Bill C-280 (Historical)

An Act to Amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171)

The purpose of this enactment is to ensure that sections 110, 111 and 171 of the Immigration and Refugee Protection Act come into force on the day on which this enactment receives royal assent.

Immigration and Refugee Protection Act

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, it is a great pleasure to participate today in the debate on Bill C-280, An Act to Amend the Immigration and Refugee Protection Act . I want to again thank the member for Laval and the member for Vaudreuil-Soulanges for their efforts in bringing this legislation forward.

Earlier the member for Laval called this a strange a strange bill. It is indeed a strange bill, a bill to implement legislation that has already been fully debated and passed in the House and in the other place, but the government has failed to implement it. This bill should not be necessary. This action should have been taken years ago when the Immigration and Refugee Protection Act was passed in 2001 and the legislation was implemented. The fact that it has not is a very serious problem.

I agree with the former chair of the Immigration and Refugee Board, Peter Showler, who called it “profoundly undemocratic” that this place could debate and develop a compromise on the refugee appeal process that saw a two-member board reduced to a one member board, but that a refugee appeal division was added to ensure that mistakes, caused because only one person was hearing a refugee claim, could be addressed. The fact that the refugee appeal division has not been implemented is undemocratic. It is also a real blow to justice and fairness in Canada.

Regarding the UNHCR, we have heard a number of times this morning that Canada has an excellent reputation when it comes to refugee resettlement work, and that is true. In 1986 the United Nations High Commissioner for Refugees awarded Canada the Nansen Medal for our refugee work, and we are the only country to have been recognized as a country. Usually that award goes to individuals for their work with refugees.

We have been recognized in the past for our outstanding contribution, and that continues.

I should also point out that the UN High Commissioner for Refugees also criticized Canada when it came to the failure to implement an appeal process for refugees, the refugee appeal division. I want to quote from the UN High Commissioner who said:

UNHCR considers an appeal procedure to be a fundamental, necessary part of any refugee status determination process. It allows errors to be corrected, and can also help to ensure consistency in decision-making. Canada, Italy and Portugal are the only industrialized countries which do not allow rejected asylum seekers the possibility to have first instance decisions reviewed on points of fact as well as points of law. In the past, a measure of safeguard was provided by the fact that determinations could be made by a two-member panel, with the benefit of the doubt going to the applicant in case of a split decision. With the implementation of IRPA on June 28th, this important safeguard will be lost.

That is a direct criticism of the failure of the Canadian government to implement the refugee appeal division. She pointed out how necessary this division was given the changes made in the process under IRPA in 2001.

There have been many criticisms of this legislation. One of them has been the cost of doing this. I submit that the cost is relatively small given the overall immigration and refugee budget in Canada. The former Liberal government estimated a $2 million start-up cost and $8 million a year to operate the refugee appeal division, which is a paper appeal process. More recently, officials from the IRB and the Conservative government have said that the start-up cost would be more like $8 million and a $6 million to $8 million a year operating cost. That is fairly negligible in terms of the process.

Another criticism has been that the process is already too complicated. We heard that again from the member for Fleetwood—Port Kells. She said that there were too many stages in the refugee determination process and that the refugee appeal division was an impediment to streamlining. The lack of a refugee appeal division is an impediment to justice and fairness in our refugee process. The huge impediment to streamlining is the behaviour of the current government, especially around appointments and reappointments to the IRB itself, and I will have more to say about that in a few minutes.

Coming back to what the member for Fleetwood—Port Kells said this morning, I found her speech distressing in one important way. She was quick to criticize the official opposition for the position of former Liberal ministers of citizenship and immigration who did not support the implementation of the RAD. That is a valid criticism of the position that they took, but I want to criticize the member for Fleetwood—Port Kells because when she was a member of the Standing Committee on Citizenship and Immigration in the last Parliament, she was part of a unanimous decision to call for an immediate implementation of the refugee appeal division.

Suddenly, now that her party has become government, it seems she has picked up the speaking notes of the former Liberal ministers and is now reading them almost verbatim into the record. At least that is what it sounds like. She is saying that somehow it would be a problem to implement the RAD, whereas not so long ago she was part of a unanimous committee decision, as were a number of other Conservative members, calling for the implementation of the RAD. I think that some of the criticism that she was levelling at the official opposition and the former minister should land right back in her own lap.

There are very valid reasons for implementing the refugee appeal division just on its own. François Crépeau, Professor of International Law at the Université de Montréal and Canada Research Chair in International Migration Law, has made four points about why the refugee appeal division is indispensable for the smooth functioning of the Canadian refugee determination system.

His first point is:

In the interests of efficiency: a specialized appeal division is a much better use of scarce resources than recourse to the Federal Court, which is not at all specialized in refugee matters. It would be much better placed to correct errors of law and fact and to discipline hearing room participants for unacceptable behaviour.

His second point is:

In the interests of consistency of law: an Appeal Division deciding on the merits of the case is the only body able to ensure consistency of jurisprudence in both the analysis of specific facts and in the interpretation of legal concepts in the largest administrative tribunal in Canada.

His third point is:

In the interests of justice: a decision to deny refugee status is generally based on an analysis of the facts, often relies on evidence that is uncertain and leads to a risk of serious consequences (death, torture, detention, etc.) As in matters of criminal law, a right to appeal to a higher tribunal is essential for the proper administration of justice.

His last point is:

In the interests of reputation: as a procedural safeguard, the Refugee Appeal Division will enhance the credibility of the IRB in the eyes of the general public, just as the provincial Courts of Appeal reinforce the entire justice system. The IRB's detractors--both those who call it too lax, and those who call it too strict--will have far fewer opportunities to back up their criticisms and the Canadian refugee determination system will be better able to defend its reputation for high quality.

