Yes.
Like Mr. Showler, I gave qualified support publicly to the bill when it was introduced, because I believed that it was a good start. Having said that, I agree with Mr. Showler that if changes aren't made to the bill in its current form, the bill will create serious problems. It will certainly result in charter challenges, and I believe that it will undoubtedly fail. That's why I think the work of this committee is vital, because in the end, we all want a fair and efficient refugee determination system.
Some of us, like me, have been through this before. I can say that I was present in 1976, when the Immigration Act was enacted. I was present in 1989, when the IRB was created. I was present in the mid-1980s, when there were significant changes to the procedure. I was also present in 2002, when the procedure was changed again, and I am present again today.
We've seen it. We've heard the promises of the officials over the years that this was the solution. And each time, we've seen that their proposals have not succeeded, because to a very large extent they've ignored the representations of experts.
My first point, and I agree completely with Professor Showler, is that the essential issue is that we have to have competent first-level decision-makers. Over the years we've seen that there have been two practices. The first has been to not appoint competent decision-makers. The selection process has not been satisfactory. The second has been to underfund the process.
The first condition of any successful determination process must be that the system must be one that allows for the appointment of competent decision-makers. I agree with Professor Showler that the decision-makers should be appointed by the chair or under the power of the chair. And the government must make a firm commitment that it will ensure that the appointed decision-makers have adequate resources to cover the quorum needed to make the necessary number of decisions.
The second issue here, in terms of the proposals, is the timing. Again, I agree with Professor Showler and the other witnesses that the timing is completely unrealistic. It's been suggested that because the eight-day interview is only an information-gathering process, the information will not be used against a person. That is completely untrue. In any procedure during which information is recorded and kept, that information can be used at the subsequent hearing to undermine the credibility of the witness. It can be used to point out inconsistencies or omissions. That's why it's vital that the refugee claimant be afforded legal advice before he or she is called in for the interview. That's why an eight-day time period is completely unrealistic.
Even more unrealistic is the 60-day hearing process. To legislate a timeframe--it won't be in the act, but it will be in the rules--that is not going to be complied with really undermines the rule of law. We already have one example of that. At the current time, IRPA requires a Federal Court judge to set down a judicial review of an immigration matter within three months of the date on which leave was granted. Now, because there are too many hearings required in Toronto, and they don't have enough slots, the Federal Court routinely looks at these leave applications, sets them aside, because they don't have slots, and issues the orders months after leave has been decided. That is done to create the legal fiction that they're complying with the act, when everyone knows that they're not. It really undermines faith in the rule of law when you have justices of a court who don't comply with the law because they physically can't. The problem is not the court; it is a law that requires them to render decisions within timeframes that are impossible, given the resources available to the court. So the timeframes are completely unrealistic.
The next issue, of course, is the safe country of origin list, the SCO list. I'm sure that other people have discussed it, so I won't say too much. In my view, a list is not necessary. If the system is adequately funded at both the first level and the second level, the system will be able to deal with the claims in an expeditious fashion. To create a list to create different categories of claimants, some who get appeals and some who don't, in my view is unnecessary and unfair.
Having said that, if you insist on creating a list, I agree with all the recommendations of all the previous speakers with respect to the types of requirements that have to be incorporated into the legislation.
I'd like to speak very briefly about the last point, which is the one that I think concerns me more than any other, and that is restrictions on the humanitarian and compassionate process. The H and C has been part of our humanitarian tradition in Canada for many, many years. Indeed, the Supreme Court, in the case called Jimenez-Perez, in 1984 upheld the fact that immigration officials were required by law to consider humanitarian applications. I've dealt with thousands of persons whose lives have been saved because of the possibility of applying and being accepted on humanitarian and compassionate grounds. It's been the one aspect of our immigration process that's been constant through the years, and it's consistent with our humanitarian tradition.
This legislation will seriously undermine, or in some cases effectively eliminate, the right that people will have to apply on humanitarian and compassionate grounds. In its current form there's an absolute bar to applying once you've made a refugee claim during the entire proceedings, and for a year afterwards. There's no reason for it. The existence or not of a humanitarian application has been held repeatedly by the courts to not have any impact on a person's right to stay in Canada. You can apply for a stay, but they're very infrequently given, and in any event the number of stay applications is relatively small.
Taking away this right, though, has very serious implications. And I'll close by giving you one example. Last week I was in the Federal Court of Appeal on a case that has interest because it deals with the interpretation of the convention. The government lawyer was taking a very extreme position and said the convention should be interpreted in a certain way. One of the justices of the Court of Appeal said, “Well, if that's the case, you're putting people in situations where they're going to be denied refugee status but they could be at risk. What's their remedy?” And what did the lawyer say? The lawyer said what lawyers always say, that there's always a remedy, and the remedy is the humanitarian application, because that's been the last resort that's existed.
It wasn't me saying it. It was the lawyer for the government saying it, to which the Federal Court judge said that if the legislation that's currently before Parliament gets passed, that remedy will no longer exist. I'll tell you that if it gets passed, you'll force us to challenge the legality of that restriction under the charter, because there will be many cases that will arise where people will have compelling cases but will not be able to bring them forward through the legal process.
Those are all my comments at this point. Thank you.