Citizenship and Immigration Committee on April 30th, 2012

[Noa Mendelsohn Aviv, Director, Equality Program, Canadian Civil Liberties Association]

Now you have the whole thing.

[The Chair, Conservative, David Tilson]

Nathalie Des Rosiers is the general counsel.

Good afternoon to you.

Each group will have up to 10 minutes. We'll start with Ms. Taub.

[Julie Taub, Immigration and Refugee Lawyer, As an Individual]

I'm just wondering if everybody got my brief, bio, and background information.

[The Chair, Conservative, David Tilson]

Yes.

[Julie Taub]

I don't want to dwell on that. Suffice it to say that I am a former member of the Immigration and Refugee Board, and an immigration and refugee lawyer in Ottawa exclusively since 2001. Previous to that, I was on the refugee board.

I think it's important to refer very briefly to my personal background, so you'll have a thorough understanding that I have not only professional but also personal, in-depth knowledge of what a refugee is. I am a sister of a child Holocaust survivor, and I am a child of my late parents who were Holocaust survivors, so I know what it is to be a refugee.

My late mother and my sister, who is much older than me and still alive, survived Ravensbrück concentration camp. My late father escaped a labour camp in Germany and got back into Czechoslovakia, and hid out in the Tatra Mountains during the war. He managed to save his elderly parents and for some time he hid with the partisans, that is, with the resistance groups, and finally he hid in a bomb crater and was rescued by the Soviet army.

From that experience, I wish to address the committee today.

I'm here to support Bill C-31. I might also add that I have represented hundreds of refugee claimants. Since 2001, I have had claimants from Sudan, Nigeria, the Democratic Republic of Congo, Eritrea, Djibouti, Somalia, Ethiopia, Uganda, Lebanon, Syria, Egypt, Morocco, Algeria, Colombia, Venezuela, Haiti, Cuba, and even Mexico. That list may not be exhaustive. I certainly didn't have a chance to review all of the clients I've had in the last 11 years.

Recently, I've had some hearings for Eritrean clients in January and February, which were outstanding from late 2009 and 2010. I have at least a dozen outstanding refugee claims from 2010 that still haven't even been scheduled for hearings.

I support the accelerated process that the minister has brought forth, because waiting two or three years to have a hearing is completely ridiculous.

As we all know, and I'm sure you all know, the Holocaust was the basis of the 1951 international convention, and its updated protocols in 1967. This convention was not drafted to serve an industry of criminal smugglers, the people who may or may not be genuine refugees, or to facilitate asylum shopping, that is, asking which country one can get into to get the most generous benefits and highest acceptance rate.

It was not drafted to even consider claims from citizens who come from established democracies. I'm not talking about those where the qualitative and quantitative criteria set by the minister can vary from year to year. I'm talking about established democracies that have evolved over the centuries, such as the United States, New Zealand, Australia, the European Union countries, and even Japan since World War II.

I do not believe that the convention and those who drafted it had this in mind, that people such as U.S. citizens would be considered for refugee claims.

The current system that we have, as far as I am concerned, besmirches the memory of Holocaust survivors. The very thought of treating on equal footing somebody from the United States or Britain or Sweden with refugees from Darfur or Rwanda, or women fleeing Sharia law or genital mutilation—and I have represented them all—is just outrageous as far as my personal opinion goes. Then there's also the issue of Christians who are now fleeing massacres in certain Islamic theocracies. Those are the real refugees.

The over 100,000 Karen people sitting in Mae Sot district of Thailand in UNHCR refugee camps are also the real refugees. I have personal knowledge of the Mae La refugee camp, because my daughter, now a physician, volunteered as a fourth-year medical student in Mae Sot medical clinic in northern Thailand. That Mae Sot medical clinic services that sprawling, horrible refugee camp of over 100,000 Karen people. Through her intervention and my intervention we were able to bring to Canada one Karen person who had originally been turned down, Eh Hso Gay, whose aunt and uncle lived in Ottawa. The only way someone could leave the refugee camp was to have an appointment at the clinic. She brought Eh Hso Gay into the clinic twice. I sent her the questions and told her to interview her, and then she was interviewed by the CBC and, of course, Immigration Canada heard that and they reversed the decision and Eh Hso Gay was brought to Canada.

Now, when there is criticism that there are designated countries of origin, I have no issue with that. And I have no issue with safe third-country agreements, because believe you me, Jewish refugees who were trying to flee Europe would not have shopped around. They would have gladly taken any country, any first country they could have stepped foot in, and made their asylum claim there. They wouldn't have traipsed around the world to find a country with more generous benefits.