Those points that Professor Crépeau has made are very important ones that show how the RAD is important to improving the refugee determination system and improving the reputation of the refugee determination process in Canada.

I think it is fair to say that the Immigration and Refugee Board is currently in a crisis and I want to talk a little about that crisis. We know that over one-third of the places on the board are vacant. Those positions have not been filled. The members of the Conservative government have not taken recommendations for appointments to those boards and have not made reappointments of people who have served on the board.

The former chair said that this has caused 300 years of experience to be lost from the board. The backlog is going up by 1,000 cases a month at the IRB. The backlog was down to 19,000. The chair figured that 15,000 was a good working level for the board. It is now up to 24,000 or 25,000. That is completely unacceptable.

That crisis has been entirely created by the government. It is the government's own creation because it has refused to make appointments and reappointments. This cannot be tolerated. Our refugee determination system is in crisis. This situation has to come to an end. Those appointments need to be made. We must also get on with implementing the RAD. It is the right thing to do.

[Omar Alghabra, Liberal, Mississauga—Erindale, ON]

Mr. Speaker, I am pleased to speak, for the second time, to private member's Bill C-280, An Act to Amend the Immigration and Refugee Protection Act.

Bill C-280 is an act that is intended to reaffirm some of the clauses that already exist in the Immigration and Refugee Protection Act by calling for the establishment of an appeal mechanism for failed refugee claimants. This is the final debate on the bill before its third and final vote in the House. I continue to support it and hope that it becomes law.

As I mentioned before, Canada has a long tradition and a compassionate history of receiving refugees from around the world. These people are escaping unfair persecution and severe injustices and are seeking a peaceful new life and a promising future for themselves and their families. Canadians recognize that welcoming legitimate refugees is not a feel good exercise, but the right and moral thing to do for a country that believes in the principles of equality, fairness, opportunity and justice.

Also, a privileged country such as ours has obligations under international treaties to contribute to providing relief in the global refugee crisis. Canada is one of the very few countries in the world that has made a conscious decision to take every refugee claimant very seriously. Claimant applications are first reviewed by the Immigration and Refugee Board, IRB, a quasi-judicial refugee board, where each case is examined based on its own merit and circumstances.

Prior to 2001, the backlog of refugee claimants was rising considerably and there were many calls to reform the system. The previous Liberal government recognized the magnitude of this challenge and confronted those needs head-on. Steps to reduce political interference were taken and measures to improve efficiencies were adopted.

One component of those reforms was to reduce the number of board members who adjudicated each claim from two to one. In exchange, an appeal division was proposed to ensure that a second opinion would not be lost by reducing the number of adjudicators to one. This measure was reached after conducting extensive consultations with experts, stakeholders and refugee organizations.

The new appeal is only a paper appeal and would not allow for new evidence to be submitted. It is intended to ensure that any failed refugee claimant is given a second look before a final decision is made. Though the new Immigration and Refugee Protection Act was passed in 2001, the refugee appeal division has not yet been put into practice.

Understandably, there are some administrative challenges to implement it, but that is not unusual when reforms are to be adopted. The decision to accept or reject a refugee applications is extremely seriously. It must examine the reality and the merit of the application in an objective and thoughtful way.

These procedures could have life or death consequences and we as a country have accepted our responsibility in affording fairness and justice to all applicants. By proceeding with this appeal mechanism, we can ensure that our responsibility as a government and a country has been fulfilled in a just and verifiable way to the people who seek our help.

Instead of building on improvements that the previous Liberal government and the IRB have made over the last few years, the Conservatives have unfortunately chosen to set the clock back and weaken the system.

After years of progress, the backlog of refugee claimants has more than tripled in less than a year and a half under the watch of the Conservatives. The process to select the IRB is being politicized and the chair of the IRB, Mr. Jean-Guy Fleury, who is known for his honourable 40 years of public service, has resigned in protest.

The attempt by the Conservatives to inject their ideology and political agenda into the IRB has caused so much paralysis that we now have a crisis. The Standing Committee on Citizenship and Immigration prepared an extensive report that was the culmination of a comprehensive study on the status of refugee matters in Canada. The report, entitled “Safeguarding Asylum—Sustaining Canada's Commitment to Refugees”, contains informative findings and thoughtful recommendations. I urge everyone to take a look at it when it is tabled.

One of the many constructive recommendations included in this report is to urge the government to act quickly to implement the appeal division. This matter requires urgent action.

I support conducting a comprehensive overhaul of the refugee processing system that must include an accessible and fair appeal process. Currently the system is convoluted and multi-layered. The lack of appeal and efficiency compels failed claimants to seek out legitimate and sometimes illegitimate methods in order to remain in Canada.

By strengthening and streamlining our application process, we can ensure that fewer people opt to appeal to Federal Court, which costs taxpayer money and clogs up our courts.

It is worth noting that the Conservative Party has been exhibiting very little compassion and understanding with regard to the real humanitarian issues of immigrants and refugees. While the Immigration and Refugee Protection Act can benefit from a comprehensive review and modernization, the Conservatives are busy flexing their muscles at vulnerable undocumented workers.

While the Citizenship Act is in need of fundamental re-examination and it appears that thousands of Canadians are at risk of losing their citizenship because of old flaws, the Conservatives are busy reviewing the issue of dual citizenship, attempting to make Canadians feel guilty if they hold dual citizenship.

Not surprisingly, just like we see them behave on most files, the Conservatives appear to be at odds with what is needed and what Canadians expect of them.

I will be voting in favour of Bill C-280. The Standing Committee on Citizenship and Immigration examined the legislation and approved its objectives. This bill is not asking us to introduce anything new or change our procedures drastically. It is only reaffirming what is already in our legislative books. There are probably many reasons why these clauses have not yet been applied, but it is hard to deny the intent and the objective of this bill.

