Bill C-31 (Historical)

Protecting Canada's Immigration System Act

An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act, the Marine Transportation Security Act and the Department of Citizenship and Immigration Act

This enactment amends the Immigration and Refugee Protection Act and the Balanced Refugee Reform Act to, among other things, provide for the expediting of the processing of refugee protection claims.
The Immigration and Refugee Protection Act is also amended to authorize the Minister, in certain circumstances, to designate as an irregular arrival the arrival in Canada of a group of persons and to provide for the effects of such a designation in respect of those persons, including in relation to detention, conditions of release from detention and applications for permanent resident status. In addition, the enactment amends certain enforcement provisions of that Act, notably to expand the scope of the offence of human smuggling and to provide for minimum punishments in relation to that offence. Furthermore, the enactment amends that Act to expand sponsorship options in respect of foreign nationals and to require the provision of biometric information when an application for a temporary resident visa, study permit or work permit is made.
In addition, the enactment amends the Marine Transportation Security Act to increase the penalties for persons who fail to provide information that is required to be reported before a vessel enters Canadian waters or to comply with ministerial directions and for persons who provide false or misleading information. It creates a new offence in respect of vessels that fail to comply with ministerial directions and authorizes the making of regulations respecting the disclosure of certain information for the purpose of protecting the safety or security of Canada or Canadians.
Finally, the enactment amends the Department of Citizenship and Immigration Act to enhance the authority for the Minister of Citizenship and Immigration to enter into agreements and arrangements with foreign governments, and to provide services to the Canada Border Services Agency.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you, Mr. Chair.

Welcome to our three guests.

I am going to start my first line of questions with Mr. Elcock, but I want to make a comment with regard to what Mr. Loren said.

You stated with regard to biometrics that it's kind of like what fingerprints were years ago, and it's a statement that.... We've had countless other witnesses say that we're actually bringing Canada in line with many other countries around the world that use biometrics, such as the U.K., Australia, the European Union, and New Zealand, etc. So I'm glad that you also said the same thing. I think we are playing a bit of a catch-up game right now.

Mr. Elcock, this question is with regard to biometrics or sources of intelligence. What do you think about our provisions in Bill C-31 with regard to that particular aspect in the bill?

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you very much.

My last question is directed to Germany. Compared to many other EU countries with the designated country of origin policy and process, under Canada's bill, which we're proposing, Bill C-31, Canada would have longer timelines for DCO countries than many other European countries do today.

Do you agree with that, based on information that you can provide?

[Roxanne James, Conservative, Scarborough Centre, ON]

We've actually done some research, and it is 10 to 14 days, which is actually a much shorter timeline than what we're proposing in Canada under Bill C-31.

We keep hearing that we might be in violation of the UN convention on refugees. In your opinion—and this is to any of the guests who can answer this question—is the United Kingdom in contravention of the UN convention on refugees?

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you, Mr. Chair.

I'd like to extend a special welcome to all of our guests today. There are certainly a large number here, and I'm very delighted to see you all here.

Much of Bill C-31, which we're debating here, has to do with designating certain countries as safe countries. I know that many democratic European countries designate certain countries as safe and actually accelerate asylum procedures for claims from those countries. There's a long list of these countries: United Kingdom, France, Germany, Switzerland, Norway, Finland, Ireland, Netherlands, and so on. This is not something new on the world stage. Canada is actually behind a lot of the other countries we're most commonly compared against.

I just have a question specifically regarding the United Kingdom, the U.K. The process for claimants in some streams takes as little as 10 to 14 days—that's what I've been told. Is this a correct statement?

I'm not sure who I should direct this to. Perhaps our guests—

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

Thank you, Mr. Chair.

This has become a recurring theme. I had hoped that when we started the process, in terms of witness presentation—and I don't hold any of you responsible for this—we would be hearing from different themes in terms of support or not support of the bill. I find I'm repeating myself on a regular basis.

Based on the opposition that you have to the bill, I understand your perspective, but we have heard it on a number of occasions already. In fact, I do want to clarify a couple of things.

Number one, the former United Nations High Commissioner Abraham Abraham said that the UNHCR does not oppose the introduction of a designated or safe country of origin list, as long as this is used as a procedural tool to prioritize or accelerate examination of applications in carefully circumscribed situations and not as an absolute bar. Many countries, including the United Kingdom, Ireland, France, Germany, the Netherlands, Norway, Switzerland, and Finland all use and implement the designated safe country.

