Citizenship and Immigration Committee on June 1st, 2010

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

So it remains the same.

[John Butt]

It's the same as today, subject to those provisions that are in the bill already with respect to limits on access to applications on humanitarian and compassionate grounds.

[The Chair, Conservative, David Tilson]

Mr. Bevilacqua.

[Maurizio Bevilacqua, Liberal, Vaughan, ON]

As a follow-up, in a nutshell does this move increase or decrease ministerial power and discretion?

[John Butt]

I suppose inasmuch as the minister will no longer be making risk assessments on the vast majority of persons who are being removed from Canada, it would seem to decrease overall his range of authorities on that particular point. But he has other authorities that he can exercise where circumstances warrant it.

[Luke Morton, Senior Legal Counsel, Manager, Refugee Legal Team, Legal Services, Department of Citizenship and Immigration]

I would add that currently the legal structure is that the PRRA officer is a delegate of the minister, so that will change, obviously.

[Maurizio Bevilacqua, Liberal, Vaughan, ON]

Mr. MacDougall, I didn't have the benefit of being here in 2007 as a member of this committee. Some people were here. I'm just wondering, on the recommendation that was made to proceed with this transfer, can you tell me just the salient points? What were the reasons for doing that? What did the committee recommend?

[Peter MacDougall]

I don't have it in front of me, but I believe the two salient points were the consolidation of risk in one body, and the fact that the committee believed the IRB would be more efficient because it already has a comprehensive training regime and a very sound and comprehensive body of research available to officers.

[Maurizio Bevilacqua, Liberal, Vaughan, ON]

Why is it important to have the risk assessment under one umbrella?

[Peter MacDougall]

Well, it's largely an efficiency argument. The mandate of the IRB is risk. CIC also has some mandate for that. It obviously has been doing that, and it will continue to do a small number of PRRA assessments should the transfer be approved.

It's simply a question of efficiencies. You're more likely to have consistent decision-making if it's consolidated in one organization.

[Maurizio Bevilacqua, Liberal, Vaughan, ON]

A lot of this debate is centred around the protection and/or enhancement of rights for individuals. Does this move affect the rights of individual claimants in any way?

[John Butt]

No, it doesn't. Everybody who currently has an opportunity to submit a pre-removal risk assessment will have an opportunity to do so in the future. The vast majority of those applications will be considered by the Immigration and Refugee Board.

A small number of persons who are serious criminals, as I mentioned before, persons who are excluded from refugee protection by article 1F of the refugee convention, persons who are subject to security certificates--these would be retained at the ministerial level. The minister would make those decisions, delegated in most cases to senior officials of the department.

[Maurizio Bevilacqua, Liberal, Vaughan, ON]

To follow up on a question asked by Mr. Karygiannis, how does the role of a member of Parliament, as an advocate for a refugee claimant, change in this instance as a result of the transfer?

[John Butt]

If the issue is whether the member can make direct representations to the decision-maker, as is the case with the refugee protection division today, to my understanding, members of Parliament cannot make direct representations to the decision-maker, so in the future that would still be the case...

Well, Mr. Karygiannis corrects me. I'm not sure that... I'm not as experienced with interventions by members of Parliament, so I don't know exactly what they can and cannot do in any particular case. But my understanding, from his comments earlier, was that he was of the view that with this change they would not have the same opportunity to make submissions in the future as they had before.

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

May I say something, Chair?

[The Chair, Conservative, David Tilson]

If Mr. Bevilacqua's finished, you can.

[Maurizio Bevilacqua, Liberal, Vaughan, ON]

Basically, the rights are not going to be affected.

There are some efficiencies that you speak of. When you speak about efficiencies, Mr. MacDougall, are you referring to efficiencies as they relate to the cost of administering the program?

[Peter MacDougall]

No, I'm referring to efficiencies in terms of faster decisions. Right now, I think the average time for a PRRA is something like nine months. I'm not going to give you a time, as the IRB model's not in place, but we expect that the time will be shorter, because the workload will be better distributed and the decision-maker will be focused solely on making decisions and will not be doing all the preparatory work that is necessary to make a decision.

[Maurizio Bevilacqua, Liberal, Vaughan, ON]

Okay.

Thank you.

[The Chair, Conservative, David Tilson]

Before Mr. Karygiannis asks a question, returning to the IRB business that he's raised, a lawyer could appear as a lawyer. I suppose someone else could appear as an agent, or I assume so; I don't know whether I'm right or not. And then one asks the question: can a member of Parliament act as an agent?

There's always that fine line between someone who represents the government or is a member of Parliament interfering in a quasi- or actual judicial process. There are always the optics of that. I think I know where he's going, but it's a legitimate question, a legitimate area.

There's no question about it that we have to be very careful that politicians don't interfere in a process. But at the same time, they may have gained expertise, and they may be able to advise people. Can they go that extra step and be an agent of someone who's making an application? Or is that deemed to be...?