Stakeholders and human rights advocates have been calling for the need to strengthen and reform our refugee application examination process. This step will further enhance the transparency and credibility of our system.

I call upon my colleagues across all party lines to vote in favour of the bill. In a country where we pride ourselves in championing justice and equality we must turn our back on implementing a process that would ensure the application of justice.

Not only do we want to pursue the application of justice, but we also must be seen to do everything we can in that pursuit.

I want to remind my colleagues that a strong, efficient, transparent and fair refugee claims process is not only the right thing to do, but it is good for the safety of our country, good for the well-being of our citizens and is prudent when it comes to spending our tax dollars. It is the least we can do for people who are escaping persecution or tragic conditions and are seeking a better life for themselves and their families.

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

Mr. Speaker, I am pleased to rise today on behalf of the constituents of Fleetwood—Port Kells to participate in third reading debate on Bill C-280.

I would first like to say for my hon. colleagues and all Canadians that as a country we should take pride in our humanitarian and compassionate nature. Canada has welcomed thousands of refugees over the years and has helped them to settle so they could contribute to the economic, social and cultural enrichment of our great country.

Indeed, the government welcomed over 32,000 refugees last year, including, recently, over 750 Karen refugees from Myanmar, with hundreds more to come in the next two years. We also raised by 500 people the target for privately sponsored refugees, bringing it up to 4,500 for 2007.

I am proud to say that we are living up to our reputation when it comes to providing refugee protection to those in need. There can be no doubt that Canada meets and has surpassed its international commitments.

Canadians have a right to be proud of our humanitarian tradition, but we also recognize that we must have in place a refugee determination system that is fair and consistent in its application of the rules. That is why I rise today to repeat that the government is opposed to the private member's bill tabled by the hon. member for Laval.

Once again I ask my hon. colleagues to question the need for an appeal in the context of all the recourses offered by the refugee determination system as a whole. Implementing this legislation would be unfair to refugees as it would add months to the process.

While our in-Canada refugee determination process is fair and even generous, many have said that it is already complex, slow and costly. As we deal with these realities, we must also ensure that we are able to help individuals who really need protection.

I will outline the steps once again. First, applicants have access to the refugee protection division of the Immigration and Refugee Board or IRB. If their claim is refused by the IRB, they can apply for a pre-removal risk assessment. Should the pre-removal risk assessment be unsuccessful, failed refugee claimants can apply to stay for humanitarian and compassionate reasons, including for reasons of risk.

We do not see any practical reason to make this process any longer by adding a fourth layer of review.

There are currently three members of the official opposition who at one time served as ministers of citizenship and immigration. How about if we ask them for their views on this matter? The former Liberal minister of immigration, the member for Eglinton—Lawrence, said:

--the Refugee Appeal Division, which was proposed by the committee and accepted in Parliament, was an additional impediment to streamlining the process...we hardly needed that mechanism.

That is quite the statement, but there is more. The former Liberal immigration minister went on to say:

I might remind the House that all failed claimants can make an appeal to the federal court. They are also subject to a pre-removal risk assessment and have applications for [humanitarian and compassionate] in the process.

I refer to a specific case just this last year: a country from Central America, 2,000 applicants and 99% of them were refused. Would she have those 99% clogging up the system that she abhors?

Not only are former Liberal ministers making these comments, but the current official opposition critic for citizenship and immigration, the member for Mississauga—Erindale, said recently in the Toronto Star that the current refugee process takes too long and allows “bogus refugees...to stay longer, with potential implications for Canadian security”.

So we have former ministers saying the refugee process takes too long and the current Liberal immigration critic saying the refugee process takes too long, yet here we are with the Liberal Party supporting a bill that would increase the length of the process by adding an unnecessary layer to the system. If that is not a prime example of someone trying to suck and blow at the same time, I am not sure what is.

The opposition cannot have it both ways. Either the system takes too long or it does not. If it does, then the Liberal leader and caucus should take the advice of the former immigration ministers and refuse to support Bill C-280. If the Liberal opposition believes that the current refugee process is taking too long, it does not make any sense that it would extend the process by voting in favour of Bill C-280.

The hypocrisy from the opposition on this issue is breathtaking. Implementing sections of the RAD would add more time to a process that many consider long enough. It would also presume that the current safeguards intended to ensure that no one at risk is removed, including the judicial review process at the Federal Court and the pre-removal risk assessment, were not functioning as they should.

Let us consider the individuals who have been in the system for years. How do we make the system fairer and more just by adding yet another layer to the review process?

In addition to questioning the addition of a fourth recourse to the refugee system, we must also consider the lack of transition provisions in Bill C-280, which raises questions. For example, we must ask ourselves, who would be eligible for this new level of appeal? Would it apply to individuals whose cases were heard since the IRPA came into force in 2002? Or would only new cases be eligible? What would be the rule for cases currently before the Federal Court?

Who would hear cases sent back by the court? Would it be the refugee protection division or the refugee appeal division? This is not to mention that creating a backlog of cases for the inexperienced RAD would cause further delays.

As members of the government have said, the current refugee system includes many steps for both accepted and failed refugee claimants.

Assuming that the RAD would be given a new start without any backlog from day one and that fully trained decision makers with the necessary qualifications would be appointed, implementing the RAD would add at least another five months to an already long refugee process.

As for the alternative, we must ask ourselves, what are the risks of saddling the new appeal division with a large backlog which would cause a further increase in processing delays in the refugee system?

As I have said, currently those who are successful go through a minimum of three steps: an eligibility decision by the Department of Citizenship and Immigration or the Canada Border Services Agency; a merits decision on the claim by the IRB; and an application for permanent residence by CIC. It often takes upward of three years from the time of the claim to being accepted as a refugee and obtaining permanent residence.

