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.

[Prof. Delphine Nakache]

I have many documents with me today, but not the one from the Auditor General's report. What I remember is that the overall costs of detention in a correctional facility derive from an agreement between CBSA and the provinces, with CBSA paying the provinces to keep those immigration detainees in detention. As for the overall costs, unfortunately, we really need more statistics on that. We need more readily available statistics available for anyone.

I remember asking them for that information for my report, but they said they couldn't provide me with that type of information. But in that report, for the years 2005 to 2007, the overall costs of detention in correctional facilities were higher. They were higher knowing that more than one third of immigration detainees are in correctional facilities. Actually, the cost is really much higher in correctional facilities than in detention facilities.

I would like to state one further point. I oppose Bill C-31 and came here because I really wanted to give you a specific illustration of a specific problem. I do believe that detention is not an effective deterrent against irregular immigration. I do believe that there are other ways to address your problems and issues around irregular immigration. As you said, it is also true that there are problems relating to detention in immigration facilities, but this increase in detention in correctional facilities is problematic and should really be looked at closely before we go further with the implementation of the bill.

[Prof. Delphine Nakache]

Perfect.

This report shows that CBSA payments for provincial prisons exceed CBSA-run detention facility costs. So contracting with provincial facilities in several parts of Canada represents a huge cost to taxpayers.

Therefore, before measures are implemented for detaining more asylum seekers for a longer period of time, it is important to first address the real issues surrounding the detention conditions of asylum seekers in provincial correctional establishments.

Some steps toward greater involvement by the federal government have already been taken. However, it is essential to go further to solve these problems before those problems get exacerbated if Bill C-31 is implemented.

Thank you.

[The Chair, Conservative, David Tilson]

Good morning, everyone. This is the Standing Committee on Citizenship and Immigration, meeting number 38, Thursday, May 3, 2012. The orders of the day are pursuant to the order of reference of Monday, April 23, 2012, Bill C-31, An Act to amend the Immigration and Refugee Protection Act and other acts.

We have two witnesses today, Delphine Nakache, a professor with the Faculty of Social Sciences at the University of Ottawa, and James Bissett.

You have been here many times, sir. Good morning to you.

You each have up to 10 minutes to speak to us.

We will start with you, Ms. Nakache. Thank you for coming.

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

Actually, the purpose of detention is to ensure that before individuals go into Canadian society we have an understanding of who they are and whether they are qualified refugees or in fact they are not refugees. As we found with the Sun Sea and the Ocean Lady, people aboard those ships were actually war criminals or terrorists.

Part of it, from our perspective, is the importance of identifying individuals who are claiming refugee status and understanding who those individuals are and what their past is all about. It's an issue of safety.

Let me be clear. In the last decade this has made up less than 0.5% of what our refugee system is all about. When we talk about a refugee system overall—you pointed it out, and I'm proud to hear that even as far away as Australia, Canada is considered to have one of the best refugee and immigration systems in the world—it doesn't mean that we are fixed or we shouldn't be improving it.

Part of the problem is that less than 40% of those who apply for refugee status actually achieve that refugee status in the country. The system itself is so broken that it takes upwards of two and a half years on average to get an initial response to a refugee claim.

We have individuals who lose their refugee cases after three or four sets of appeals. They've spent seven or eight years in this country. They get married here, have children, purchase homes, have jobs, and they're forced to go back to their country because they've failed to qualify as a refugee. Our system is such that we need to fix it.

We just had a witness from the embassy who acknowledged that Hungarians in the thousands were coming to Canada because it was an easy system to take advantage of. The list of what is required to be humanitarian doesn't include that we're easy to take advantage of, that the rest of the world sees us as easy pickings.

Under C-11, which you'll hear some of the opposition members indicate is being replaced by C-31...but clearly 70% to 85% of C-31 is actually what C-11 manufactured. Within C-11 is an additional 2,500 refugees who are coming to this country, of which 2,000 are privately sponsored and 500 are government sponsored. That puts us in the top two or three per capita in the world.

Our system needs to be fixed. It needs to be set in order; it hasn't been in many years, almost decades. But at the same time we still want to maintain—and I hope you understand this government's intention as far away as Australia—the integrity of that system and in fact ensure that it remains one of the best systems in the world.

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

Ms. Crock, you've continued to comment about the purpose of detention as being some sort of a deterrent, that you feel that's the reason we're doing this. Where did you come up with that idea?

