Citizenship and Immigration Committee on April 30th, 2012

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

You can use whatever verbiage in terms of what you would like to see, but it is being humanitarian and compassionate by accepting someone whose lifestyle may be unaccepted in their country of origin but is accepted here in Canada, and we're prepared to offer asylum to that individual.

[Barbara Jackman]

Let me just clarify.

In order to be able to meet the definition of refugee, the person has to show they would be persecuted, not have an uncomfortable life, but persecuted. They will not get a humanitarian consideration from those countries, as I understand it, which is a lesser standard. They may never be able to live comfortably in that country and will always face discrimination, but it doesn't reach a level of harm.

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

You have acknowledged, though, that you were unaware of the fact that they will be able to qualify.

[Barbara Jackman]

I agree on that level.

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

I appreciate that.

Mr. Rehaag, your original point is of interest to me. I agree with you that it's hard to argue with statistics when you look at the decision-making process and those who make the decisions at the IRB. There are those who approve almost everyone and those who approve almost no one.

You're aware that under Bill C-11 and under this current legislation we will be moving our process from appointed individuals to 100 individuals who will be part of the public service. Therefore, that process will change significantly in terms of where it is now, where it has been in the past, and where it will go in the future, thereby taking direct aim at the statistics that you cover and obviously are able to show.

[Dr. Sean Rehaag]

Trying to enhance consistency at the first instance, at the refugee protection division, is an important objective. Even if there's some way of enhancing first instance decisions, one of my points is that errors are inevitable even in the most robust processes in Canada. In criminal law processes we know that occasionally we get decisions wrong. If we make mistakes in these procedurally robust processes, then clearly we're going to make mistakes in less procedurally robust administrative processes. It's still important that people have access to a refugee appeal division. That would be one point.

The second point would be the experience of other countries that have civil servants as first instance decision-makers is that the vast majority of claims are rejected at the first stage. It's really at the second stage, the appeal stage, where people typically get through.

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

Do you think we should just leave the system the way it is then?

[Dr. Sean Rehaag]

I don't think we should leave the system the way it is.

I am pleased to see, for example, in the Balanced Refugee Reform Act, that the government finally indicated that it was going to implement the refugee appeal division. This is something that the people who have been working in the refugee law area have been asking for since 2002. There are ways of improving the system. I think the Balanced Refugee Reform Act did that. I think an appeal for all refugee claimants is particularly important.

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

I do. I think that's why the legislation allows for an appeal for each and every person. Now there are two different streams, but it certainly allows for each individual—

[Dr. Sean Rehaag]

It doesn't allow for an appeal on the merits for certain groups of claimants including those—

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

From designated safe countries....

[Dr. Sean Rehaag]

—from designated safe countries. Those are not the only people who don't get access to an appeal. Designated foreign nationals don't get access to an appeal. People who come to Canada via the United States don't get access to an appeal. People who have their refugee claims cessated or—

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

Why do you think it is that those who have come through the United States wouldn't have direct access to an appeal? Do you think they would have gone through the process in the United States, not passed, and then come to Canada?

[Dr. Sean Rehaag]

To come to Canada from the United States, you have to fit into a narrow exception from the Safe Third Country Agreement. That includes things like having family members in Canada. It's perfectly reasonable for someone who is a refugee, who happens to find a way to the United States, to want to come to Canada to make a claim here instead of in the United States. So there's no real rational reason that person shouldn't be able to get access to an appeal.

I think it's particularly important—

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

Everyone does have access to an appeal. You may not like that the access to an appeal is “on its merits”, and I respect your perspective on that. But to categorically state that there are no grounds for an appeal is incorrect.

[Dr. Sean Rehaag]

Well, there is access to judicial review. Judicial review is not an appeal. It's not an appeal on the merits.

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

Okay, you just acknowledged my point. There is access to an appeal. You may not agree with the appeal process. You may think it's wrong, and I respect that. But to say that there isn't an appeal at all is factually incorrect.

In any event, I don't have much time, and I wanted to ask Ms. Macklin—

[The Chair, Conservative, David Tilson]

You're out of time.

Ms. Sims.

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

Thank you very much. I want to thank the three of you for coming to make your presentation.

The one thing that really hit me as you were speaking is that you brought us back to looking at the human element involved when we're talking about refugees. We are not here to talk just about the smuggling enterprise. We already have the ability to punish the smugglers, and we're all for that, but this is about the human element.

I have a number of questions, and I'm going to ask you to keep the answers brief so that I can get through to everybody.

Audrey, I have a question for you. You provided two scenarios in which people would be losing permanent resident status under Bill C-31 that they would not have lost under the current system. Can you expand on the problems in these cases, and talk about how you would amend the bill to address these problems?

[Prof. Audrey Macklin]

I hope you can all agree that the examples I gave are not circumstances that would make you think that this person has engaged in a form of misconduct that legitimatizes an automatic revocation of permanent resident status.

Bill C-31expands the possibility of revocation in a way that renders it overinclusive. That means that it includes people and penalizes people who, as I understand from the minister's comments, are not intended to be the targets of this provision. Nevertheless, the law includes it.

What's the problem with overinclusive legislation? Well, there are a couple of problems. One is that it puts everybody who might be subject to it in a position of insecurity and fear. Second, it grants the minister discretion that is in no way tailored to the legitimate purposes of the legislation. It therefore opens the risk of arbitrary exercises of power. I think those are two significant concerns that can easily be ameliorated by tailoring the legislation in a way that legitimately responds to what the perceived need or policy objective is.

I propose two of them here. I can lay them out in greater detail, but I'm conscious that you wanted a brief answer.

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

Thank you. You've answered the question.

Sean, I have a question for you. Can you expand on the reasons the right to an appeal is so closely linked to the rights to life and security?

[Dr. Sean Rehaag]

I think it relates to the question of the stakes involved in refugee determinations. If people are refugees, it means that they have a well-founded fear of persecution, torture, or death. And if we don't recognize them as such, they could be sent back to a country where they will face that form of persecution. Because of those really high life-and-death stakes, the Supreme Court has found that the process has to comply with the principles of fundamental justice. And one of the principles of fundamental justice is access to a meaningful appeal.

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

The recent arrival—it wasn't so recent—of the boat from Sri Lanka that has given this legislation some push certainly points out the potential for many of the people who came on that boat.... Many of them have been proven to be legitimate claimants. Yet we're proposing a system that is going to basically start criminalizing people who are coming here after they have already suffered horrendous hardships.

Would you like to expand on the number of ways this bill increases and concentrates power in one person's hands, which are the minister's hands? Any one of you can take this.

[Barbara Jackman]

This isn't just a refugee issue. Under the present legislation as it was amended, the minister can make instructions. I can tell you as a practising lawyer that I'm not even on top of all the instructions he's issued. Every day practically there are new instructions, fundamental instructions that change practice, giving the minister more power to issue fiats without anybody questioning what he's doing is wrong.

I know we've gone to framework legislation in which a lot of it is done by regulation, but to give a single person power to issue instructions, for example, to cut out parental sponsorships, which we've had since time immemorial, to cut out all the people in the pre-February 2008 backlog just because the minister wants to do it, with nobody questioning what's happening, that is really an awesome power and it should not be there. That is not democratic, and to add more to it is completely wrong.

I can't even keep on top of it. There were about 10 of them in the last two weeks with changes every day. Who on earth can practise like that? How are people supposed to know what the law is in Canada if the minister can just turn around, sign a piece of paper and it's gone the next day? That's wrong. There should be oversight for what's happening. There isn't any.

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

Audrey.