Current research suggests that most failed claimants go through at least four separate processes: an eligibility decision; a merits decision; an application for leave to seek judicial review at the Federal Court; and a pre-removal risk assessment. As I have said, many failed refugee claimants also make an application for permanent residence on humanitarian and compassionate grounds.

Ultimately, it takes years before failed refugee claimants can be removed from Canada. Canadians would have every right to question whether yet another layer of appeal would make the system any fairer and more just, especially when they see that many people have been in the system for years and years.

Will creating more layers enhance what is already regarded as one of the most generous refugee systems in the world? No.

Is there a legitimate reason to implement the RAD at this time? As the former Liberal ministers of citizenship and immigration would say, no.

Canada's refugee determination system meets all legal requirements, provides protection to all who need it and provides a number of opportunities for decisions to be reviewed. Adding yet another layer and delaying the process even further is not fair to refugees and their families, who count on an efficient and timely determination process so they can get on with building their lives.

I am happy to see that the former Liberal ministers of immigration agree with our government's position on this issue. My only hope is that the leader of the Liberal Party and the Liberal immigration critic, the member for Mississauga—Erindale, will actually consult with them before the next vote on this important issue.

[Nicole Demers, Bloc, Laval, QC]

moved that Bill C-280, An Act to Amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171) be read the third time and passed.

Mr. Speaker, this is the third reading of this bill, which I was proud to introduce on behalf of the Bloc Québécois. Originally, the bill was sponsored by my colleague from Vaudreuil-Soulanges, the Bloc's immigration critic. The reason we have had to introduce this bill, and this is true for a number of bills and motions introduced by the Bloc Québécois, is because things are truly absurd in this House, and the Refugee Appeal Division—which is part of legislation that has already been passed—has not yet been implemented. So, passing this bill will make it possible for sections 110, 111 and 171 of the Immigration and Refugee Protection Act, the three sections that have to do with the Refugee Appeal Division, to take effect.

While it is absurd to have to pass legislation to ask that specific sections of another piece of legislation come into force, this should not come as a surprise. From day one, the Bloc Québécois has stood up for the most vulnerable in society and made a point of vigorously defending the interests of all those citizens who do not have a voice and are unable to defend their interests themselves.

We have come to the conclusion that we should introduce a bill to implement the refugee appeal division after many people, individuals, groups or representatives asked us repeatedly to put a bill together to put an end to this absurd situation. We have done so very thoroughly and with great pleasure.

As I indicated, we have sought the assistance of many. My colleague, the whip of the Bloc Québécois, alluded earlier to relevancy. We are always very careful to be relevant in making requests. I could point out today that the Canadian Council for Refugees has been of great assistance to us in explaining the many ways in which the refugee appeal division is essential. I will mention a few.

Why is an appeal division necessary? The stakes are high. Refugee determination is one of the few decision making processes in Canada where a wrong decision can mean death for the applicant. Even though the stakes are so high, there are fewer safeguards in the system than for other decision making processes where the stakes are much lower—for example, a minor criminal offence. As a result, wrong decisions go uncorrected.

Decision making is inherently difficult. Refugee determination is extremely difficult because it involves deciding what may happen in the future in another country, about which the decision maker may have limited knowledge, based often on testimony that must pass through an interpreter and that may be confusing because of the traumatic experiences that the claimant has lived through. Often decision makers have little documentary evidence that can help decide the case one way or the other, and the credibility of the claimant is a decisive factor. However, credibility assessments can easily be wrong.

Another reason is that not all decision-makers are equally competent. For many years, appointments to the Immigration and Refugee Board have been made in part on the basis of political connections, rather than purely on the basis of competence. As a result, while many board members are highly qualified and capable, some are not. The problem was recognized by the former Minister of Citizenship and Immigration who announced a reform of the appointment process in spring 2004. While this is a positive development and may mean future improvements, in the meantime board members appointed under the old political patronage system continue to decide on the fate of refugee claimants.

Another reason to support this bill is that decision-making is inconsistent. Refugee determination involves a complex process of applying a legal definition to facts about country situations that can be interpreted in different ways.

Different decision-makers do not necessarily come up with the same answer, leading to serious inconsistencies. Two claimants fleeing the same situation may not get the same determination, depending on which board member they appear before. This was the case with two Palestinian brothers who had the same basis for their refugee claim, yet one was accepted and the other refused.

I had the privilege, together with my colleague from Vaudreuil-Soulanges, of meeting a refugee claimant who experienced that very situation. Someone he knew had gone through the same experience he had. The person he knew was accepted as a refugee, but he, himself, has sought sanctuary in a church for almost two years now. That is not right.

Poor representation is another reason. Refugee determination is made more difficult because refugee claimants sometimes have no legal representative, or are represented by incompetent and unscrupulous lawyers and consultants. How many times have we had to deal with people who have been wronged and deceived by others who claimed to be competent lawyers and who claimed to be able to help when nothing could be further from the truth? They did not help; in fact, they made things worse in order to make their money at the expense of very vulnerable people.

This problem is quite common because refugee claimants rarely have much money to pay for a lawyer. In some provinces, legal aid is unavailable to claimants, and in others, the aid is so meagre that few competent lawyers are willing to represent claimants on legal aid.

Any decision-making process will involve mistakes. As human beings, we are all bound to make mistakes from time to time, however hard we try. An effective system recognizes this and provides a mechanism to correct errors. We do this in the criminal justice system, which allows anyone who feels they have been wrongly convicted to appeal the decision. We try to avoid people being wrongly sent to jail here in Canada by providing appeals. Why would we not similarly try to avoid refugees being wrongly removed, which could result not only in their being jailed, but tortured and even killed?