As I speak now, anti-semitism is on the rise in Hungary. And since I was an infant born on the Hungarian side of the Czech-Hungarian border at that time, I have friends in Hungary, one of them being Peter Feldmajer, the head of the Jewish community in Hungary. Anti-semitism is what the new right wing government has almost state sanctioned. He said to me that the young Jewish people, his children included, are leaving. But they're not making refugee claims; they're going to one of 26 other European Union countries, and they're not coming to Canada. They're going to one of the other countries or to Israel. You don't have masses of Jews coming from France, where they're being attacked daily, and making refugee claims. They're going to other EU countries.

It's said that there's not enough time to make a refugee claim in the 45 or 90 days, etc., the minister is trying to set to accelerate the claims. But under the current system claimants have 28 days to submit a personal information form. And all the hundreds of claimants I have represented never had an issue getting that personal information form, which is the basis of the claim, to the Immigration and Refugee Board. The issue has been having to wait two years to get a hearing. That's where the issue is.

Moreover, having an accelerated process for claimants from designated countries of origin is not an issue, because we're simply implementing measures similar to those in many EU countries. For example, some countries in Europe do the following—and I have a whole list of these countries. In the United Kingdom, for those coming from what are considered to be safe countries of origin, they fast-track the claims in 10 to 14 days. In France, it's 15 days. In Germany, it's two days if they come from countries such as Canada, the United States, Australia, and New Zealand. They don't even accept refugee claims from other EU countries, because as you are fully aware, a citizen of one EU country has the absolute right to go and live and work in another EU country. You might say that if we're going to refer to the Roma, there might be an impediment because of language. Well, when they come to Canada there is the same impediment. They speak Hungarian or Slovak, depending on where they're coming from.

[The Chair, Conservative, David Tilson]

Perhaps you could wind up, Ms. Taub, please.

[Julie Taub]

Okay.

The one exception I have to supporting the Minister is that he is expecting faster decisions to accelerate the overall processing times on refugee claims. However, he is cutting 1,500 CBSA positions. This is counterproductive to an accelerated refugee processing time, because they're the intelligence gatherers. They're on the front line and meet the people when they come in. So how does he expect to expedite and accelerate the process if on the one hand he takes away the very officers who are supposed to help with the processing?

[The Chair, Conservative, David Tilson]

Thank you, Ms. Taub. We will have to move on.

Ms. Des Rosiers, you have up to 10 minutes.

[Nathalie Des Rosiers, General Counsel, Canadian Civil Liberties Association]

Thank you very much, Mr. Chair.

The Canadian Civil Liberties Union has been in existence since 1964 and continues to work to protect civil liberties in Canada. It is in that context that the association comes before you today. We certainly appreciate the opportunity to share our concerns with the committee.

My presentation comes in two parts. First, I want to point out some constitutional problems with the bill and I will speak to three points in that regard. Clearly, the association supports the idea of improving the refugee definition process. We really support that approach, as well as putting human smugglers into the criminal justice system. But, in our opinion, if we try to do that with this bill, we will be going too far and we will cause major constitutional problems for Canada. From that point of view, therefore, the bill must be revised.

In the second part of my presentation, I am going to invite you to reflect on your role as parliamentarians as you study this bill.

First, there are three things that I want to suggest, and here I obviously speak from a civil libertarian position. There are three things in this bill that transform some constitutional law concepts. I will invite you to worry a little bit about this, because in doing so and achieving some good objectives, there may be some drawbacks that will affect all Canadians.

The first one is what I describe as the mandatory detention of group-designated people. The three things that I want to say here are these. First, this is a group detention; it's a group assessment. In Canada, we tend not to agree with group assessment. Mass arrests are wrong. Mass detention are wrong. I think it's important to view this as going goes against some of the fundamental issues that we have in Canada, which is that when you are going to make a decision that is going to deprive someone of his or her liberty—and here I will go back to Mr. Collacott's argument—you must have an individual assessment as to whether there is a good reason to do so and whether indeed the person poses a risk. If you read in our brief the description of what the law is on arbitrary detention, you will see that it requires an individual assessment of whether the person has committed or is connected to crime. This bill doesn't do that.

The reasons the minister will be able to designate a group have to do with administrative convenience or administrative demands, or because he or she suspects that maybe there will be some smuggling. But it's never connected to the individual members of the group. That will be a flaw in constitutional terms, in terms of arbitrary detention. There is group detention and group assessment of blame that is inappropriate.