In terms of the criteria for claimants from countries—for example, there are two quantitative thresholds for countries that have a mass number of applications into our country, for those who are seeking asylum as refugees. They have to meet one of two quantitative thresholds, or limits, as set out in the order. The proposed triggers for a review are based on rejection rates, withdrawal, and abandonment rates. A rejection rate, which includes abandonment and withdrawal, of 75% or higher would trigger a review. Similarly, an abandonment and withdrawal rate of 60% or higher would also trigger a review, and I repeat “a review”. It doesn't automatically mean that the designation is going to take place. An internal review led by the Ministry of Citizenship and Immigration, in partnership with a number of other ministries within the government, will make the determination or recommendation based on a review that the country that is in question has either hit the criteria from a quantitative perspective or is subject to a review based on the number of withdrawals or abandonments that we have seen. So there are defined criteria that will be here.

I was part of Bill C-11. I sat through every minute of the hearings, and also the negotiations in terms of moving it forward, and 80% to 85% of Bill C-11 is going to move forward. There are just additional aspects that we have brought to the table here.

Under Bill C-11, which was a problem with respect to the designated country, there was no provision for transparent criteria. The criteria would be determined by the group itself. The concern we had was (a) what would those criteria consist of, and (b) there were no assurances as to the time allocation of how long that determination process would take. So at least through here, (a) we have a transparent set of criteria, and (b) we actually know the timeframe within which this designated country application will actually take place.

For claimants from countries with a low number of claims, we're actually going to move to a qualitative checklist, which will be established right in the legislation itself. So the qualitative checklist will include (1) the existence of an independent judicial system in that country; (2) recognition of basic democratic rights and freedoms, including mechanisms for redress if those rights or freedoms are infringed; and (3) the existence of civil society organizations.

While I respect that you may not agree with the process in terms of how we come to the conclusion, it's unfair, and it's also untrue to state that there aren't qualitative and quantitative criteria built in to both the legislation and the mechanism that will be used to go through the process for review. It's really important that this gets put on the table. I think part of the reason that folks come to the table and state that they're unsure of, or leery of, the designated safe country is that this information isn't necessarily at your fingertips. I do understand that is a concern, but I also understand that as we move forward in terms of Bill C-31...and part of the reason why we're doing these hearings is to afford us all the opportunity to understand the bill as it sits in a much stronger form.

Kelsey, I wanted to ask you about one of the concerns I have. I respect the fact that the opposition to a particular piece of legislation is democratic, but so is the support of the legislation, and we've heard from a majority of Canadians across this country that in fact this bill doesn't go far enough and that it should be more aggressive in its nature. We don't necessarily agree with that. We want a bill that is going to do both: suit and meet the expectations of most Canadians, and also, obviously, respect the rule of law as closely as we possibly can.

You spoke a number of times about the issue of rights and fairness. Over the last decade, we're talking about approximately 100,000 to 120,000 refugees who have come to this country and have been accepted, of which there were only 600 in the last decade.... Two ships have come here with approximately 600 people, and you've spent a great deal of time focused on the rights of those 600 individuals, while not acknowledging and complimenting the fact that between 100,000 and 120,000 refugees in fact have had those rights, in the same aspect that you're talking about.

So what we're concerned about here is only one small part of the bill, which gets at the irregular arrivals. I think it's important to note that we are talking about...less than half a per cent of the impact of our system within this bill is focused on those who come as different arrivals—other than by land or off-land.

I come to this point because currently we have over 40,000 individuals who have claimed refugee status in Canada and who we can't find. We don't know where they are. We have over 2,000 individuals who were approved for permanent residency or refugee status and actually got it by basically cheating the system, by not being forthright and honest about their perspective—or at least their claim.

For me, when you say we have to protect the rights of an individual, we also have to protect the rights of Canadians, and my concern is that we cannot.... I know it's important that everyone is as equal as we can potentially come to, but there is a balance that gets struck when we have over 40,000 people—and that's why I believe the system is broken—who we currently cannot locate. We do not know where they are. Now, we don't know if they present a danger to society; we won't know until something actually happens. But then...and there, I think, is where the rights of Canadians as individuals are and that we as a collective have to ensure. The government's responsibility is to protect those rights as well.

[Chungsen Leung, Conservative, Willowdale, ON]

It comes from looking at the cost savings by having Bill C-31 protecting our borders and extrapolating over a five-year period, on the basis of the fact that we have to look at about somewhere between $50,000 to $70,000 per refugee claimant, which is the cost to us today.

[Karina Fortier]

We had two sessions where we tried to raise awareness about this project. We set up a table where a lot of people pass through, and as I said, we just stopped people and asked them if they had heard about Bill C-31. Most people hadn't heard about it. We told them what it was.

Further than that, it's summer now and most students have gone home or are on vacation. As for next year, we're very interested in getting the media involved and, as you said, connecting with other universities.