There is one more reason. Non-implementation shows disrespect for the rule of law. Parliament approved a law that included a right to an appeal on the merits for refugee claimants. This right was balanced by a reduction in the number of board members hearing a case from two to one. During debate, there was never any suggestion that the implementation of the appeal would be indefinitely delayed and there is no indication that Parliament would have passed the law if the government had proposed it as it is now being implemented.

For these very obvious and valid reasons, I would ask all my colleagues to reflect very carefully when deciding how they will vote on this matter. We feel this bill should be passed and adopted by all the members of this House, and we are not the only ones to think so. Amnesty International recently released a report that criticizes the Canadian government's failure to respect these agreements and the decisions of Parliament.

It would be a disgrace to not be able to meet the needs of these men, women and children, of all these vulnerable people. Some of these families have been here long enough to integrate very well. Some individuals are working or in school, some are involved and engaged in their communities and civil society. There is every indication that they are exemplary citizens. If we do not adopt this bill, in the near future these individuals may be forced to return to a system of terror and to a country where they may be beaten, silenced, imprisoned or even killed.

I am convinced that most of the members of this House would not wish this on anyone. I am convinced that if someone in our family had to suffer what most refugees are subjected to in their countries, we would realize the importance of this bill and we would vote in favour of it.

Bill C-280—An Act to Amend the Immigration and Refugee Protection Act—Speaker's Ruling

[The Speaker, Liberal, Peter Milliken]

The Chair is now prepared to rule on a point of order raised by the Parliamentary Secretary to the Government House Leader and Minister responsible for Democratic Reform on May 3, 2007 in relation to Bill C-280, An Act to Amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171), standing in the name of the hon. member for Laval.

In his submission, the parliamentary secretary explained that Bill C-280 proposed to change the manner in which provisions of the Immigration and Refugee Protection Act would come into effect. That act was amended in 2001 by Bill C-11, which contained a clause, clause 275, providing that:

The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.

This sort of clause is frequently found in bills and is commonly known as the “coming into force clause”.

Some provisions of Bill C-11 have yet to be proclaimed by the governor in council. Bill C-280 proposes to have three such provisions, namely sections 110, 111 and 171 of the act, brought into effect immediately upon royal assent of Bill C-280, and not by way of proclamation to be determined by the governor in council.

The parliamentary secretary noted that the substantive effect of implementing sections 110, 111 and 171 of the act would be to establish the refugee appeal division at the Immigration and Refugee Board and that this would entail significant new expenditures of an administrative nature. He then went on to explain that through its coming into force clause, Bill C-11 gave the governor in council the power to determine at what time the division would be created and the associated expenditures would be incurred.

The parliamentary secretary contends that by changing the coming into force of these sections of the act, the terms and conditions of the royal recommendation accompanying Bill C-11 are being altered. He read from citation 596 of Beauchesne's sixth edition, which explains that the royal recommendation not only fixes the amount of an expenditure but also the way that it would be incurred.

He went on to cite two precedents from 1985 and 1986 to support his arguments that Bill C-280 should therefore be accompanied by a new royal recommendation.

The Chair has examined the two precedents cited by the parliamentary secretary in support of his basic argument that an alteration in the coming-into-force provisions of a bill infringes on the financial initiative of the Crown.

The first precedent, in 1985, concerns a report stage motion to Bill C-23, an act to amend the Small Business Loans Act. The bill sought, among other things, to restrict to 90% the amount of loss sustained by the minister for loans made to small business enterprises after March 31, 1985. The report stage motion sought to maintain the existing law and make the minister liable for the full amount of the loss. On March 26, 1985, Mr. Speaker Bosley ruled the amendment inadmissible because it relaxed a condition of the royal recommendation.

The second precedent, in 1986, concerns an amendment put forward during consideration in committee of the whole of Bill C-11, an act to amend the Income Tax Act. The bill sought to allow the prepayment of a child tax credit in the following taxation year. The amendment would have permitted the prepayment during the greater part of the current taxation year. In ruling the amendment inadmissible on October 17, 1986, the chairman of the committee of the whole simply explained that the proposed amendment infringed on the royal recommendation.

While these precedents may be useful in understanding how programs may be limited or extended in their application, they do not assist us in better understanding the issue at hand.

The fundamental issue in the present case is whether the coming-into-force provision of an act which was originally accompanied by a royal recommendation can be altered without a new royal recommendation.

After considerable reflection on the matter, the Chair would present the situation as follows.

In 2001 Bill C-11 sought an authorization from Parliament to establish the refugee appeal division. As I see it, the action of setting up the statutory framework for the new division required that a royal recommendation accompany Bill C-11 because a new and distinct authority for spending was being requested.

As it happened, Bill C-11 also contained a coming into force provision which would allow the governor in council to decide when the refugee appeal division would be formally established. In the view of the Chair, it is very important to remember that even after the governor in council proclaims the establishment of the division, Parliament would still have to approve spending plans for its operations through the estimates and the subsequent appropriation act.

In this light, therefore, it appears to the Chair that the chief financial components which require a royal recommendation are: first, authorization for setting up the statutory framework for the refugee appeal division, duly provided by Bill C-11 with its original royal recommendation; and the operational funding to be sought in a future appropriation act where financial authority can be duly provided in the usual estimates process.

Although the proclamation of the coming-into-force provision will set into motion the establishment of the refugee appeal division, it should be seen as independent of the royal recommendation and not part of its terms and conditions.

Our rules and practices hold that coming into force clauses of bills have always been open to amendment and a vote. If we were to accept the argument that an alteration in the coming into force provision would somehow infringe upon the royal recommendation, then it should not be admissible for a committee or the House to negative or amend such a clause unilaterally. Such is clearly not the case.

