Citizenship and Immigration Committee on April 30th, 2012

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

We talk often about our great country being known for freedom, democracy, human rights, and the rule of law. I'm really glad you're here today, not just because I'm a fellow lawyer and Osgoode grad, but because what we're hearing is the incredible emphasis that we put on procedural fairness and justice generally. So, I'm really glad that you're here.

I would also ask you to remember that we're also concerned about the legitimate people who come seeking refuge in our country, who come with the scars on their backs, who now have to go through a 21-month or more process. The emphasis isn't all on law and order, although law and order is a very important emphasis. It's also about expediting the process for the people who really need it and need it fast. I would hope that we would all keep that in mind while we keep in mind your cautions about process.

[The Chair, Conservative, David Tilson]

Thank you, sir.

Ms. Sitsabaiesan.

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

Thank you, Mr. Chair.

We talk about the people who come with the scars on their backs. How about the people who come with the scars in their minds and in their emotions, such as a five-year-old child who was traumatized and still has memories of war—but that's just my story.

Under Bill C-31 a designated foreign national found to be a refugee, unlike other refugees, will be subject to restrictions such as that five-year wait to apply for permanent residency. They won't be able to sponsor their families to join them, and of course, they will be subject to reporting requirements.

Are these measures justified in light of the claimant's mode of arrival? It's generally the mode of arrival that ends up having them designated. What is the impact going to be on these people resettling here in Canada if they can't get their permanent residency claim and they can't have their family come here with them?

The questions are for any of you, all of you.

[Prof. Audrey Macklin]

As I mentioned earlier, denial of family reunification delays and impedes integration. It has psychological, emotional, practical, social, and economic consequences for all concerned. Similarly, the lack of a travel document—note that this is not just travel to the country of origin, but travel anywhere outside of Canada—imposes hardship.

In addition, there's something that hasn't been mentioned: a five-year reporting requirement. People are required to report regularly to CBSA officers, and to answer questions and provide documents, without any information in the legislation about why the information is being sought, who it will be shared with, or how it will be used.

All of these cumulatively create and perpetuate forms of insecurity that are harmful and damaging not only to the people concerned, but to Canadian society itself. These are borrowed ideas from Europe, which, as you know, doesn't have a stellar record on integration of newcomers.

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

Do Barbara and Sean want to add to that?

[Barbara Jackman]

I think mode of arrival is not a legitimate basis for making a distinction between people. It just isn't—when they're recognized as refugees.

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

Thank you.

Are any of you aware of alternatives to detention that are being used by other countries to handle mass arrivals of refugee claimants?

[Prof. Audrey Macklin]

We have a bail program in Canada that actually works with respect to detention. Interestingly, it's one that other countries actually seek to emulate.

The mandatory detention of large-scale arrivals has been modelled, I presume, on the Australian example. Australia has found that not only is it bad from a human rights perspective, but it doesn't have the desired objective of deterring future boat arrivals. So it's a failed policy. Australia has actually moved away from it.

As I said, the Canadian practice of facilitating various conditions of release seems to be the one that other countries are seeking to follow.

[Dr. Sean Rehaag]

Yes. Not only did Australia back away from mandatory detention for those reasons, but also, they found that it was extremely expensive. I think that's something that should also be kept in mind. Detention is very expensive, especially if there are other alternatives available.

[Barbara Jackman]

I know that in some places they've gone to geographic restrictions in terms of where they can live. They have to live within a certain city or something like that, which might be a more appropriate way of handling it in some instances, so you know where people are.

[The Chair, Conservative, David Tilson]

You have one minute.

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

I still have one minute? Fabulous.

I want to go back to the revocation of permanent residency status. Who would be subject to automatic PR revocation who would not be subject to it under the current law ?

[Prof. Audrey Macklin]

The two examples I gave were of somebody who comes from a country and has lived in Canada for many years, and where, in that country of origin, circumstances have changed, 10, 20, or 30 years down the road. That person, under Bill C-31, would be subject to cessation of refugee status, as under the existing law, but also, under the proposed law, if refugee status cessated they would automatically lose permanent resident status. That's one.

The other circumstance is situations of so-called re-availment. The minister sounds like he's concerned about people who immediately get refugee status and go back, right? But re-availment—that is, going back to the country of origin—can happen 15 or 20 years down the road, not because they weren't fearful of persecution when they arrived in Canada and made the refugee claim, but again because circumstances have changed in the country of origin.