Who told you that the reason the government is moving with respect to C-31...that the purpose of detention has something to do with deterrence? The bill doesn't say that. The government hasn't said that. Who has told you that?

[Prof. Mary Crock]

Thank you very much for the opportunity to speak to you.

I have spent some time in Canada. In fact, I was in Canada during the period of September 11, 2001, when Australia took the opportunity to change its laws quite dramatically so as to become much more punitive towards people arriving by boat.

I would like to address, in particular, in my opening remarks, the changes proposed in Bill C-31, which involve the treatment of irregular arrivals through the introduction of mandatory detention of one year and the introduction of temporary protection visas.

It is our view that the amendments place Canada at risk of breaching obligations it has assumed under international law. I see that you have already had a number of people address you on this issue.

I would also, however, like to talk to you about Australia's experience and the extent to which the laws you are now envisaging for Canada have had very detrimental effects in Australia. I will leave my Canadian colleagues to spell out how I think the proposed laws would be in breach of Canada's Charter of Rights and Freedoms.

I'm sure you've had many people expressing their disappointment that Canada appears now to be engaging in something of a race to the bottom in terms of its standing as a humanitarian country. Not only, I think, is it abandoning ostentatiously the role it has played in modelling international legal best practice in human rights, but it appears to me to be going out of its way to cherry-pick all the elements of regressive bad practice that have been devised by its two main comparative countries, Australia and the United States.

The sadness for me, I think, is that in doing this, Canada is setting itself on a slippery slope from which it will be very difficult to return. This has been Australia's experience. Put simply, in practical terms, I do not think the measures you are proposing to introduce will act as effective deterrents to irregular migrants. They are likely to have huge financial, and more importantly huge social, costs.

I do acknowledge, however, that the measures you are looking to introduce are powerful electoral tools. They work, in fact, to foment and focus unease with persons of visible difference in society. For this reason, in societies like ours that are heavily multicultural, they can be socially very damaging. In this respect, in fact, the laws represent some of the most cynical initiatives governments can take to play to what we might call the redneck elements of society.

Our former Prime Minister, Paul Keating, in fact, referred to Australia's version of these laws as “lifting the rock”. He could have added, “stirring the scorpions”, un véritable noeud de vipères.

If I may, I'll just briefly talk to the two measures we want to focus on. First is the introduction of one-year mandatory detention. Australia's mandatory detention laws, you may be interested to know, began as laws that, in fact, mandated detention for nine months. In fact, they specified 273 days and were put in place for a group of about 400 asylum seekers from Cambodia, who were also, interestingly, styled “designated persons”. I should tell you that they in fact remained in detention for four years before they were ultimately sent back to Cambodia and then brought back to Australia, where they were all given permanent residence.

I think the changes you are proposing are of quite critical significance, because as I say, they are, for me, the thin edge of the wedge that is likely to see Canada introduce increasingly draconian legislation that will be increasingly abusive of human rights. I share the previous interlocutors' concerns about the terms of the legislation and the fact that the mere suspicion of a person's status as an irregular arrival would be enough to mandate detention.

I'm less concerned about release after somebody has been recognized as a refugee. My concern is that once you introduce mandatory detention, the prospect of processing times stretching out actually increases; it doesn't diminish.

One of my concerns about the legislation and about giving the power to an official to mandatorily detain somebody is the removal of judicial oversight of that process—the fact that somebody must be detained for one year and that judicial oversight will only occur every six months.

When we did this in Australia, we used very similar language. In fact, there appears to be quite a degree of legal borrowing happening in this space. One of the effects of this was that we ultimately saw a great number of legal permanent residents, and indeed even a citizen, being arrested and removed from the country without the oversight of the judiciary because our laws talked about mandatory detention. In fact, our laws talked about the “reasonable grounds to believe”, but even so, without judicial oversight of the process, people were wrongfully detained.

We are able to supply for you the financial costs that mandatory detention has brought for Australia. Over the years, the cost has grown exponentially. In the 2011-12 budget, we spent more than $700 million running our detention centres offshore, and our detention centres onshore cost us nearly $100 million. These are not small amounts of money, and they have grown exponentially over the years. You will find yourself spending huge amounts on building more and more detention centres as these come. The amounts we have paid out to people who were wrongfully detained because of the laws we put in place.... A report in recent years in 2011 suggested that the Australian government has paid out more than $16 million in compensation to asylum seekers and detainees who were wrongfully detained.