Essentially, it is a question of timing. The royal recommendation originally attached to the bill applies, unaltered, to its provisions irrespective of the point in time at which such provisions come into force and, from a procedural standpoint, the alterations to the coming into force provisions of the Immigration and Refugee Protection Act, as expressed in Bill C-280, cannot be seen as infringing on the financial imitative of the Crown.

Consequently, Bill C-280 may proceed for debate and a vote at third reading.

I think that the hon. Leader of the Opposition wishes to rise on a question of privilege.

Immigration and Refugee Protection Act

[The Deputy Speaker, NDP, Bill Blaikie]

The House will now proceed to the taking of the deferred recorded division on the motion at report stage of Bill C-280 under private members' business.

The House proceeded to the consideration of Bill C-280, An Act to Amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171), as reported (without amendment) from the committee.

Bill C-280--Immigration and Refugee Protection Act

[Nicole Demers, Bloc, Laval, QC]

Mr. Speaker, I listened as my colleague from across the way tried to put up a roadblock to Bill C-280. However, Bill C-280 is not an amendment to Bill C-11. We only ask for implementation. Bill C-11 already received royal assent. It has been voted on and studied. We only ask for the implementation of a measure included in Bill C-11. I do not see where the problem lies.

In concluding, I reserve the right to speak again to the issue.

[Tom Lukiwski, Conservative, Parliamentary Secretary to the Leader of the Government in the House of Commons and Minister for Democratic Reform]

Mr. Speaker, before I begin my point of order I must say that while I recognize I am raising this point of order today, I also recognize the fact that a ruling by yourself will not be made before third reading debate takes place on Bill C-280.

It is on Bill C-280 that I rise today. Without commenting on the merits of the private member's bill, I would appreciate your consideration, Mr. Speaker, on whether Bill C-280, An Act to Amend the Immigration and Refugee Protection Act, requires a royal recommendation under Standing Order 79.

The Immigration and Refugee Protection Act was adopted as Bill C-11 by the 37th Parliament and received royal assent on November 1, 2001. Bill C-11, which was accompanied by a royal recommendation, specified in clause 275 that:

The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.

Bill C-280 seeks to amend section 275 of the Immigration and Refugee Protection Act to stipulate that, despite the coming into force provisions adopted in 2001, sections 110, 111 and 171 would come into force on the day Bill C-280 receives royal assent.

The substantive effect would be to establish a refugee appeal division at the Immigration and Refugee Board. This would involve significant new expenditures to cover the appointment of adjudicators to hear appeals; the administrative officers to establish, receive and process applications for appeal; office space to conduct appeal hearings; and other activities required for the operation of a new appeals division.

The Department of Citizenship and Immigration estimates that the initial start-up cost would be at least $8 million and ongoing annual costs would be over $12 million. This does not include the considerable costs associated with the provision of legal aid.

Those estimated costs also do not take into consideration the potential significant costs of implementation should the bill fail to include transition provisions, without which, could potentially lead to an immediate backlog of approximately 40,000 additional cases.

Of course, the creation of a refugee division was contemplated by the original legislation. However, this was accompanied by a qualification in clause 275, that the timing of its creation would be subject to a future decision of the governor in council, namely, when to bring in sections 110, 111 and 171 into force.

The procedural authorities and precedents indicate that the royal recommendation, which accompanies a bill, fixes not only the amount of an expenditure but also the way in which it will be incurred.

Beauchesne's 6th edition, page 183, citation 596, indicates:

...the communication, to which the Royal Recommendation is attached, must be treated as laying down once for all...not only the amount of the charge, but also its objects, purposes, conditions and qualifications. In relation to the standard thereby fixed, an amendment infringes the financial initiative of the Crown not only if it increases the amount but also if it extends the objects and purposes, or relaxes the conditions and qualifications expressed in the communication by which the Crown has demanded or recommended a charge.

On March 26, 1985, on page 3353 of Hansard, the Speaker cited this section of Beauchesne's in ruling an amendment to a government bill out of order because, by eliminating a legislated deadline, it would relax a condition of the royal recommendation.

On October 17, 1986, at page 473 of Hansard, the Speaker ruled that an amendment to an income tax bill was beyond the scope of a royal recommendation, even though it did not change the overall expenditure, because “It changes the intent of the Bill”.

The intent of the Immigration and Refugee Protection Act, as clearly expressed in clause 275, was that the governor in council would determine at what time clauses 110, 111 and 171 of the Immigration and Refugee Protection Act would be brought into force. In other words, that the governor in council would determine at what time the expenditures associated with those clauses would be incurred.

This was a condition of the royal recommendation for Bill C-11, which members of the 37th Parliament accepted and which is, therefore, inseparable from the authorization for expenditures for a refugee appeal board.

Since Bill C-280 seeks to relax that condition by removing the Governor in Council's determination of the timing of the crown's expenditure, Bill C-280 is beyond the scope of the original royal recommendation and, I submit, should be accompanied by a new royal recommendation.

Citizenship and Immigration

[Norman Doyle, Conservative, St. John's East, NL]

Mr. Speaker, I have the honour to present, in both official languages, the 13th report of the Standing Committee on Citizenship and Immigration, reporting Bill C-280, An Act to Amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171), without amendment.

Statutes Repeal Act

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, this morning I am honoured to address Bill S-202, the statutes repeal act.

Let me begin by congratulating the member for Joliette on his appointment as House leader for the Bloc Québécois. I know that he will bring his not only his experience but his commitment to this place to that job. I also want to thank the member for Roberval—Lac-Saint-Jean for his work in that position up to this point. They are different MPs, I know, and they bring different perspectives to that important task in this place.

I also want to thank the member for Mississauga South for presenting this Senate bill, the statutes repeal act, here in the House for our consideration. I know that it comes out of his commitment to the functioning of this place. He takes a great interest in how the chamber works and I appreciate his initiative around this important legislation.

