Citizenship and Immigration Committee on April 30th, 2012

[Prof. Audrey Macklin]

The two other areas in which it happens in Bill C-31 are the designation of countries as safe and the designation by the minister of people as so-called irregular arrivals. It's important to know that these instruments are not actually covered by the Statutory Instruments Act, so they are not subject either to parliamentary oversight or even to the process for regulatory rule-making by cabinet. This causes actual concerns about democratic legitimacy. What it does is it gives a minister the power to make law. That's different from a power to exercise discretion. It's actually a power to make binding rules, and sometimes rules which, it turns out, are inconsistent with regulation, and possibly, arguably, on occasion, inconsistent with legislation.

Quite apart from what you'd take to be the merits of the content of any instruction, I'd suggest to you that the practice of ministerial instruction itself, from a democratic perspective, from a parliamentary legislation perspective, is on shaky legal ground.

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

Thank you very much.

Did you want to add anything, Sean?

[Dr. Sean Rehaag]

Only to reinforce what Barb has said, that the pace of change through ministerial orders over the last six months really has been remarkable.

[The Chair, Conservative, David Tilson]

Thank you, sir.

Mr. Lamoureux.

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

Am I out of time already?

[The Chair, Conservative, David Tilson]

You are indeed.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Rehaag and Ms. Macklin, I want to focus my questions on the two of you.

The first is a rather bizarre question, but I want to ask it. Will your level of income over the next number of years diminish as a direct result of the passage of Bill C-31?

[Prof. Audrey Macklin]

I'm an academic. I don't make any money off any of this. I'm not employed by—

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Rehaag.

[Dr. Sean Rehaag]

Yes, me neither.

[Barbara Jackman]

Let me tell you, I'm losing money by coming here.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Thank you.

The minister has said he is confident that Bill C-31 is charter compliant. Very briefly, do you believe that to be the case?

[Prof. Audrey Macklin]

There's a line from a movie, “Show me the money”. It's kind of like that: show me the legal opinion that says this is charter compliant.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Rehaag.

[Dr. Sean Rehaag]

I don't think it complies with the charter, no.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

You're both familiar, no doubt, with the 1951 Refugee Convention. That convention talks about the importance of family unity. Where I'm going with this is in regard to the minister's ability to prevent families from being reunited through sponsorships if they're detained for a year. I'm wondering if you can provide any comment on whether you believe this legislation might be in contradiction to the 1951 Refugee Convention.

[Prof. Audrey Macklin]

It's not only inconsistent with the 1951 convention, but perhaps of greater salience to the people here, it's inconsistent with the purposes of the Immigration and Refugee Protection Act, which is to see that families are reunited in Canada.

It is well demonstrated through empirical evidence across jurisdictions that integration happens most effectively when families are reunited. Bear in mind that the people who are subject to this five-year limbo and ban on family reunification are people who have been determined to be refugees, people in need of protection. These are people whom Canada has determined to be in need of protection. To deny them family reunification, as I understand from the minister's comments, is designed to punish them.

The question then becomes, why are we punishing refugees?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Finally, this was picked up from the NDP critic, and I would like a bit more of an explanation. Can you enhance, in particular, the Rwandan example that you provided? Could you just embellish on that a little?

[Prof. Audrey Macklin]

One of the grounds for cessation is what is called a change of circumstance. It says that a person's claim can be cessated if the reasons for which the person sought refugee protection have ceased to exist. This can be raised at any point. It can even be raised at the refugee hearing if conditions have changed between the time a claim has been made and the time of the refugee hearing.

You can imagine that a change of circumstance happens halfway around the world. Somebody, like this person from Rwanda I'm describing, is here in Canada and is doing nothing wrong. He is leading a life, working, raising a family, contributing to Canadian society. Halfway around the world, the situation in Rwanda changes. What, then, does this legislation suggest? It indicates that the minister can seek cessation of refugee status because of a change in Rwanda and this person is automatically deportable from Canada. That is automatic, with no appeal to the immigration appeal division.

What this does, of course, is uproot that person's life. It is as if these years they have spent in Canada building a life, contributing to Canadian society, don't matter, don't exist, are erased. That's the significance of this provision.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

In conclusion, do you find that the best thing to do with this particular bill is to just throw it out and start again? Or do you believe it's better to amend it?

[Prof. Audrey Macklin]

Is that the bill in general or this provision?

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

It's the bill in general.

[Prof. Audrey Macklin]

I think that the Balanced Refugee Reform Act seemed to address many of the legitimate policy objectives that the government seeks to attain under Bill C-31. What Bill C-31 adds to it are provisions that are unconstitutional, and from a policy perspective, I think, problematic and unlikely to achieve what they claim.

Let me just say that with respect to clauses 18 and 19, what is being portrayed is a lack of power to deal with people who, let's say, arrive in Canada, acquire refugee status, and then take a holiday back in their country of origin. That's the scenario, right? There is no lack of power to deal with that situation under the existing law. There may be a lack of resources. There may be a choice not to deploy the resources to deal with those situations, but there is no lack of power. There is ample power.

[The Chair, Conservative, David Tilson]

Thank you, Professor Macklin.

Mr. Dykstra.

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

Thanks.

I just want to conclude a couple of things on clauses 18 and 19. I know that the recommendation you brought forward was to delete clauses 18 and 19. Aside from having that as a preference, what are some options?

You don't even have to answer that today. If you want to provide this committee, through the clerk, with some options that would clarify both clauses 18 and 19, to address the issues that you're speaking to, that would be much appreciated.