We are hoping this bill is not going to pass so that we have more time to oppose it, with the connection of other networks.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

I'd like to pick up on that particular point and maybe add a little bit more to it. I think we do need to be clear that Bill C-31 will be a fairly extensive bill in terms of financial costs to taxpayers, but more importantly, there is the issue of human rights, the idea of challenges that will no doubt come out if this bill passes as it is, without amendment. There will be constitutional challenges. Many, including myself, would argue there would be successful constitutional challenges because of the mandatory detention clause.

There are other issues surrounding the bill that one would argue have tarnished Canada's international reputation, and I think that's most noteworthy. When you look at the larger picture of the number of refugees worldwide, in excess of 10 million refugees, Canada has historically played a fairly strong role in terms of providing leadership on the refugee file. This is going to take away from our ability to do that.

To Karina and Kelsey, I appreciate your comments. I'd be very much interested in receiving a copy of the petition you make reference to. I think it's great that a body of students at McGill has taken an interest in what's happening in Bill C-31. You both expressed passionately your thoughts on it.

I have a very limited amount of time; that's why I wanted to get a few points on the record.

I guess my first question is in regard to what else is happening at your university. Are you expanding, making other universities aware of it? I would welcome the opportunity to even have a discussion on Bill C-31 with the minister at your university, if the minister were prepared to go to debate this particular bill.

Can you provide what else is happening at your university?

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

Thank you, Mr. Chair.

I would like to thank our witnesses for being here this morning.

Some of the witnesses who have appeared here have talked to us about the importance of having a speedy system, but they have also said, as you have stressed this morning, that it must be based on respect for fundamental rights and humane, universal justice. In our opinion, these are really key points that will have to be taken into account in relation to this bill.

I have one question regarding the country of origin designation process. Bill C-31 amends both the country of origin designation process and the criteria for making that designation that are set out in the Balanced Refugee Reform Act. Could you comment on the new process that is proposed for designating countries of origin?

[Alex Neve]

Okay.

The last point I want to make is a point about appeals. For years the lack of an appeal on merits has been the notable shortcoming in Canada's refugee system. We welcomed, therefore, the inclusion in Bill C-31 of establishing the Refugee Appeal Division. What is deeply troubling, though, is the discrimination in terms of who gets access to an appeal, most notably those who have arrived as part of an irregular arrival or those coming from designated countries of origin.

Discrimination in something so fundamental as access to justice contravenes Canada's international human rights obligations. An appeal hearing is not superfluous; it is essential, and this should not be part of the bill.

Thank you.

[Alex Neve]

Thank you, and good morning, committee members.

The right to liberty is a cornerstone human right grounded in the innate human yearning for freedom. Human rights norms universally, therefore, make it clear that the state's power to take away liberty through arrest and imprisonment is and must be constrained and restricted. To ensure that the right to liberty is well protected, human rights treaties clearly lay out that anyone deprived of their liberty must first be informed of the reasons for their imprisonment and then have a prompt and effective opportunity to challenge their imprisonment before a judge or other legally authorized person.

Amnesty International's research has demonstrated that asylum seekers and other migrants the world over are particularly vulnerable to abuses of the right to liberty. In particular, it has become clear that numerous governments have resorted to locking up refugees and migrants as a means of deterring other refugees and migrants from coming. Nothing in international law recognizes that as a valid reason to take away liberty.

International law does recognize that states have the right to control their borders. There is also, of course, an obligation to ensure that individuals are not sent back to countries where they would face persecution. At the border, therefore, international law is very careful. It has recognized that only for a length of time strictly necessary may a state be justified in detaining asylum seekers to verify an individual's identity, to ensure that someone who poses a flight risk will appear for proceedings, or because someone poses a demonstrated threat to security. But there must be a timely ability for the individual to challenge the reasons for their imprisonment.

International standards recognize that the liberty rights of certain groups of migrants, such as asylum seekers and minors, must be particularly scrupulously protected. The refugee convention, for instance, lays out that the mere fact that an asylum seeker has entered a country through illegal means is not in itself valid reason for punishment. The UNHCR's guidelines on detention note that asylum seekers have often experienced considerable trauma and hardship that must be taken into account in making any decision to detain them. International law with respect to both refugee protection and the rights of children is also very clear that minors should only be imprisoned as a measure of absolute last resort.