As we have heard, this legislation seeks to address the fact that a number of pieces of legislation have never come into effect. They have never been enacted even though they have passed through the legislative process here in the House and also in the other place. For some reason, the government has chosen not to enact them.

That came as somewhat of a surprise to me even though I have worked in this place for many years. The fact that the government could choose not to implement legislation that had been passed by the House of Commons and the Senate, that it had that prerogative, is something that I still find passing strange. I find it strange that governments would sponsor legislation, take it through the process in both chambers, with members giving it their due and careful consideration, and see it go through all the stages of the various readings in the House and Senate and ultimately be passed, yet for some reason choose not to implement that legislation, and it would also not seek to repeal that legislation. It would just let it sit there on the books without effect for many years.

Indeed, I understand how that is a problem and I understand the need for some kind of housekeeping measures, both to bring accountability for the legislative process and to ensure that governments are doing their duty and following the will of the legislative branch of our government. I think this bill is a very important piece of legislation. It is important to consider what we do with legislation that has been on the books for many years and has not been enacted.

Generally there are several ways in which this is dealt with in legislation. All legislation has a coming into effect clause, which is usually the last clause of the legislation and which talks about when the legislation will come into effect. In some legislation that is very clearly stated: that it comes into effect at the point of royal assent or sometimes on a specific timetable with specific dates. In those cases, there is not a problem in terms of that legislation not becoming effective, not being enacted and not actually being carried out.

The problem is in the situation where the coming into effect legislation talks about the date to be determined by the governor in council, when the government is given the opportunity to determine the timeline for the coming into effect of legislation. Often there is a good reason for that. It may be that there are further negotiations with other levels of government that have to happen. It may be that regulations have to be developed to allow for the implementation of that legislation.

However, it is in those situations that the prerogative begins for the government to delay or even not implement legislation. That is where I think we need to be more diligent, perhaps, as members of Parliament. I certainly will be careful to look at that clause in any legislation that I am directly involved with in this place in the future, because I think that is where we as legislators can exercise our abilities to ensure that the legislation we work on and support comes into effect in a reasonable length of time and actually does happen. I think that is a place where we need to be more careful.

I would also hope that governments might take more direct responsibility in a situation where problems do crop up with legislation that has been passed but which governments feel they cannot go forward with. They should take responsibility to bring back legislation to repeal something that has already been passed, to convince the people in this place, who have responsibility for the people of Canada to work on that legislation and to make judgments about that legislation. A government must give representatives the opportunity to understand the problems with the legislation as the government sees it and to make a decision about whether it should go forward or not.

We have heard that there are two complete bills, the Motor Vehicle Fuel Consumption Standards Act from the early 1980s and the Canadian Heritage Languages Institute Act from the early 1990s that have not been implemented. I do not know what was in those pieces of legislation that caused them to not be implemented by the government. When I see the title of the first one, the Motor Vehicle Fuel Consumption Standards Act, I wonder if it had come into effect we might have solved some of the problems that we are facing today since it seemed to be an early attempt to deal with that important issue back in the 1980s.

I also understand that there are 57 other pieces of legislation that would be affected by this bill and it seems reasonable that there should be a review of that legislation. However, I want to make sure that we do not lose the opportunity to hold governments accountable for important legislation that was passed, and that we do indulge and we are careful about the politics between the legislative branch and the executive branch of government. We sometimes have to as legislators push the governor in council, the government, to act on legislation and for very good reasons.

I will use as an example my experience since I arrived in this place with a piece of the Immigration and Refugee Protection Act which was passed in 2001 dealing with the refugee appeal division. I know this is not exactly applicable to the Statutes Repeal Act, but it gives an example of the kind of situation we are talking about.

The Immigration and Refugee Protection Act, IRPA, was passed in 2001 and one feature of that act was the establishment of the refugee appeal division which was a paper screening process that gave refugee claimants an appeal of a decision made by the Immigration and Refugee Board. That refugee appeal division was established in law as a compromise in the debate on the immigration and refugee appeal division.

The government of the day wanted to reduce the panels which heard refugee claims from two members to one member, but concerns of other members of Parliament were that a two member panel gave an opportunity for corrections of errors that might be made in the process, whereas a one member panel did not afford that opportunity for fairness and justice, hence the RAD was introduced as a compromise to ensure fairness in the system.

Since then, the governments of the day have refused to implement the refugee appeal division, and every refugee and immigrant serving organization in the country and many internationally have called on the government to implement that. The previous Liberal government and the current Conservative government have faced those strong calls from NGOs which work with refugees to implement that division to bring a modicum of fairness to the process.

The governments of the day have refused to do that. It is part of the law. It was passed as part of the law, but the fact that the law also gave the governor in council the ability to determine the timetable for the implementation of that law, these particular sections have never been implemented.

This brings us to the strange situation where the member for Laval, with the support of her colleague, the member for Vaudreuil-Soulanges, have drafted a private member's bill, Bill C-280, An Act to Amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171). However, this is a private member's bill to implement legislation that has already been passed by Parliament. It seems a strange step to have to take, but many members of Parliament in all parties have called for the government to take this action.

That is one example of the kind of situation we get into, where this chamber made a decision and the Senate also made a decision on this legislation. The legislation was passed. An important piece was added as part of the debate on that and yet the government has chosen never to implement it. Many of us feel that it is a very serious problem with our immigration law.

There are other examples. There is the wage earners protection bill, Bill C-55 which dealt with corporate bankruptcies and putting workers first in the lineup to receive compensation. Parts of that have not been acted on even though it was passed in this place. There are sections of the Labour Code which face the same situation. We do need an effective mechanism to review those pieces of legislation and I am glad that Bill S-202 gives us that opportunity.