Those two bases of legitimate cessation are nonetheless not a legitimate basis for revoking permanent resident status, but under the overinclusive nature of BillC-31, those people would be vulnerable. It would be simply a matter of ministerial discretion as to whether the minister decided to initiate proceedings against them.

[Barbara Jackman]

Can I just add that it's not—

[The Chair, Conservative, David Tilson]

No, I'm sorry. We're out of time, Ms. Jackman.

Mr. Opitz.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Actually, it's Mr. Weston who is going next.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Thank you.

Don't worry, Ms. Jackman. I think you're going to get a chance to provide that response.

I just want to remind us of the different types of procedural fairness that we've been alluding to or talking about. There's the charter. There's the Federal Court. There is an appeal built in. There are obligations to other countries or obligations through the United Nations. There's the democratic will of the Canadian people. There's also the role of Her Majesty's loyal opposition, which we're seeing played out here. In all of those things, we're striving for some fairness.

I would just like to quickly review what is sought in the amendments. These are things that we were told earlier this morning by Les Linklater, the ADM for strategic and program policy, and by Peter Hill, who is with post-border programs. They talked about these goals: reducing refugee claims from countries that generally don't typically send valid refugees; maintaining our obligations to other countries; cracking down on human smuggling; detaining people that arrive irregularly; removing individuals within a year when we get a negative determination; mandatory detention to investigate safety and security in ID aspects, which I want to come back to; and maintaining the best interests of the child.

So on the mandatory detention part, the analogy for me is that we're all sad if someone gets foreclosed upon in a mortgage situation. But we have to remember that if the mortgagee didn't have the opportunity to do that at the bank, the banks would never lend money to all of the legitimate borrowers, who would then not have houses and shelter. So we need to have provisions like this in order to make sure that the legitimate people can come through the system.

Would you like to comment on that?

Maybe you would, Ms. Jackman, since you got cut off.

[Barbara Jackman]

You don't need to have this in order to do it. On the concern about smuggling, the offences are increased in this legislation. That's great. On the concerns you have about people abusing the system, speed it up. Make it expeditious. That's the best way to keep the people out of the system who ultimately aren't going to succeed—because they end up being removed back to their country.

But to say that this is directed towards irregular movements.... Refugee movements are irregular. A refugee is by definition a person who can't seek the protection of their state. We've known forever—as long as we've had the Refugee Convention—that refugees arrive without proper documents and without passports and things like that. So to say that this is directed towards them means that it's directed towards refugees, to trying to stop refugees from coming to Canada.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Ms. Jackman, I was in Mexico recently as head of the Canada-Mexico parliamentary friendship group, where I learned that people were advertising in the newspapers that a great way to get several years of free health and other services was to go to Canada and plead that you were a refugee. We had to provide some response to that, and the quick response was to impose a visa on those coming from Mexico, but the long-term response was a commitment to the Canadian people to improve our refugee system.

Mr. Miyagi in The Karate Kid says that the best way to avoid a punch is not to be there. If we can prevent people from making claims when they know they're not refugees, then the whole system will be improved. Surely the system will be improved, and the legitimate ones, the ones who you, in your passion and determination, plead for right up to the Supreme Court of Canada, will get through more quickly. I mean—

[Barbara Jackman]

I just don't understand how the five-year bar addresses that issue. I can understand what you're saying, but how does the five-year bar on recognized refugees address it? It doesn't.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Well, we're acknowledging your question, and it will be something that we will be reviewing, and you can be sure.... We have another 60 or so witnesses coming, so we'll have opportunity to consider that.

[Barbara Jackman]

Well, you're going to hear it—a lot.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Do you have any more comments, Mr. Rehaag?

[Dr. Sean Rehaag]

You mentioned the case of Mexico. I agree that a fair, effective, and fast refugee determination process is much better than a visa requirement imposed on Mexico. I think everyone agrees with that.

That said, though, the mere fact that grant rates for Mexico are somewhere around 15% means that there are quite a few people who are coming here and making unfounded claims, but also that there are still literally hundreds of people in Canada every year who are recognized refugees from Mexico. These often include people making claims based on sexual orientation and people facing gender-based violence. Mexico is not safe for some people.

So then the question is this. Why should the mere fact that there are some unfounded claims coming from one country mean that people who have well-founded claims—sexual orientation and gender-based claims—shouldn't get access to a fair process, with an appeal?

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Menegakis.