Bill C-31 contravenes these universally established norms protecting the fundamental right to liberty. Individuals are not detained for any of the recognized grounds for detaining migrants, such as verifying identity or dealing with flight risks or security threats, all of which are already well established in Canadian law. The reason they lose their liberty is instead the mere fact that they have entered Canada as part of a group of individuals designated by the minister to be an irregular arrival. It has nothing to do with the individual's own circumstances. It makes no difference whether they have a plethora of valid identity documents or a collection of forgeries, whether they are guaranteed to show up for future proceedings or almost certain to go underground, or whether they pose an obvious and grave threat to national security or are a paragon of virtue. Their arrest and imprisonment are automatic, solely on the grounds of how they arrived. There's no exception for individuals who make refugee claims. There's no exception for individuals who have experienced torture, rape, or other human rights violations. There is no exception for minors over the age of 16.

The problems with this new detention regime do not end with the grounds for arrest and imprisonment. They extend to the crucial internationally mandated requirement that individuals who are locked up must have meaningful and regular access to a judge or other authorized person to challenge the reasons for their arrest and seek their release. Under Bill C-31 they do not. The immigration division is to review the reasons for their continued detention on the expiry of 12 months after they have been taken into detention, and “may not do so before the expiry of that period”.

Arbitrary mandated detention without timely review violates Canada's international obligations. UN-level human rights bodies have made this clear. The UN Committee Against Torture, commenting on similar mandatory detention provisions in Australia, called for it to be abolished. Notably, that same committee will be reviewing Canada's human rights record later this month, and this issue is in front of them.

Last month the UN Committee on the Elimination of Racial Discrimination called on Canada not to go ahead with mandatory detention provisions. Those provisions should be withdrawn. Canada rightly criticizes arbitrary detention in other countries. We cannot do so credibly if we legislate it ourselves.

The safe country of origin concept is also one that Amnesty is concerned about. We're concerned that it is not workable and cannot be applied in a principled manner. We know. Human rights research and reporting are things we have been doing for over half a century. We grapple with this all the time.

Amnesty International is asked to do exactly this all the time: to rank countries, to compare countries, to measure countries from one year to the next. We're asked to give a statistical measure summing up a country's human rights record, and we do not do so for several reasons, but very pragmatically we do not do so because there is no way to do it objectively and accurately. There is no way to draw the line between countries that are safe and countries that are unsafe when it comes to human rights.

How does one compare a country that has widespread torture but generous access to education with a country that has no torture but draconian laws that limit access to education for women and minorities? How much torture, how much restricted education, just how much and of what would it take for a country to move over the line from safe to unsafe or from unsafe to safe? It cannot be done in a way that doesn't in the end involve subjective and arbitrary line drawing, and when it comes down to people's lives, rights, and freedom, subjective and arbitrary are not acceptable. There is too much risk of countries being categorized as safe, therefore, because of irrelevant trade and foreign policy considerations, and in that regard we were troubled to see that an earlier proposal for an expert advisory committee in this area is no longer on the table.

[Béatrice Vaugrante, Executive Director, Amnesty International Canada Francophone, Amnesty International]

Good morning, everyone. I would like to thank the committee for giving Amnesty International an opportunity to present its views on Bill C-31.

Amnesty International has analyzed this bill from the perspective of the following three points. First is our expertise in the area of compliance or non-compliance with international human rights law and Canada's commitment in that regard. There is also our experience. We are often asked to protect the rights of asylum seekers in Canada and we intervene when we consider it to be necessary. And there is our commitment, at the global level, to protecting the rights of people who immigrate and are trying to flee fear and want, as the Universal Declaration of Human Rights says, at whatever cost it may be to their families.

To begin with, we acknowledge that the process for accepting refugee claimants is difficult and complex, and will certainly always have its imperfections and inconsistencies. It calls for an ongoing process of change and reform. Amnesty International agrees that it is the responsibility of governments to guarantee the integrity of any refugee determination system. Those changes and reforms, which are certainly designed to achieve greater effectiveness and are concerned with abuses, must nonetheless always be based on respect for the rights of claimants.

Amnesty International is concerned. Bill C-31, which is being considered today, violates Canada's obligations under international law and violates the Canadian Charter of Rights and Freedoms. We will start by identifying the issue of discrimination, which we are disappointed to see can be found in several provisions of the bill. All refugee claimants should be treated fairly. The discrimination is based not only on manner of arrival in Canada, but also on country of origin.

My colleague, Alex, will come back to three general provisions of the bill that would, if they are implemented, generate serious violations of international laws relating to protection of refugee claimants, to human rights and to the Canadian Charter of Rights and Freedoms.

The first provision talks about making it mandatory for designated foreign nationals to be imprisoned with no review of the grounds of detention possible. The minister may decide that a person is a designated foreign national if the minister believes the person used human smugglers to enter Canada. The second provision makes it impossible for designated foreign nationals to appeal an unfavourable determination regarding their refugee status. And the third provision talks about identifying countries of origin as safe solely by decision of the Minister of Citizenship, Immigration and Multiculturalism.

