Citizenship and Immigration Committee on May 7th, 2009

[Richard Fadden]

Thank you.

You won't be surprised to hear me say that I do not think that it will. There are broad and deep systemic problems with the Canadian refugee determination system. Mr. Kenney has said that, and I think most members of this committee believe that is the case. This is the addition of one more level of review--a fairly limited review, I would point out. It's a paper review with no new evidence and no attendance before the refugee appeal division.

We do not believe this will solve any of the systemic problems either of you referred to, or any other of the systemic problems Mr. Kenney is now actively working on to put in measures to bring before Parliament.

[Alice Wong, Conservative, Richmond, BC]

Do I have more time?

[The Chair, Conservative, David Tilson]

You have a minute.

[Alice Wong, Conservative, Richmond, BC]

My question is about people who came in from Mexico. Ninety percent of them are not genuine refugees. Now, with this addition of Bill C-291, they will be able to stay a much longer period of time. At the end of the day, they're not legitimate; therefore they should not really enjoy the same kinds of benefits in staying here. But with the present system, yes.

I'll give you the example of Mr. Lai. If you tell people about Mr. Lai's situation.... He's been here for ten years. With this Bill C-291, he will have access to another appeal system and maybe he'll stay for another ten years. Of course, we're not here to comment on individual cases. I'm just giving you the amount of time this case has already taken Canada, and it's still sitting there.

So if you could, shed some light and explain what we are going to do to improve the system and if Bill C-291 will again add even more years.

[Richard Fadden]

We believe--

[The Chair, Conservative, David Tilson]

Your time is up, Ms. Wong.

Ms. Mendes is next.

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

He hasn't answered her question yet.

[The Chair, Conservative, David Tilson]

Well, if you'll let him. She took a minute to ask the question.

Go ahead, Mr. Fadden. The committee would like to hear what you have to say.

[Richard Fadden]

We don't think this is going to solve it. The practical effect of having the refugee appeal division will be, I think, that most people who are refused at the refugee protection division will go to the RAD. They will go relatively automatically, and it's not going to cost them a lot of money.

I agree with Mr. St-Cyr when he says that the Federal Court is a bit expensive. The RAD is not. So virtually everybody is going to go to the RAD. That means that whether it's five months or four months or six months, it's going to take time. You need to look at their papers, you need to review things. So to a process that already takes 17 months, without going to the Federal Court, we're going to add five more months.

If, in the end, they are refused, the fact that they have been in this country for an additional five months will mean that their chances of getting a humanitarian and compassionate grant are increased, not because they're refugees, but because they have a boyfriend or a girlfriend, they have children, they've put down roots in Canada. There's nothing wrong with that, except that's not the way we're supposed to deal with refugees.

The longer people stay in Canada, the greater the chance that they're going to go around our system and acquire the capacity to stay in Canada, in practice disregarding our believe that we should treat refugees in a special way.

[The Chair, Conservative, David Tilson]

Okay.

We have Ms. Mendes.

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

If I may, Mr. Fadden, what I'm taking exception to is precisely the fact that we went from two commissioners to one commissioner. When we did that you said it was because there were only 1% of cases where they weren't in agreement. If you have two people in the same room, with back and forth and discussion or whatever, they may come to a consensus. One person alone can decide, on a whim, what decision that person will come to without ever having actually put his arguments or his reasons to test with another person. So when we took that second commissioner out of the process, we didn't provide anything else for the case to be actually debated on. That is my problem, and I keep returning to it, because it remains my problem.

If you don't have an appeals division, then get the second commissioner back into that room. It's either/or, but one needs some kind of security for the applicant that his or her case is going to be fairly treated. That is my point in this.

[Maurizio Bevilacqua, Liberal, Vaughan, ON]

That's a good point.

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

With your permission, I'll add something.

Ms. Mendes' point is very good. I don't think that the arguments about duration, deadlines and opportunities for appeal, which could benefit people who aren't genuine refugees, can be allowed in a system of law. I would point out that criminals and murderers remain at liberty longer because they can file appeals and use a host of remedies. We're not saying we want to get rid of appellate courts and the Supreme Court. We're not doing that because we are in a system of law and justice, and these are values that society has taken centuries to establish. We have to continue fighting to maintain them.

