Citizenship and Immigration Committee on May 1st, 2012

[The Chair, Conservative, David Tilson]

Good morning, everyone.

I call the meeting to order. This is the Standing Committee on Citizenship and Immigration, meeting 34, Tuesday, May 1, 2012. This meeting is televised.

The orders of the day are pursuant to the order of reference of Monday, April 23, 2012, Bill C-31, An Act to amend the Immigration and Refugee Protection Act and other acts.

On our first panel this morning for the first hour is Mr. Richard Kurland, a policy analyst and attorney.

Good morning. You have appeared before us many times. I see the word “attorney”. Does that mean you're an American?

[Richard Kurland, Policy Analyst and Attorney, As an Individual]

I am, sir—

[The Chair, Conservative, David Tilson]

Good for you.

[Richard Kurland]

—and a Canadian. The Québec Bar allows explicitly the use of the word “attorney”, and I've checked that since our last intervention, sir.

[The Chair, Conservative, David Tilson]

Okay, because lawyers up here aren't attorneys, at least that I know of.

We also have the Canadian Bar Association. Welcome to you. Tamra Thomson is the director of legislation and law reform. Good morning, Ms. Thomson. And we have Peter Edelmann, who is a member of the national immigration law section.

You each have 10 minutes to make a presentation to the committee—Mr. Kurland, you know the drill—and then there will be questions.

We appreciate your coming again. You have up to 10 minutes, sir.

[Richard Kurland]

Thank you, Mr. Chairman.

In keeping with past tradition, I'll keep my remarks brief and to the point, jealously guarding the chair's time.

After canvassing individuals, associations, and colleagues from coast to coast, I have found that there's a collision of passions. On the one hand, there is our natural inclination to provide our generous protection to the persecuted, the refugee. That's in keeping with Canada's fine traditions. On the other hand, the public desire for control and respect of Canadian sovereignty requires that we guard against those who would abuse Canada's generosity when it comes to protecting the refugee.

How do we reconcile these two passions? You will likely see throughout the day experts who will explain that we're making a mistake on the refugee determination side in Bill C-31. I'd like to contribute by explaining very quickly how this came about and the struggle to reach the right balance.

First, what I tell people is to look at what is not in the proposed law. Canada had the opportunity to introduce the power to interdict would-be refugee claimants on the high seas. It cannot be ignored that that political choice was intentionally made not to interdict overseas in respect of our genuine desire to protect the persecuted. Other countries, western democratic countries, engage in this practice, but not Canada.

In terms of numbers, you're looking at 35,000 refugees per year, and over a 10-year period you can guesstimate that there are at least a 250,000 to 350,000 claims.

The section of Bill C-31 attracting the most interest of my colleagues relates to mandatory detention, denial of family reunification for five years, and those sorts of things, connected to a mass arrival. I suggest that people should focus on solutions. It's easy to identify prospective charter violations.

Where is the solution? What must be known is that political opinion, subsequent to the arrival of over 500 claimants in vessels created a severe downslide in Canadian support for our immigration programs in their entirety.

How many of these marine arrivals occur in a decade? In two decades, there have been three. That’s an average of about two every ten years, with the highest number being recently. So of 250,00 to 350,000 people, you're talking of about 1,000 or 2,000 in 30 years. I can't light my hair on fire when the numbers are that low. Of the poor people who did arrive and make a claim, as with other categories, an average of about 40% were accepted in our typical fashion, with others sliding in under other programs such as on humanitarian and compassionate grounds.

But regarding the principles at stake, including mandatory detention in Canada, I have not heard the War Measures Act invoked. But the public opinion that requires a solution engages a political communication strategy on the part of the Government of Canada to deter arrivals. Deterrence is the result of a law that may well indeed be charter-inappropriate. What remains to be seen is the effect. The gamble is the political embarrassment of having a law declared contrary to the supreme law of this country, the charter.

The practical outcome of this may well be the reduction, if not the elimination, of mass arrivals in marine fashion.

That's the political backdrop and strategy, and I would love to hear solutions from other witnesses rather attacks on the legalistic, technical position of it being pro or contra the charter. We need to work in this room together prospectively to find a solution whereby we can achieve both passions equally—to protect the persecuted and prevent the abuse of our Canadian generosity. That's the task.