I would also invite you, however, to have a look at the social cost of these measures. We have found in Australia that mandatory detention has never deterred a single asylum seeker. Unfortunately, countries like ours tend to attract genuine asylum seekers. I know that there is also a concern with people who are not launching genuine claims, but in fact in world terms, our countries attract people who have genuine refugee claims. The result is that when you introduce punitive laws like these, they can affect the whole fabric of society.

I will just say in closing that the measures to introduce temporary protection visas are also extremely regressive. In Australia, not only did they not deter anybody; they in fact changed the composition of the asylum-seeker population coming to Australia, because instead of being able to bring families in using legal methods, people were forced to use irregular migration to get their families to join them. For that reason, we saw within a very short space of time an enormous increase in the number of unaccompanied children and women who were coming out as irregular maritime arrivals.

These are very complex matters. We live in western democracies that are attractive to people who have been persecuted around the world. We also live in democracies that have been built on systems of justice and equality that should be the envy of those of us who are citizens of this society. To introduce laws that threaten that fabric, that encourage these events is very regressive.

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

Okay. Thank you very much.

The other question I have is this. We've talked a fair bit here earlier today about the psychological trauma of detention, both for adults and children, especially for refugees who come here from, I would say, not very stable environments. Perhaps both of you could comment on the legal elements of, let's say, forced detention.

When you read our bill the way it is written, Bill C-31, it actually does say that you can be kept in detention for up to a year. Nowhere is it explicit in there that once you've been designated a refugee, you're going to be released. We will be looking at some amendments in that area, obviously. Could you comment, not on the personal toll it takes psychologically, but on some of the legal challenges?

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you.

I'd actually like to make reference to Bill C-31, because in actuality, once we determine that they are legitimate refugees, they will be released from detention.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

In order for Canada to really be able to contribute to that immense problem of displacement, we need to be able to influence the world. The world does look at Canada and the policies. I think this is where Bill C-31 likely causes the most damage to our reputation and to our ability to contribute to that 10 million. Is that a fair assessment, Mr. Milner?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Chair, I'd like to continue with the whole idea of moral authority. I think one of the discussions that has actually been lost in this whole debate on Bill C-31 is that if we take a look at the bigger picture, we have over 10 million refugees throughout the world.

[Prof. James Milner]

Thank you, Mr. Chair. I am very grateful for the committee's invitation and for this opportunity to appear before you today.

While Bill C-31 would affect Canada's domestic refugee system, my presentation today considers the implications of Bill C-31 for Canada's international refugee policy.

The current strategic outcomes and program activity architecture for Citizenship and Immigration Canada specifies that CIC, along with its partners within the Canadian government, aims to influence the international refugee policy agenda by participating in a range of multilateral, regional, and bilateral forums. In fact, CIC, working with CIDA and DFAIT, has had considerable success in pursuing this objective and especially in demonstrating international leadership and influencing the international approach to the issue of protracted refugee situations, which is a topic I will speak about in just a moment.

My concern with Bill C-31 is that it contains three elements that would likely undermine Canada's ability to pursue this objective, as they could have a negative effect on Canada's ability to influence its position within the global refugee regime. These three elements are ministerial authority and the designation of safe countries of origin, the use of detention in response to irregular arrivals, and provisions for the revocation of permanent residence status, especially for refugees who have been resettled to Canada.

My commentary on Bill C-31 today is informed by the findings of a research project I have co-directed at the University of Oxford for more than 10 years. The project has examined the politics of the global refugee regime and how certain states, like Canada, are able to promote an agenda that is focused on solutions for refugees. This research has found that Canada has been quite successful in influencing refugee policy at both an international and a regional level. I would be happy to provide some examples of these successes in the question time. I won't get into them now, in the interest of time.

Our research has indicated that Canada's ability to play this leadership role is primarily a result of its moral authority, its demonstrated commitment to multilateral cooperation, and the reputation it has for a fair and impartial domestic asylum process. In contrast, we have found that countries that adopt restrictive legislation, especially legislation that includes provisions for mandatory detention and measures explicitly intended to deter the arrival of asylum seekers, lose their ability to influence the global refugee regime, especially when it comes to negotiating with refugee-hosting states in the global south.

In the interest of time, I would like to provide some background on the global context before I focus my comments on these three elements of concern and suggest amendments for the committee's consideration.