I would like to take this opportunity to raise another point. Earlier I was criticized for drawing comparisons between the acceptance rates of employment insurance services and those of Passport Canada. I would like to recall that the point in making comparisons is to highlight the characteristics of one system that make its behaviour different from that of another.

Why then do the employment insurance services and those of Passport Canada work, and why are their acceptance rates very high? It's because their criteria are well established. When you file a claim, you know in advance whether or not it will be accepted. I willingly admit that the definition of refugee status greatly complicates the handling of cases. I admit it and I'm saying that this is another reason to have a body of well-settled case law.

A number of lawyers, more particularly the vice-president of the Quebec Association of Immigration Lawyers, have previously confirmed to me that they had had no answer for clients who came to see them at their office to ask whether they had any chance of being accepted. They couldn't tell them whether they had a 10%, 50% or 90% chance of being accepted. They were forced to say that it would depend on the board member who heard their case.

[The Chair, Conservative, David Tilson]

Okay, Ms. Mendes, you have a couple of minutes.

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

I would like to ask Mr. St-Cyr a question. I would like to know whether, in the event the appeal system is not adopted, he would agree to return to the system in which two board members examine cases. Would that be an acceptable alternative?

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

What I believe is that the system provided for under the IRPA is better. However, I quite agree with you that it's one or the other: either we keep the system of two commissioners, who can discuss, reflect and exchange views and radically reduce the possibility of error, or we choose the more effective system which is provided for under the IRPA.

I won't back down: we can't go by half measures. We go from two commissioners to one, but we don't implement the Refugee Appeal Division. That's not acceptable, particularly since it's frankly contemptuous of Parliament, which voted based on the submissions of the deputy minister and minister of the time. If you look at the parliamentary debates of the time, you'll see that it was clear in everyone's mind that the compromise in order to move from two commissioners to one was the introduction of the Refugee Appeal Division, and that the IRPA makes no sense if that division is not in place.

We have to maintain a historical perspective and refrain from establishing a different justice system for refugees. I'm convinced that Canadians and Quebeckers would never agree to abolish the Court of Appeal and the Supreme Court on the ground that they are too costly, that criminals remain at liberty longer or that some people would institute more proceedings.

[The Chair, Conservative, David Tilson]

That's it.

Mr. Calandra.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

Thank you, Mr. Chair.

[An hon. member]

Mr. Fadden wants to say something.

[The Chair, Conservative, David Tilson]

Well, you know, if we want to continue.... The only problem is that you told me to watch the clock. But if you want to let him, that's fine.

Go ahead.

[Richard Fadden]

I appreciate it.

I understand, I think, the argument you're making, that at the time Parliament enacted the law initially, there was a bit of a compromise between one to two commissioners and the RAD. But I also think it's important to note that when the system went from two commissioners to one, the acceptance rate did not go down.

I think we have to also consider that just about every quasi-judicial or judicial body in Canada and Quebec, at the first level, is with a single person. Appeal divisions have two or more; UI umpires, one; reviews in Quebec on the health side, one person. I don't think there is anything intrinsically valuable to having two people.

In response to your direct point, though, the acceptance rate did not go down. Both the previous government and the current government considered that given the totality of the system, it didn't merit the RAD.

Mr. St-Cyr is arguing that nobody is going to go out and recommend the abolition of the court of appeal or the Supreme Court. That's not what he's suggesting. He's suggesting the addition of another layer. Nobody is suggesting the elimination of a layer. He is suggesting the addition of another one. So I think it's a rather different argument.

[The Chair, Conservative, David Tilson]

You're next.

[Paul Calandra, Conservative, Oak Ridges—Markham, ON]

Mr. Fadden, now with the benefit of Ms. Chow being in the room, because I know you were disappointed that she was out earlier--

[Jim Karygiannis, Liberal, Scarborough—Agincourt, ON]

Point of order.

[The Chair, Conservative, David Tilson]

No, Mr. Calandra, don't start something here.