I am critical of the legislation, and I just want to make a couple of opening statements on my position on this legislation.
First of all, immigration is about the management of people. The rules apply to individuals, and if the rules are absolute and strict, people fall through the cracks or don't have their cases looked at in a way they should be looked at because they don't fit within the criteria properly.
Secondly, we have the Charter of Rights and Freedoms. You as parliamentarians are responsible for ensuring that the legislation complies with the charter. One of the things that has always bothered me—and I've been practising for 35 years in this area—is that legislation parliamentarians have passed gets twisted in the practice. People you never intended to exclude from protection are excluded because you didn't understand the consequences of the legislation you were passing. I don't believe that people here would have passed some of the legislation that's been passed that has harmed people if they had known that was going to happen.
Thirdly, every time you put an absolute bar in legislation you make it open to challenge, because absolutes often don't comply with the charter. For example, persons who are excluded from the system may have good reasons to have their refugee claims determined. For a person who has lost their pre-removal risk assessment there's a 12-month bar on making another application. It may be that conditions in the country changed before they were moved, but by making an absolute and prohibiting them from being able to make a second PRRA if the conditions warrant it, you force them into court on a constitutional challenge. That's the problem with absolutes.
I know there is concern that lawyers will have a self-interest in coming before you because we make our living from representing refugees. Believe me, we will make a lot more if you don't change this legislation than we will ever make if you make it a fair process. So that is a lame excuse for ignoring the kinds of things we say.
I have spent my entire practice challenging legislation that is unfair. We have been fairly successful from Singh in 1985 to Charkaoui in 2007. I can tell you that Charkaoui is based on absolute detention without a review.
When I read the first bill I couldn't believe it. We spent years challenging arbitrary detention without having a timely review of the need for detention. We finally won in the Supreme Court in 2007, and then you turn around and put in legislation that arbitrarily detains people for a year without a review. That's not appropriate. The Supreme Court just said you couldn't do that, so why is it being done now? I don't understand it. It's opening the legislation to challenge. Maybe the government thinks it will stay in place until the court strikes it out, and will achieve their purpose. That's not the way to pass legislation to govern immigration to Canada.
Fourth, the present system works. If you have ever sat in a detention review before an immigration division member, the government wins most of the time. If the government wants a person detained they are likely going to be detained until you can work out an agreement with the Canada Border Services Agency to have them released. Neither the immigration division, the refugee protection division, nor the federal court are particularly sensitive or sympathetic to the rights of non-citizens. The government has the highest success rate, not the person.
The system works fine the way it is now. You don't need to arbitrarily detain people when you have a member of the immigration division who's going to do it anyway. If there's a need for the person to be released, that member will release them. That's as it should be, because some of the people who are detained are victims of horrific events in the past. I think it's wrong to arbitrarily detain a person for a year who is suffering from post-traumatic stress and has experienced severe torture. We've seen people like that. I have one client who doesn't have a jaw and was detained for six months. He doesn't have a jaw because he was bombed in a war. That person shouldn't be in detention for an extended period of time, because it just exacerbates the problem.
The last sort of general point is that in the end we want whomever we accept as refugees to integrate and be functioning members of society. You cannot do that if you first punish them by detention for a year, if you bar them from being able to bring their families. How best do people settle and integrate? They settle and integrate with family members with them. That's not in this legislation. Instead, even though we have an obligation in international law and under our charter to allow these people to remain in Canada, we cut out the possibility of them being able to settle successfully.
I have clients who are on disability because their cases have not been settled for an extended period of time. Over time I see the decompensation that they go through. I see the destruction of their lives and the integrity of the person, the breakdown. It's not fair, it's not human, and it's not in keeping with our humanitarian tradition towards refugees. If we're going to keep them, treat them fairly. We have an obligation to keep them if they are refugees.
There are a couple of specific points that I know are not going to be covered by other people. One is the travel documents. This legislation prevents people from getting travel documents until they are permanent residents. You don't realize that travel documents have been an escape for our clients. I have clients who are in limbo. Canada has decided it will not deport the person, but it will also not land them. So some of them have been here 10 years, 20 years, 30 years, or longer. During that time, if you take away the right to the travel document, which is a right under the convention for refugees, for people who are recognized as refugees, they can't even travel out to visit family.
In one of my client's cases, she has a relative who's a doctor. She can get medical care from him in another country. She can't get it in Canada because she's not landed. It's an important escape valve for people. It's important to let them be able to make necessary trips on travel documents, even if they're not landed, particularly as this government will just allow people to live in limbo. It's not just this government; it's the government before. These cases go back 10 to 20 years. We're not deporting them, so at least let them travel.
Again, I'm picking up on different points that I know are not likely going to be covered from reading the briefs that have been put before you. One is the inability to reopen for a breach in actual justice. The legislation amends section 171 to prevent reopening of refugee claims if the person has already lost on the refugee appeal or in the Federal Court.
I'm not sure you can do that. You can certainly cut out an appeal, but you can't cut out an appeal on arbitrary grounds. It has to be on grounds that make sense. The grounds for restricting the appeal in this case are not logically related to the concerns of the legislation, in some instances. Certainly, on a failure to permit reopening where there's been a breach in actual justice, I don't think you can do that. The charter doesn't let you do that. If there's a breach in actual justice, the proceeding is annulled. The decision can't be acted upon. There has always been a right to go back and say, “Look, for some reason, you missed the fact that this person is mentally challenged, and you should have looked at it. The case should be reopened and considered again”.
The last point I want to make is on the bars and any way out of the five-year bar. If you're a designated foreign national, you're barred from landing for five years. If there's any kind of breach of your conditions of release, it's another 12 months after that, so it can be a long period of time. Then it takes two or three years to get landed, so we're looking at 10 years for some people to be able to settle with their families in Canada. That's wrong. That's far too extended.
There isn't any way around that. I don't know if you realize this legislation cuts out temporary resident permits, and humanitarian and compassionate. Humanitarian and compassionate discretion, a discretion to allow people to get out of the restrictions of the act, has been there since we've had legislation, with no restriction. Since 1910 we've had legislation, and there has always been a discretion.
This legislation started the last time to restrict the humanitarian and compassionate discretion, but not restricting who had access to it. This restricts who has access to it. That is unheard of in our history. If you take away that kind of discretion, you force us into court. And you're going to end up with a constitutional challenge, in which, I bet, at the end of the day, the court's going to say, you have to let someone make an application, you have to have this considered because there are too many human rights engaged by the process for you to be able to just cut it out. So you're just asking for a challenge. Why do that? Why not make it right to begin with?