[Barry Devolin, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

I don't agree with the decision of the committee that because of unusual circumstances we didn't get a chance to hear the witnesses we wanted to hear on this bill. I think we should hear them, and I've said this in the past, that this is a very unusual situation with the RAD, that it's a piece of legislation that was passed, and for some reason the government of the day chose not to proclaim the one part of the bill. That is unusual.

Secondly, when Bill C-280 went before the House of Commons a few weeks ago, I have said there is one current minister for this portfolio and four former ministers for the portfolio in the House. None of them voted to support it, and in fact, in terms of the three former Liberal ministers, one voted against it and two abstained, which is in some ways maybe even a stronger statement than voting against it.

I have said this in the past, and I accept the fact that some of my colleagues believe the RAD should be proclaimed and implemented and this is the right part of the process, but with all due respect to that point of view, I also find it interesting that people who are more familiar with the department and are familiar with processes and ought to have a good sense of what it will mean obviously have some problem with it. That's why, quite frankly, I found it irresponsible that we decided not to call some of the former ministers before us and just ask them: “You're familiar with this. It was your government that passed it. Why do you even today still not support implementing it?”

Secondly, if there are actually people from outside government, who are outside witnesses, who also have reservations about the RAD...this morning we heard so many compelling stories about how long it takes to get stuff done. There seems an incongruency to me between us wanting to make the system better and fairer, which is the argument for the RAD, but at the same time we want to make it faster, and the way we're going to do that is by introducing another layer and that somehow that's supposed to solve either of those problems.

It's 1:05 p.m. now. To try to jam this through in the next few minutes is irresponsible on the part of this committee.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

I hesitate to accept this motion because the work we did last time we dealt with the bill was very disappointing. The clerk told me that no amendments to Bill C-280 had been tabled and that no motion had been introduced last Tuesday for us to hear new witnesses on this bill. From what I could understand, the meeting was interrupted and the witnesses who were to appear at that meeting were not summoned to a subsequent meeting. So I don't see the need to adopt this amendment, in view of the fact that no amendment has been introduced. In my view, it should be possible to do the clause-by-clause consideration in five minutes, since no amendments have been tabled.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

When we had the last meeting on Bill C-280 there were two witnesses who testified. One was Mr. Gallagher, and I forget the other one. I expressly asked this committee if we could call witnesses on Bill C-280. I think it was in the form of a motion. Remarkably, the motion passed for the witnesses to be called to testify. The names were given to the clerk, who arranged for the witnesses to be here. I'm not sure if they were going to appear as separate panels. Were they kept together? Their presentations weren't particularly lengthy, but they certainly had a perspective on that issue. It seems that we already decided it was okay.

I would suggest a friendly amendment to Ms. Faille's motion, to the effect that the clause-by-clause proceed at the next scheduled hearing date—which I understand is Tuesday of next week—with the opportunity to hear from the witness. I know it's a moderate delay, but it's not an overly lengthy one.

We're almost at one o'clock in any event. I'm not sure how urgently the committee wants to try to put through this motion today. Maybe you want to hear further on the motion, but as we have it—

[Rahim Jaffer, Conservative, Edmonton Strathcona, AB]

It seems to me, if there are relevant questions to be asked about RAD, we should be able to ask them in this particular forum. If we do have to change the time slightly, I think there should be at least the goodwill on behalf of committee members to be able to do this.

I don't usually move motions like this, nor do I speak on particular motions of this nature, but I must admit I was offended in the first round of questioning, as I mentioned. When we did have the ability to ask further questions, we were looking at changing the format according to the schedule. I know we've done that many times.

I sit on the steering committee with a number of members on the other side, and often what's determined at the steering committee is changed here at a particular committee if the majority of members don't agree with it. I know that in this particular case, to ask for slightly more time of witnesses, even though I know we have a very packed committee, there's no reason why we shouldn't be able to look over even potentially delaying witnesses. At the last meeting, I remember that we were going through the detention certificates report, and there were witnesses waiting, Mr. Chair. I felt sorry for them, yet our committee decided that we were going to send them home in order to continue on with the study of our report.

All my motion is speaking to is the particular fact that right now, if we want the ability to ask further questions, I don't think there should be any reason not to. There were legitimate efforts on behalf of members to find out, as we talked about, what sort of backlog is going to exist with this RAD if it's implemented and what sort of timeline will exist with the RAD if we are going to pass it.

Just because the opposition says so, and although they may have the majority on this committee and pass this bill here and later in the House, it doesn't make it so magically. There are going to be implementation issues that the government has to take into consideration, including the cost. We were just informed by Mr. Aterman that in fact it's going to be 7% of the current budget, which is clearly going to have an impact on the backlog position.

Of course, being the Government of Canada, we have to take this into consideration. The opposition doesn't necessarily have to worry about those implementation issues. They can pass anything they like and then simply say it's our problem to put it into effect. For these reasons, it's clear that we must have time to ask further questions. Again, my friendly amendment to the motion is simply suggesting that. Why wouldn't we have the ability to do so?

I know that even the last time around when we had the officials here, I wanted to ask what the minister would do in an appeal decision to RAD, and why the bill would include a provision for the minister to seek judicial review of RAD decisions. I wasn't able to put the questions to the previous witnesses. We would, in the spirit of this amendment that I'm moving, have the ability to actually bring back those witnesses in order for us to get the proper questions in. I think that's something the committee should really take into consideration.

On this refugee appeal division I think we've heard from a number of speakers around the table, including most recently my colleague Barry, who was asking a particular question that I think is a valid one. In the last opportunity I had to actually move a motion here at the committee--and I think it was the last time the committee met--I asked specifically that as a follow-up the committee consider what Barry had asked current witnesses. That was the question of why the previous ministers of immigration, in opposition, had not supported this new Bill C-280. When it comes to RAD, it was obvious to me there were huge splits, huge problems.