Evidence of meeting #33 for Citizenship and Immigration in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was refugees.
A recording is available from Parliament.
Rathika Sitsabaiesan NDP Scarborough—Rouge River, ON
Thank you, Mr. Chair.
Ms. Des Rosiers, as you know, in 2007 the Supreme Court ruled in Charkaoui v. Canada that detention without review for 120 days breaches section 9, which is arbitrary detention, and paragraph 10(c), legal rights upon arrest or detention, of the charter.
Do you not think that this new regime, which imposes a delay more than three times as long as the one struck down in 2007, may also be ruled unconstitutional?
General Counsel, Canadian Civil Liberties Association
I think that was my submission, that on its face, 12 months without judicial review indeed contravenes what the Supreme Court said in 2007. There is no reason to justify this change. In my view, on its face it's going to be unconstitutional. Indeed, I think as parliamentarians it's not a good idea for you to pass statutes that are, on their face, unconstitutional in the theory that maybe nobody will challenge them, or the power will not be used. That's not appropriate: We owe it to the rule of law to have sections that comply with the charter. We also owe it to other countries around the world that look to us to have statutes that make sense, that are appropriate, and that do the right balancing between different interests to ensure that indeed they comply with the charter.
NDP
Rathika Sitsabaiesan NDP Scarborough—Rouge River, ON
Thank you.
I have a question about mandatory detention. So a detention regime, as I keep calling it, for designated foreign nationals, as people will be called, provided by Bill C-31 has attracted considerable attention, because it is a violation of rights incompatible with the Canadian charter and, of course, with our international obligations.
What is your opinion on this, and what alternative would you recommend for dealing with mass migrant arrivals?
General Counsel, Canadian Civil Liberties Association
Certainly I think the current statute, the current way in which we deal with group arrivals, is not inappropriate. In the statute it does say, to the extent there's some difficulty in doing identity checks and so on, people can be detained for short periods of time, but at least there's a guarantee that indeed a judge is there to make sure the process works well.
We should value this, and we should value this profoundly, because that's what constitutional law is all about. That's the protection we all have, that if indeed we are found to be detained, we're not at the mercy, like this bill presents, or completely at the mercy of the minister deciding, “Oh, yes, these are exceptional circumstances and I decide that you can leave”, even if he or she does the right thing.
I think there is a symbolic flaw here. There's a symbolic flaw because it does say to people that in Canada you're completely at the mercy of the minister deciding what happens to you. That's not what we're all about. We're a society based on the rule of law, not on discretionary exercises at the whim of a minister.
So to me, I react by looking at this and saying, “Will I want this to be part of Canadian law books?”. No. I think there are some dangers in terms of the way it transforms our constitutional law, let alone all the problems it may pose for the individuals who are affected. That's serious enough, but there certainly are some problems in the way in which our constitutional law will be transformed.
NDP
Rathika Sitsabaiesan NDP Scarborough—Rouge River, ON
So my understanding is that the current system—
General Counsel, Canadian Civil Liberties Association
I think, certainly not in terms of.... There are some improvements that could be made. More people could be processed, and certainly you want to ensure that there is more speed in the system. I have no problem with some of the parts of it, but on this, I think there is absolutely no necessity for this mandatory detention for 12 months of people arriving in Canada—absolutely not.
NDP
Rathika Sitsabaiesan NDP Scarborough—Rouge River, ON
And then there's all of the power sitting in the one seat, that of the minister, which once again is, in your opinion...?
General Counsel, Canadian Civil Liberties Association
I think it is a flaw. I think it's against the nature of what we should expect in a parliamentary democracy.
NDP
Rathika Sitsabaiesan NDP Scarborough—Rouge River, ON
Thank you.
We've heard about Australia from earlier witnesses, from the minister as well, and from ministry staff earlier today. So I'll ask you about some of the stuff that's been happening there. We've seen the statistics from Australia showing that mandatory detention did not discourage asylum seekers from going there. Is there any explanation for why mandatory detention did not work there?
General Counsel, Canadian Civil Liberties Association
Well, in our view, it doesn't matter whether it works or not, because it is inappropriate to do it. It's an insult to all Canadians. Because the minute you start deciding that there could be mandatory detention of a group, which group will be next? That's the reason that I ask you to think about this seriously. I have absolute confidence that there is no minister in this government who would do it, but some other governments could do it.
What's to prevent another government somewhere else from saying that it designates a group and puts its members in mandatory detention for 12 months, and from saying that “Canada can do it, so why not us?” I think it's dangerous and inappropriate.
So irrespective of its effectiveness—which is debated—I'm not going to get into that debate. I think it's wrong.
NDP
Rathika Sitsabaiesan NDP Scarborough—Rouge River, ON
So this bill basically opens the door for a future government to be xenophobic towards any group of people. Is that your understanding as well?
General Counsel, Canadian Civil Liberties Association
Well, I think that's certainly one possibility. It's the duty of parliamentarians to prevent this from ever occurring. It has occurred before. It could occur again. I urge you to prevent this, to protect us, and to protect our reputation for the future.
NDP
NDP
Rathika Sitsabaiesan NDP Scarborough—Rouge River, ON
Did you want to continue for a fast 30 seconds?
I'll pass it on to Madame Groguhé later on.
Conservative
General Counsel, Canadian Civil Liberties Association
I think it's also important to recognize that it's not true that refugees have not been good immigrants in Canada. They have contributed a lot to Canada. We should be proud to have accepted refugees in Canada. I think this is important to recognize. This is not about trying to belittle the heritage they have contributed. Also, I worry sometimes about the tone.
Liberal
Kevin Lamoureux Liberal Winnipeg North, MB
Thank you.
I really do agree with your last comment. There have been actions taken by this particular minister and this government that I think have raised a concern in regard to that very issue, whether it's standing on the back of a ship, which I made reference to earlier in question period, or coming up with this whole detention idea.
One of the things that we learned today—and I posed the question today in question period—is that in fact the current system of detention is actually working. It has proven itself; it has worked.
Mr. Dykstra has asked the Liberal Party to come up with some ideas and amendments, and we're suggesting that this whole section be amended out of the current legislation.
Is it safe for me to assume that you would be very supportive of taking out that whole section about detention. You fully believe that the current system is doing what it needs to do?
General Counsel, Canadian Civil Liberties Association
I think there are certainly some ways in which the system has been applied at times that we would disagree with. But on the whole, I think that it does at least satisfy the interests of the minister.
This section that imposes mandatory detention for 12 months without judicial review is wrong. It should be removed from this bill. In my view, it is constitutionally wrong. It's wrong in international law. It's wrong even for a constitutional democracy.