The second one is that this detention is without judicial supervision. There is no possibility of judicial validating or vetting of the detention for 12 months. This is a denial of the right to habeas corpus. You cannot do this. This is dangerous. It's dangerous because if we start doing this and saying, this group does not have the right to habeas corpus and this group is denied the possibility of having the legality of their detention vetted by a judge, I think we run the risk—not that this government will do it—that other governments may decide to designate a group and deny them the right to habeas corpus and the right to have their detentions validated.

In its Charkaoui decision, as you will read in our brief, the court said that 120 days of detention for people suspected of terrorism without judicial review is wrong and unconstitutional. There is no doubt that for asylum seekers where there is no evidence of a link to criminal activity, this will be viewed as unconstitutional.

I also want to provide the committee with the following reflection. If there are administrative problems, and there will be, the following is what the act currently says. I think it's important to say that it is possible now. Our current immigration law doesn't have mandatory detention, but a person must be seen by an independent decision-maker within 48 hours of being detained to determine whether there is a need to keep them locked up. And in a way, I think we are certainly ensuring that people will show up for their hearing, because they can be detained if there's a risk that they will not show up, or if they present a risk to national security and if their identity cannot be ascertained. So the current provisions provide for the administrative necessities that are now in fashion.

Mon deuxième point, my second point, is to urge you as parliamentarians to reflect on this bill. Just to complete the idea, there's also a discriminatory aspect to this. Not only will people who are in the designated group be detained for 12 months without judicial review, but thereafter their ability to seek permanent residence will also be delayed, even after they have been found to be legitimate refugees.

In my view, there's no reason in Canada to make distinctions between some refugees and others. Once they have received refugee status, they should be treated the same; they should have the same ability to become permanent residents. The reason is that demanding permanent residency is part of integration into Canada. Once they are recognized as refugees, they should be treated equally.

In my view, this will raise some issues concerning a violation of section 15 of the charter, and I think we should be worried about that as well.

I'm speaking to you as parliamentarians. Why do we think that you as parliamentarians should worry about this bill? This is a bill in which I think there is a large expansion of executive powers.

I think it's incumbent upon parliamentarians to recognize what their role is here. It's to ensure that this is not going too far in preventing the executive from being sufficiently bound. In a way, the executive now decides that there will not be judicial review, and then under this bill has very little parliamentary oversight as well. I urge you to reflect on what your role is as parliamentarians in evaluating this.

Le deuxième point that I want to make on the role of parliamentarians here is that we all know that at times it is easy for xenophobic feelings to arise. I am pretty sure that there is no minister in this government who would order mandatory detention of poor souls arriving from desperate countries, but this projet de loi, this bill, is not here only for now; it will be here forever. Indeed, once you create the ability.... What the minister says is “I may not use this bill, but I want it in my back pocket just in case”. But this possibility of designating a group could be done wrongly in the future.

I was going to mention that at times Canada has done some nasty things, some things that we're not proud of. I want to conclude on this and say that when we imposed the head tax on Chinese immigrants; when we turned away the ship the Komagata Maru in 1914 and 376 Indians died; when we refused access to the Afro-American farmers during the recession; when we incarcerated the Japanese and the Ukrainians; when we denied entry to the St. Louis in 1939 and 900 Jewish people were returned to Europe, these decisions were popular. My fear is that decades later we unveil commemorative plaques, we offer apologies, and sometimes we pay damages and try to alleviate the pain, but it's too late: people have died.

I urge you to think about the possibility that there may be decisions taken in the future to incarcerate people for 12 months and to deport them in a context in which, later on, we will feel very ashamed of what we have done.

It's not appropriate to leave all of these decisions to a minister. It creates too much danger of this power being abused. I urge you to consider this possibility.

Merci.

[The Chair, Conservative, David Tilson]

Thank you very much.

You should get out of law and become a politician. You're very persuasive.

[Nathalie Des Rosiers]

Invite me.

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

You can be persuaded?

[The Chair, Conservative, David Tilson]

I didn't say that. I'm the chairman; I'm unbiased.

We now go to the questions.

Mr. Opitz, please.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Thank you, Mr. Chair.

First, to Ms. Taub, we have some similarities in our backgrounds. My parents came here at the end of the Second World War. My dad spent a significant amount of time in a gulag and my mom was taken to Nazi Germany for forced labour. When they came to this country, it was a very different time. They had two-year contracts and had to work their way through before they were allowed to integrate into Canadian society in the way they wanted to integrate, but they did. They worked hard and they got through all of that.

