to refugees and asylum seekers, and that alternatives to detention be explored.

Regarding designated country of origin, 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 the examination of applications in carefully circumscribed situations.

The designation of a country as a safe country of origin cannot establish an absolute guarantee of safety for nationals of that country. It may be that despite general conditions of safety in the country of origin, for some individuals the country remains unsafe.

It is important than an assessment of countries of origin as safe is based on reliable, objective, and up-to-date information from a range of sources. One way of achieving transparency and quality decision-making could be by ensuring that the designation is done by a panel of experts.

I now wish to turn to measures that UNHCR fears may restrict access to the asylum process.

Regarding the restriction of access on asylum on criminality grounds, in UNHCR's view asylum applications should not be considered inadmissible unless the individual concerned has already found effective protection or access to an asylum procedure in another country.

UNHCR has already expressed its views in the past over exclusion elements being examined under the heading of ineligibility or inadmissibility to the refugee proceedings. Our submission to this very committee on March 5, 2001, which set out the office comments on the Immigration and Refugee Protection Act, remain valid. UNHCR is of the opinion that exclusion from refugee status on criminality grounds should be considered in accordance with article 1F of the 1951 convention, within the assessment to determine the merits of the claim, rather than at the admissibility or eligibility stage.

Regarding shortened time limits under the new asylum process, UNHCR supports efforts by government authorities to decide applications in a timely manner. However, states need to balance efficiency with the fairness of the procedure. Overly restrictive timeframes in the context of a sophisticated asylum process can lead to increased rates of abandonment and the rise of a number of unrepresented claimants. Asylum claimants do not ordinarily have the knowledge to navigate the legal system. Even where a client retains counsel, enough time needs to be allowed for applicants to apply for legal aid and to find a counsel. The consequence of abandonment are, in effect, a final, negative decision, as there is no right to an appeal or access to a pre-removal risk assessment for one year after the negative decision. In this respect, appropriate resources should be allocated towards creating, maintaining, and supplementing legal services for asylum seekers.

Regarding the refugee appeal division, UNHCR welcomes the implementation of the RAD; however, it would recommend that an appeal be available to all claimants. The right to appeal is a fundamental requirement of a fair and efficient asylum procedure, to which no exception should be made. At the core of the 1951 convention principle lies the principle of non-refoulement, whereby those with protection needs cannot be returned to a place where they will be at risk of persecution. The purpose of a second review through an appeal mechanism is to ensure that errors of fact or law, at the first instance, can be corrected to avoid injustice and to ensure respect for the principle of non-refoulement.

Regarding restricted access to the pre-risk removal assessment and to humanitarian and compassionate applications, pre-removal risk assessments and humanitarian and compassionate applications are important safeguards against the deportation of persons who are not recognized as refugees according to the law, but who are still in need of international protection. In particular, given that many categories of asylum seeker will not have access to an appeal under the RAD, the availability of such mechanisms are all the more important to maintain as a procedural safeguard.

Regarding the reopening of a refugee claim, UNHCR maintains that claims for protection should be reopened when new evidence comes to light, including situations where there has been a breach of natural justice, to allow for the claim to be re-examined in its entirety, and recommends that the jurisdiction of the RPD and the RAD to reopen claims be affirmed.

Regarding the cessation of refugee status, the proposed amendments in the bill to bar the appeal against a negative decision on cessation of refugee status, leading to subsequent possible revocation of permanent resident status, will result in a state of uncertainty for many refugees, including resettled refugees, and thus will undermine the durable nature of the resettlement solution. UNHCR recommends the decision on cessation should be subject to appeals and should not automatically bar access to or revoke permanent resident status.

Finally, regarding the disclosure of information, in the context of refugees and asylum seekers, UNHCR recommends that appropriate safeguards be introduced in the text of Bill C-31 to avoid the transmission of biometric and other information, either directly or through a third party, to countries of alleged persecution.

Chairman Tilson, honourable committee members, ladies and gentlemen, I thank you.

5:45 p.m.

Conservative

The Chair David Tilson

Thank you, Mr. De Angelis.

Mr. Dykstra has the floor.

5:45 p.m.

Conservative

Rick Dykstra St. Catharines, ON

Thank you, Mr. Chair.

I'm going to take a couple of rounds here so that everybody can get settled in, I think.

With regard to one point you made in terms of alternate methods to deal with the issue of detention, would you have a suggestion as to how to do that? Our concern obviously is that a number of the individuals who, for example, were on the Sun Sea or the Ocean Lady, had issues with respect to criminality or issues with respect to war crimes.

The concern we have, obviously, is that the alternative to detention shouldn't mean that an individual or individuals have easy access to the streets of our country without ensuring the safety of the residents and the citizens of Canada.

5:45 p.m.

Representative in Canada, Office of the United Nations High Commissioner for Refugees

Furio De Angelis

According to international standards, detention in the asylum process is permissible. This is regulated by ExCom 44 of the executive committee. As you know, the executive committee is the governing body of UNHCR, which approves the budget of the organization, and also issues conclusions that are guidance, direction, on international protection to UNHCR. The executive committee...which, of course, Canada is a founding member.

There are situations for which detention is permissible for a period of time under certain circumstances, for situations that may need to be investigated with respect to identity, with respect to a situation where applicants, for instance, destroy their documentation, their identity documents.

So this is a system that is there to guarantee that a situation like the one you are referring to, in terms of criminality, may be assessed and analyzed. The alternative to detention is a mechanism that would also allow people who do not belong to the category of a possible threat, or the possible need to be investigated, to be allowed to be released in a situation as an alternative to closed detention.

This is something—