Having said that, I move quickly—I will close in about a minute, if not two—to some things that may be tinkered with technically. The idea of a safe third country list is politically problematic, so I would recommend some consideration of a sunset clause on the list. Instead of being whacked twice politically for a decision to put something on, and then something off, put something on with a timer so that the country name drops off the list automatically without further ado after a period, such as 24 months. That saves you a lot of embarrassment down the road. It's practical; it's doable.

I'll walk quickly though the other aspect, and then I'll pass the torch. Two illustrations should be borne in mind when looking at Bill C-31. The St. Louis mass arrival by boat: How would you treat those Jews? Would it be mandatory detention for a year? They did it back then. An oven or a detention in Canada? It's an easy choice. Then there's the Tiananmen Square massacre and the students who arrived in this country. Before June 1989, no one believed there was a problem in Chine. Now what? So build those safeguards so you can proactively have a little safety valve, a little delay, for the pre-Tiananmen sequence of events. I think that's important.

That's going to be my time for now. Thank you, Mr. Chairman.

[The Chair, Conservative, David Tilson]

Thank you, sir. I always enjoy your presentations. It's worth the price of the admission.

Thank you very much.

[Richard Kurland]

Thank you, sir.

[The Chair, Conservative, David Tilson]

Okay. Ms. Thomson, then Mr. Edelmann. I understand you are both speaking. The two of you have up to 10 minutes.

[Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association]

Thank you, Mr. Chair, and honourable members.

The Canadian Bar Association is pleased to appear before this committee today on this important piece of legislation. The Canadian Bar Association is a voluntary association of 37,000 lawyers across Canada whose primary objectives include improvement of the law and improvement of the administration of justice. It's with that optic that the members of our immigration law section have analyzed Bill C-31 and make the comments that we have submitted to you in writing and will speak about today.

I'm pleased that Mr. Edelmann is here with me today. He is a member of the refugee bar and of the immigration law section, and I will give to him the bulk of the time.

[Peter Edelmann, Member, National Immigration Law Section, Canadian Bar Association]

Thank you for the opportunity to address the committee today.

We members of the CBA section spent the last several weeks studying this bill in as much detail as time allowed. As you are aware, it's a very complex piece of legislation, with major impacts on immigration and refugee law.

We have some detailed written submissions that set out a number of concerns we have with the bill. I'm going to focus on two issues that encompass a number of points within the bill today. The first is the scope of the legislation itself, and the second is the expansion of powers being delegated by Parliament to the minister.

The CBA section is particularly concerned with the omnibus nature of the bill. In particular, with respect to the stated objective to pass this legislation on a very short timeline—before June 29—given the scope of the changes, there is a very short amount of time available, and even in that short amount of time, we've identified a number of different problems with the bill.

The scope of the changes is massive, and understanding these reforms is further complicated by the layering of multiple sections—previous acts that have yet to come into force, parts of IRPA that haven't come into force.

On top of that we have the changes that were made by the Balanced Refugee Reform Act, Bill C-11. Layered on top of that, we have changes in Bill C-31 that make changes to the sections of IRPA that were not in force and changes to the Balanced Refugee Reform Act, and other, further changes.

Just trying to understand all of that and cross-referencing the amendments is quite a task in and of itself. The Library of Parliament, which has done an admirable job in trying to summarize the legislation, indicates that the creation of RAD, for example, would take place immediately upon royal assent. I should hope that is incorrect, as the Immigration and Refugee Board is not in a position to implement RAD upon royal assent. The error made by the Library of Parliament is understandable given the multiple coming-into-force clauses within the bill.

So we have nested clauses within the bill that even the Library of Parliament is having challenges to understand. The minister himself has demonstrated a lack of understanding of fundamental aspects of this legislation.

Clauses 18 and 19 of the bill would unequivocally change the law to make cessation a basis of inadmissibility and loss of permanent resident status. As a lawyer who regularly works with the Latin American community, I can tell you that this change has potentially devastating consequences for thousands if not tens of thousands of permanent residents.

I'll give you the example of a Chilean refugee who fled the Pinochet regime in the 1980s, who has been a permanent resident and contributing member of Canadian society since that time. The new cessation provisions would mean that person could, at any time, be taken before the board for cessation proceedings, and there would be no defence. The changes in Chile are clear; the Pinochet regime fell many years ago.