Have you discussed that? Is that person deemed to be interfering, as a politician?

[John Butt]

Certainly the person can have representation, legal counsel or a consultant, to assist in the preparation of their application and to appear with them at any oral hearing that the decision-maker determines is necessary pursuant to the provisions of the legislation. There's nothing that explicitly refers in our legislation to the role of members of Parliament. There's nothing that says they cannot act in the role of counsel. It's a matter of what is the appropriate protocol for a member of Parliament, recognizing perhaps the possibility that his or her presence might be perceived as affecting the decision-maker in a way that's not necessarily consistent with the role of a lawyer or a representative.

[The Chair, Conservative, David Tilson]

My answer--I'm sorry, Mr. Karygiannis--is that I've had people ask me if I would appear as a member of Parliament in, say, a small claims court action, or indeed a criminal law action. I've said, no, you have to get a lawyer for that, and if you can't afford a lawyer you make an application for legal aid or you get someone else.

In my opinion, I would be interfering, as a politician, in the criminal courts or the civil courts, and I have just said, no, I won't do that. I wouldn't even give them advice.

Hence, I think that's where Mr. Karygiannis is going; in the past, a member of Parliament might try to help people stickhandle through sometimes very complicated processes and advise them how to do things, because they have access to ministry staff.

I think I have talked enough, but I think Mr. Karygiannis has a legitimate point. I don't think that the member of Parliament would be appropriate--because this is a quasi-judicial thing--to appear as an agent. I don't believe that would be appropriate. But then there's that fine line between advising the person and asking questions of others, as to whether that's interfering in the process.

So I've talked enough.

Mr. Karygiannis.

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

As it stands right now--correct me if I'm wrong--if an application has been made to an officer of PRRA, which is an agent of the minister, a representative from one of our offices can pick up the phone, call in, and say, look, I just got a fax, an e-mail, some new information that I want to submit to you.

Three-quarters of the time, the officers do not return phone calls to consultants and their lawyers. A lot of the times, lawyers will end up calling our offices, or the constituent will come in and say, “Can you please help me get this information to this person who is looking after my file?”, or whatever it is.

A phone call from an MP, a phone call from an MP's office, will be returned much faster than one from a lawyer or a consultant. Then you can say, look, I have some new information that I want to send you. As it stands right now, contacting the quasi-judicial body and saying that I have some new information that I want to send you, or speaking to someone who is making a decision, could be deemed to be unethical from our ethics point of view, from our commissioner of ethics.

So I have difficulty in moving in the direction unless something is brought in that says should we need to contact, or should our offices need to contact, the individual who makes the decision, then we can contact, and we don't have the difficulty of a quasi-judicial situation.

If somebody comes to the refugee board, the IRB, to begin with, and they're making their case in the first step, well, that's information that they deal with; it's a lawyer, and it's somebody who sits as a judge. But somebody who is making a decision about the PRRA, that individual--I'm not sure if he's going to be a member of the board or if he's going to be a civil servant--you can pick up the phone and call.

So you're making a decision, everything has been submitted, and all of a sudden the individual's house is attacked. As a case in point, last week in Pakistan, on Friday, 200 people were killed. That's new information. Now, the PRRA officer might have that information, he might not. He might not understand that the Ahmadiyya sect was attacked, the two mosques. If the IRB member is not aware of this and I want to pick up the phone and call in and say, “Look, there is some new information here”, I could be in difficulty.

So I don't have the comfort level; you're not giving me the comfort level that would allow a member of Parliament, any one of us around the table, to be able to do that at the quasi-judicial body--not influence the decision, but get information to it. Right now we can, because when you're issuing a PRRA, the officer's name is at the bottom and a phone number is at the bottom. If you don't like that, then you pick up the phone and call the manager. You say look, there's some new information, would you please consider it and give it to your officer?

But in going to the quasi-judicial body, you have not left me with a comfort level that tells me that my office, I, or anybody else around this table is able to do that. So unless you want to stick something in here that allows us to do that, I have a difficulty. The difficulty is that we would not be able to serve our constituents to the best of our ability for those of us who want to go the extra step.

[John Butt]

There's nothing in the legislation today about the role of members of Parliament in any of the decision-making responsibilities under the Immigration and Refugee Protection Act. These are all administrative arrangements that are put in place.

In the decision-making process, the person has the right to make any submissions of evidence or information they wish. If they make a submission to the board before the decision-maker has made a decision, certainly the member is expected to take that into account. If the member did not take that information into account, then any decision would be subject to judicial review in the Federal Court. So there are ways to correct any failure of a decision-maker under the act to take into account the information submitted to him.

I don't know your experience in terms of contacting pre-removal risk assessment officers. I am not surprised to hear that the officers do not return your call. The appropriate--

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

No, no. I said that they don't return calls of consultants and/or lawyers. They do return phone calls to members of Parliament.