The past 20 years have witnessed an important shift in the global refugee system. One of the manifestations of this shift is the rise in so-called protracted refugee situations. These are situations were refugees spend a minimum of five years in exile without a durable solution to their plight. Some two-thirds of refugees in the world today—that's 7.2 million refugees—are in a situation of prolonged exile, and 80% of these refugees remain in their region of origin. In fact, some of the largest refugee hosting states in the world today are countries such as Pakistan and Kenya. These are countries that face many of their own challenges with stability and development.

Many of these hosting countries respond to the mass arrival and prolonged presence of refugees by requiring refugees to remain in refugee camps. These camps are frequently very isolated and very insecure places, where refugees do not enjoy the freedoms and rights afforded to them under the 1951 convention, such as freedom of movement and the right to seek employment.

While the precarious condition of refugees in these camps is problematic, perhaps more alarming is our demonstrated inability to find solutions to protracted refugee situations. In 1993 it took an average of nine years to resolve a refugee situation. Today it takes closer to 20 years to resolve a refugee situation.

Canada has identified the resolution of protracted refugee situations as an international priority. Through its statements to the UNHCR's executive committee and to the UN General Assembly, Canada has called for international action to address these situations and make solutions for refugees more predictable. This priority has been echoed in CIC's own strategic outcomes and program activity architecture, specifically, strategic outcome 2, program activity 4.

Canada has primarily used mechanisms to advance this priority of helping to resolve refugee situations.

The first is refugee resettlement. The government should be congratulated for announcing that Canada will resettle as many as 14,500 refugees a year. This would confirm Canada as the second largest refugee resettlement country in the world.

It would, however, be problematic to conclude that protracted refugee situations can be resolved through resettlement alone. The current global total of resettlement opportunities is about 80,000 opportunities a year. With 7.2 million refugees eligible for resettlement, it would take 98 years to resolve protracted refugee situations through resettlement alone. This is why Canada uses diplomatic engagement in combination with resettlement to play a leading role in resolving protracted refugee situations.

Based on Canada's moral authority in the global refugee regime, it has been able to lead negotiations internationally and at a regional level to move protracted refugee situations towards their resolution through a combination of resettlement, repatriation, and local integration. I would argue that this is a very cost-effective way to strengthen the global institution of asylum and to seek solutions for specific refugee situations.

As I have mentioned, Canada has been able to play this role because it has moral authority in the global refugee regime. It has a demonstrated commitment to multilateral cooperation, and it has a reputation for a fair and impartial domestic asylum process. In stark contrast, other states in the industrialized global north, especially some European states and Australia, have been seen to lose influence and moral authority in the global refugee regime as a result of the adoption of more restrictive asylum policies at home. Again, in the interests of time, I won't go into these examples of how this happens, but I'd be happy to talk about that during the question time.

Given the importance of Canada's moral authority in pursuing its interests within the global refugee regime, and given the role that changes in domestic policy and practice have had on the moral authority of other states within the regime, I submit that it is important to consider the international implications of Bill C-31. There are three elements of Bill C-31 that would likely undermine Canada's moral authority within the global refugee regime.

My first concern relates to ministerial authority and the designation of safe countries of origin. Negotiations with host states in the global south on refugee policy frequently include considerations of the importance of depoliticizing refugee issues and the value of transparent and bureaucratic decision-making mechanisms when responding to the arrival of asylum seekers, either through individual or mass arrivals. Canada's ability to make this argument with host states in the global south would be undermined by the provisions of the bill that give the Minister of Citizenship and Immigration discretionary power to designate certain countries of origin as safe.

I therefore recommend that the bill be amended to mandate an independent advisory panel of experts the task of compiling and maintaining this list of safe countries of origin.

My second concern relates to the use of detention in response to irregular arrivals and designated foreign nationals. The use of mandatory detention as a deterrent against the arrival of future asylum seekers has not only been demonstrated to be ineffective and extraordinarily expensive, especially in the case of Australia, this provision has been a central feature of the restrictive asylum policies in the global north that states in the global south have identified as a justification for limiting the range of rights they afford to asylum seekers and refugees on their territory. Canada's ability to encourage host states in the global south to move away from the encampment of asylum seekers and refugees and the provision of greater freedom of movement would be undermined by the detention provisions detailed in the bill.

I would therefore recommend that Bill C-31 should be amended to remove reference to the mandatory detention of irregular arrivals and designated foreign nations.