The following points are also of concern to us: the fact that access to permanent residence status is barred for five years, which prevents family reunification; the times allowed, which are much too short and unfair; and the unfairness and impossible choices that exist between the refugee protection process and the humanitarian reasons process.

Amnesty International has nine recommendations to ensure that, at a minimum, this bill meets Canada's international obligations in relation to human rights. What we are talking about are obligations that Canada itself helped create and develop.

I am going to let Alex speak to the next three points.

[Kelsey Angeley]

When our generation assumes the political positions that you now occupy, we do not want the burden of correcting past mistakes. While we are welcome participants in Canada's democracy, and our testimony at this hearing is proof of that, it is you who are its current caretakers. We ask you to consider the long-term consequences of this bill and how it will shape the country we will inherit.

By disregarding Canada's international obligations, Bill C-31 threatens Canada's moral integrity on the international stage and the soft power that comes with being a humanitarian state.

When Australia implemented similar legislation, its image and reputation as a humanitarian state were called into question. We do not want to see that happen with our country.

Furthermore, infringing on the rights and dignity of asylum seekers—as are guaranteed by the Canadian Charter of Rights and Freedoms—puts everybody's rights at risk. When one person loses their rights and dignity on Canadian soil, everyone's rights and dignity are put at risk.

Moreover, our peers are in consensus with us that Bill C-31 represents a misuse of finances. As the Auditor General's May 2008 report notes, it costs $70,000 a year, on average, to detain a refugee claimant. Had Bill C-31 been law at the time of the MV Sun Sea arrival off the coast of British Columbia, Canadian taxpayers would have spent $34,440,000 on detaining people who had done nothing but exercise a right guaranteed to them by international and domestic law.

As there currently exist provisions under the IRPA for detaining individuals who are deemed a threat to Canada or who cannot be identified, generalized detention is unnecessary and expensive. We believe it would be more responsible and productive to use taxpayer money to perhaps hire more legal aid workers and lawyers to help refugee claimants navigate the determination process, or to create more positions on the Immigration and Refugee Board, which would not only ensure a fair hearing for refugee claimants but would help to expedite the process.

Bill C-31 is not a political or a financial legacy that we wish to inherit. Rather than leaving it to us to correct this mistake in 10 years, we ask you, the honourable members of Parliament, to make sure we avoid it altogether.

[Karina Fortier, Student, B. Refuge, McGill University]

We therefore undertook an awareness campaign with the objective not of persuading people to our position, but simply of informing them about the content of Bill C-31. And what happened was that a majority of the students we approached were opposed to the proposed changes. In the space of just four hours, we collected over 150 signatures to stop Bill C-31 from being passed. I would also like to ask the committee's permission to send it a copy of the petition.

Ladies and gentlemen, members of the committee, why do you think that young students like us are wary of this bill being enacted? The reason is that we make up a demographic group that takes an interest in the news and in Canadian politics, but that actually will not hold any seats in the House of Commons for another 10 or 15 years.

In the meantime, we are apprehensive as we follow the enactment of new laws like this one, which proposes to put entire groups of newcomers, including minors, in detention for one year. We are shocked by the fact that families will be separated for at least five years. We are shocked that entire countries might be considered to be safe, when to obtain refugee status, a person has to prove that they have been persecuted in their country, as an individual.

We consider it to be anti-democratic that the responsibility for drawing up that safe country list will be assigned to just one person, the minister. We wonder why the government considers the distinction between real refugees and bogus refugees to be so important, and penalizes the latter group. Even if they do not meet all the criteria in the official definition of a refugee in the Geneva Convention, a large majority of those refugee protection claimants are in need of help.

We are also disappointed that the minister would deny that the proposed changes will in fact punish these so-called bogus refugees.

[Kelsey Angeley, Student, B. Refuge, McGill University]

Good morning, Mr. Chairman and honourable members.

Thank you very much for hearing our testimony today. We are honoured to speak before you on behalf of a group on the McGill campus called B. Refuge. For the past four years, B. Refuge has worked to facilitate interactions between refugee claimants and students, with the purpose of sharing language and culture and helping to orient refugee claimants to the city.

The work we do is premised on the belief that refugee claimants are valuable members of our community and potential Canadians. By asking Canadians to view refugee claimants as frauds and criminals, Bill C-31 undermines this premise.

Accordingly, this past year we have turned our attention to raising awareness among our peers about Bill C-31 and educating them on the dangers we believe it presents to refugees and to the larger Canadian community.