Such refugees would not only lose their permanent protected person status, but they would lose their permanent resident status, they would have no appeal, there would be no consideration of humanitarian factors, and they would then be removed as soon as possible.

Aside from the nature of the provision itself, what's of particular concern to the CBA is the fact that the minister appears not to understand the nature of the change. In fact, he has repeatedly and adamantly claimed there is no change in the cessation provisions before the House and in the public sphere. I'll just read from the Montreal Gazette, March 8, 2012, a letter written by Minister Kenney. He says:

Your editorial wrongly claims that Bill C-31...includes a new power that allows the minister of citizenship and immigration to revoke permanent-resident status from refugees in Canada.

He goes on to say:

Bill C-31 only modifies the current law by changing the current redundant process for revoking fraudulently obtained refugee status and permanent residency in two separate steps, to a one-step process at the independent IRB that revokes both simultaneously. It is an administrative change, and not a new authority.

This is clearly incorrect.

There is a consensus among lawyers. The consensus between the CBA, the Canadian Association of Refugee Lawyers, a number of other people who have studied this bill, the Library of Parliament, and the department itself make it clear that this interpretation is incorrect.

The minister himself appeared before this committee, and appeared to admit that was not what was intended and that he was open to an amendment. We hope that amendment would in fact be made. I do hope that will be followed through by this committee.

What is of particular concern is the speed with which this complex legislation is being passed without the time to properly study it. You're being asked to pass a bill on a very short timeline and we don't know how many more unintentional consequences there will be—and there are—in this bill.

With all due respect, no one whom I'm aware of has been able to study this bill in depth. That includes me and Mr. Kurland. And I'm not pointing at Mr. Kurland or the people who are appearing before this committee, but in terms of all of the unintentional consequences, we simply haven't had time to study in depth this piece of legislation.

The problem is compounded by the lack of details. When IRPA was passed in 2002 there were concerns raised that there was a shift to legislating by way of regulation. The trend continues with this bill. For a lot of the parts of this legislation, we've not seen the regulations that are going to fill in the details. We have biometric provisions that simply say that the government is going to set this out in regulations. It's very difficult for us to comment about that. As to whether or not biometrics is a good idea or not, there are no details in this bill. Then there are the removals as soon as possible and the timelines.

In other respects, the details are not even by way of regulation, but by way of ministerial order. For example, with respect to the designated countries of origin, they will not only be designated by ministerial order, but the very criteria by which they will be designated will also be decided by the minister. There is nothing in the act that would prevent the minister from setting the levels at 100% so that any country could be designated at will.

One of the more striking examples of the expansion of powers is with respect to investigative detention, which significantly widens the CBSA's powers. Currently, paragraph 58.(1)(c), which was introduced in 2002 shortly after the terrorist events of September 11, allows for the detention of permanent residents and foreign nationals at ports of entry on suspicion of a security threat and violation of human or international rights. The government justified this at the time as anti-terrorist legislation. Inadmissibility for security and these types of rights violations is quite rare.

The bill proposes to greatly expand these powers to include detention for mere suspicion of almost any form of criminality, even minor criminality in the distant past, whether or not a person has ever been arrested or charged. For example, a 20-year-old permanent resident suspected of using fake identification to get into a bar while visiting the U.S. would be subject to detention with little or no recourse while the minister investigated the suspicion of inadmissibility based on what could be the offence of uttering a forged document. It carries a maximum penalty of 10 years or more and is therefore considered serious criminality under the act. This same permanent resident could arguably be detained on the same basis 20 years later.

The bill would grant exceptionally broad powers of detention to officers, with little or no direction with respect to their application. That is the breadth of what we're talking about.

I present this as an example because it's of particular concern that Parliament is delegating its power, whether it's to the minister or to officers, when it's not properly circumscribed. That type of delegation does not contribute to law and order. It in fact undermines the rule of law upon which this institution is based. I hope that as parliamentarians you take pause with respect to the delegation of these types of powers with little direction.

[The Chair, Conservative, David Tilson]

Perhaps you could wind up.

[Peter Edelmann]

Okay.

As I said in the beginning, we have done our best to conduct a detailed study in the time frame allotted to us. I would be happy to answer questions on any of the issues raised in our written submissions.

Thank you.

[The Chair, Conservative, David Tilson]

Thank you. Mr. Menegakis has some questions.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Thank you, Mr. Chair.