My third and final concern, and I'm moving to my conclusion here, relates to the provision of the revocation of permanent resident status. A central priority for Canada's engagement with the global refugee regime has been to encourage every opportunity for refugees to secure a permanent and durable solution to their plight. Canada's ability to make this argument internationally would be significantly limited if Bill C-31 contained provisions through which refugees who have been resettled to Canada and granted permanent residence could have this legal status revoked, except in cases where it is demonstrated that the application for resettlement was obtained through a fraudulent claim, and here I would refer to Professor Audrey Macklin's testimony earlier on, vacation versus cessation—

[Andrew Brouwer]

Thank you you for that question.

We have a range of concerns relating to the designation of countries of safety. It's our first position that it's never appropriate to designate a particular country as safe. Refugees may come from any country in the world, and the reality is that conditions change quickly in countries around the world, so a country that was safe may overnight become very unsafe. The result of the designation is that those people will be denied access to the kinds of protection that Canada should be providing.

In terms of some of the changes that have been proposed in Bill C-31, even as compared to Bill C-11 the last time around...at least the last time around there was to be an advisory committee that included outside advice on which countries were or weren't safe and should or shouldn't be designated. The minister has taken out any access for external advice and turned it into a completely insulated government decision, and we have huge concerns about that.

Beyond that, UNHCR has commented about the designation of countries. My understanding about their position is that they have said that in certain circumstances it may not be inappropriate to accelerate claims from some countries, but even the UNHCR has consistently said that an appeal has to be there even if you're going to designate a country. Bill C-31 takes that appeal away, and, as I mentioned earlier, not only does it take that appeal away, but there is also no real access to Federal Court for people from designated countries.

We're also concerned about the changes at the IRB, about the fact that decision-makers at the Refugee Protection Division now will be civil servants, not people who are put there for a fixed term with some degree of independence. They are now going to be the only people hearing claims from people from countries that their boss has designated as safe. We have concerns about how that is going to be impacting their ability to make impartial decisions on refugee claims before them.

[Carole Dahan]

On detention, Mr. Opitz said this morning that we detain people until their identity is established. That is true today. That is true of the present system. Under Bill C-31, if the group is designated, then they would not be released, even after their identity is established. That is a very significant change.

One of the recommendations would be to eliminate, for designated groups, the one-year bar to having a detention review, and to preserve the opportunity to go before an adjudicator, a member of the immigration division, every 30 days.

We are concerned about identity and about security of Canadians, but once those thresholds have been met, then prospective immigrants should be given the opportunity to present themselves before the ID and have an opportunity to be released. So that would be another change.

[Carole Dahan]

I think we'll split the time because we have different recommendations.

In respect of the basis of claim form, I think the 15 days are untenable and unworkable. The same 15 days are also untenable and unworkable for the RAD.

Right now in the Federal Court we have 15 days to file the notice and then a further 30 days to perfect our record. Now we're going to be asked to do basically the same thing, which is obtain the CD of the hearing, somehow transcribe it, identify the errors, meet with the clients, and then prepare a record identifying the errors for the Refugee Appeal Division. All of that we're going to have to do within 15 days—on top of getting legal aid, having legal aid do a merit screening, and finding counsel. It's simply untenable. It's unworkable. As it stands today, it's simply window dressing. I don't think it's going to help refugees in any substantive way.

Looking at recommendations, one of the basic recommendations would be to extend the time. The Federal Court gives us 45 days to perfect the record. I think that's a reasonable amount of time. In respect of the hearing dates themselves, 30 days and 60 days, that's simply not enough time.

Mr. Goldman alluded to it in his testimony today. There was a time when the board was able to hold hearings within four to six months on a routine basis. It was only after the backlog that it went up to an average of 21 months. Our office routinely got called to schedule hearing dates within that timeframe, so we know it's doable. We know it can be done, and we know a fair and reliable system is achievable. It is an achievable goal. I don't think Bill C-31 gets us any further.

[Andrew Brouwer]

Very practically speaking, we regularly see errors made by the refugee board, problems in representation by previous counsel or by consultants. When they come to us, people are at the very end of the line. They're detained and they're about to be removed, and it's the first time they're getting a lawyer to look over their case and determine that they're actually at risk.

The system we have right now allows at least some access to the Federal Court in certain circumstances, access to a pre-removal risk assessment to raise new evidence, and that's all. That's all we have right now. We also have, in certain circumstances, a humanitarian and compassionate remedy, although that's something that only works in a few kinds of cases, for example, when the best interests of the child are at stake.

Under Bill C-31, none of that is there. So by the time these people come to us, under Bill C-31, there will be little or nothing we can do for them, despite the fact that the evidence demonstrates that they're at risk when they go back.