With respect to your parents, we've been going through a lot of commemorations recently, and the Holocaust is one of them. It's certainly an important factor in a lot of our decision-making in some of those areas, as Ms. Des Rosiers has pointed out.

What impact do you think bogus refugees have on genuine refugees who then have to wait longer? Does it make sense that 25% of refugee claims in Canada come from the EU? That in fact, is more than the number of claims from Africa and Asia. What are your comments on that?

[Julie Taub]

I am not one of the drafters of the current Bill C-31. Had I been, I would have suggested a third category: safe countries of origin, where no claims would be considered. I would have included all the European Union countries; the United States; New Zealand; Australia; Switzerland; and Norway, which is not part of the European Union, and would not even consider claims from those countries. By the way, Switzerland has that policy on its books, as do most of the European countries, regarding these safe countries of origin. They process them in two days to three weeks.

I read the list of countries whose citizens I have represented before the refugee board. You may have noted that none of those countries appears on my list. I won't represent people from them because I don't believe they are genuine refugee claimants.

Again, and I don't know how often I should reiterate this, the European Union has 27 countries. We have 10 provinces and 3 territories. Anybody from Quebec can still go and live and work anywhere in Canada. Anybody from one of those 27 countries in the European Union has a choice of 26 other countries to go and live and work.

And discrimination is not persecution.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Agreed.

Someone who is a genuine refugee and fears returning to their home country, if they withdraw or abandon their claim and willingly return to their country of origin, what would you say is the impact of that?

[Julie Taub]

They're obviously not genuine refugees. There's this whole issue of people—including some of my clients, which I've been quite distressed to learn afterwards—who after being granted refugee status, get a travel document to return to their home countries from whence they fled in fear of their lives. When any of my successful refugee claimants have come into my office and asked me to help them fill out an application for a travel document, I ask them where they want to go. If it's back to the country they left, I say, “Are you crazy? I thought you left in fear for your life. Why in the world would you want to go back there?”

After all my years of experience, with anybody who returns to their country of origin which they left in fear, I question the validity of their original claim—unless there has been a drastic change of conditions in the country, where it's now safe to go. If we're talking about within a few months or even a year or two afterwards and nothing much has changed in their home country and they still want to go back, I question the validity of their original claim.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

You did make a comment earlier on about asylum shoppers, as did Mr. Collacott.

CBSA officers get some pretty interesting answers, as we found out earlier, responses like a person saying they could get a free salary for coming to Canada.

Have you been privy to any of those types of questions or answers?

[Julie Taub]

I've had a few calls from abroad, mostly from young men from some Middle East countries. They ask me about refugee claims. They say that they'll be arriving next month and can I take their case. I tell them that they can't just come in but that they need a visa. They'll say, “Oh, I'm coming as an international student and then I'm going to make a refugee claim”. I try to explain that if they are coming as an international student, they've got stability here. I tell them the process, that they need to finish their degree, to work, and then they can immigrate. They say, “Oh, no, I can't afford it,” or whatever.

I think there's quite a bit of abuse going on, just based on calls I've had and the people whom I have met but whose cases I don't take, and clients whom I've represented, who then come back and ask for travel documents. I know the system inside out.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

People who go to school here for three years who, but depending on trade, have the Canadian experience class that they can sometimes rely on to do that.

[Julie Taub]

Oh, absolutely. There's the Canadian experience class, skilled workers if there's a certain profession, and then there are the low-skilled workers. There are many ways to immigrate to Canada legitimately. I feel that too many people are using the refugee process as a parallel immigration process.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

I saw that you mentioned 28 days as sufficient time to fill out the initial paperwork.

[Julie Taub]

Yes. I've never missed a deadline among the hundreds and hundreds I've had—and we're not looking at 28 days here.

When somebody is leaving their country, they have that intention. They're leaving, they're fearing for their lives. If they come from certain countries, such as Rwanda, Somalia, Eritrea, often they come without paperwork. But we all know the conditions of those countries. We can't even expect them to get the necessary paperwork. Nobody will question a woman who is fleeing a forced marriage or genital mutilation, or who wants to protect her daughter from genital mutilation. The board doesn't require paperwork. The documentary evidence is more than sufficient.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

[Inaudible--Editor]

[The Chair, Conservative, David Tilson]

Thank you, sir.

I'll just remind colleagues that this panel will end at 5:20.

Ms. Sitsabaiesan.