I'm going to start my questions with Mr. Richard Kurland. Mr. Kurland, welcome.

Welcome, Mr. Edelmann, and Ms. Thomson. Thank you for appearing before us today.

Mr. Kurland, some witnesses have referred to our current system as a path to bankruptcy—in fact, one said with extra allowance for a specials diet. In what ways would you agree or disagree with that comment?

[Richard Kurland]

Well, it isn't a path to bankruptcy because the input on the intake is finite, so there's not going to be an uncontrolled bleed of money.

In addition, this bill actually tightens up the process, monitors, and controls on the financial side. In addition, on our refugee board, what I've seen in the technical design, on the layout, the framework of the new refugee determination system is an increase in efficiency. Processing times are to be dramatically and significantly cut, thereby reducing the total inventory of refugee claimants during the refugee determination process, because you're going to be doing more cases faster with fewer resources.

Our central Canadian provinces and B.C. will have, as a result, lower carrying costs of the refugee inventory because you're going to see less demand on public assistance. The work permit controls will effectively create taxpayers for some of these refugee claimants when the positive determination signal is struck. Finally, overall, you may see a change in the composition of the intake. I do not expect the same source countries to be in place post-arrival of Bill C-31.

[Costas Menegakis, Conservative, Richmond Hill, ON]

That leads to my second question. I was going to ask you if you support Bill C-31 and why. Do you want to comment on that?

[Richard Kurland]

Well, thank you for that tough one.

Look, I've yet to see a perfect law come out of Parliament. What we are seeing here today, as I say, is a collision of passions. It is impossible to derive a perfect law because of the balancing, the compromises that make legislation possible. After I see the review of this legislation by our Canadian judicial institutions, we will know the answer. Today, no, it's not perfect.

I have concerns about mandatory detention. I have concerns about increased powers to law enforcement that can put human beings away for prolonged periods on their say-so without appropriate judicial oversight. I have those concerns.

I agree that cessation puts in a state of emotional vulnerability tens of thousands of people who thought they were safe in Canada, and are safe no longer. But there are solutions. On cessation, it's called the User Fees Act.

If you are requiring post-positive refugee claimants to become Canadian citizens, on the one hand, on the other hand, you impose on Immigration Canada the duty and responsibility to conclude processing on a permanent residence application in 12 months or less. If country conditions are changing 24 months later, 36 months later, that's enough time for people to become citizens. Then, I don't have an issue with cessation. But presently there is no control over the duration of processing of a permanent resident or citizenship application in this country, and that needs to be fixed.

[Costas Menegakis, Conservative, Richmond Hill, ON]

A lot of the refugee claimants come from the European Union. I'd like to ask you if you think it's fair for taxpayers to foot the bill for people from the EU who abandon and withdraw their claims? I ask because that's what is happening.

[Richard Kurland]

When the convention was drafted... You're looking at a law that's about half a century old, a protocol or understanding or international agreement to provide sanctuary. It's country-locked. So, yes, in law you can make a case that you're being persecuted, not discriminated against in a country—

[Costas Menegakis, Conservative, Richmond Hill, ON]

But we're footing the bill.

[Richard Kurland]

—and we're footing the bill. Also, in law today, in the European Union, a claimant from a European country can buy a train ticket, walk, or fly to an adjacent country and legally live and work there. Why do they need to immigrate to Canada using the refugee ticket when they can have sanctuary down the street legally? It's just not calling it sanctuary. They're allowed to live and work there freely, so it is a tax bleed on that point. We have to fix that and I think this proposed law addresses it.

[Costas Menegakis, Conservative, Richmond Hill, ON]

What are your thoughts on biometrics? How do you think it will help protect the integrity of our immigration system and the security and safety of Canadians?

[Richard Kurland]

As my colleague addressed it, it seems a little thin on detail, but generally in Canada as yet, we have no official exit control system in place. We carefully scrutinize the ins and outs with our partners internationally.

I don't want to reach the stage where everyone has to carry a national ID card. If there's biometrics, what's missing, and what we might give some thought to, is an effective consumer protection control. If the government is willing to collect biometrics, which is deeply personal, the public has a right to know what is in possession of government regarding them and their family. So that's a fix to be made.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Do you think that biometrics should be collected only for temporary resident visas or for anyone entering Canada?