Evidence of meeting #35 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 detention.
A recording is available from Parliament.
Conservative
The Chair Conservative David Tilson
They're both from Human Rights Watch. One is from Washington and the other is from Toronto, but they're both one organization.
Liberal
Justin Trudeau Liberal Papineau, QC
Human Rights Watch and Human Rights Watch Canada are separate organizations.
Conservative
Conservative
The Chair Conservative David Tilson
Well, we'll see how it goes.
Mr. Trudeau, my understanding is that we have two witnesses. One is Mr. Wlodyka, who is speaking as an individual, and the other is Human Rights Watch. We don't have three groups.
Okay? Other than that....
Sorry for that interlude, sir. You are still speaking.
NDP
Jinny Sims NDP Newton—North Delta, BC
Mr. Chair, it's very clear that they're two different organizations. If they were one organization, they would have both been listed under Human Rights Watch, but there are two different names. When you look at it, there is Human Rights Watch and then Human Rights Watch Canada. So in light of that, I would beg the chair's indulgence to allow both of them to have their time to speak.
Conservative
NDP
Conservative
The Chair Conservative David Tilson
Mr. Frelick, I'm sorry for that. We have these little interludes from time to time and I apologize.
You still have the floor.
Director, Refugee Program, Human Rights Watch
I'm happy to clarify that we are one organization. With that, hopefully, I can get into the other parts of my prepared statement during questions and answers. Of course, you have our written testimony, but I will turn it over to Jennifer Egsgard.
Conservative
Member, Human Rights Watch Canada
Thank you, Mr. Chair.
I've been a member of Human Rights Watch Canada for 10 years. I'm currently a lawyer with Sills Egsgard LLP, but until January I spent four years with a specialized legal aid office doing refugee law work. Part of my work there involved representing clients before hundreds of detention reviews and then challenging some of those to the Federal Court. So in my comments on Human Rights Watch's position I'll also be drawing on my own detention review experience.
Human Rights Watch is concerned that year-long mandatory detention and delay in obtaining permanent residency for designated persons will contravene international obligations under article 31.2 of the Convention relating to the Status of Refugees. This article prohibits imposing penalties on refugees on account of their illegal entry or presence. The rationale for this provision, of course, is that refugees fleeing for their lives often do not have the luxury of using legal channels to escape.
Human Rights Watch is also concerned that the one-year mandatory detention provision contravenes the International Covenant on Civil and Political Rights. It provides in article 9 that:
Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
Obviously that is not possible with the one-year mandatory detention.
It's my position that the year-long mandatory detention is disproportionate to the government's stated objective of addressing concerns about its admissibility and identity. As we've heard from other witnesses, Canada's Immigration and Refugee Protection Act already provides a system for detaining foreign nationals on these grounds in a manner that is consistent with international norms. Current law allows the government to detain foreign nationals if there's a concern about their identity, if there's a concern that they're a flight risk, and if there's a concern that they are a danger to the public.
If someone is detained within 48 hours under the current system, they have the right to a detention review. If not released, another review happens in seven days, and if not released it happens every 30 days. I have quite a bit of experience with these reviews, and as long as the government can satisfy the decision-maker that they're taking diligent steps to ascertain identity, admissibility, or some other outstanding issue, detention will be ordered continued, and considerable deference is given to the minister's counsel in those hearings.
In my experience at these detention review hearings, a hearings officer represents the minister. I have often seen that before the hearing the hearings officer receives an e-mail update from the minister's employee at Canada Border Services Agency who's been working on the case in the background. The hearings officer then uses that information to provide an update to the board member as to what steps are being taken. In my experience, as long as this update contains substantive developments, the board member is more than likely to order continued detention.
In the case of mass arrivals, from my experience, as long as the CBSA is acting diligently and can provide this monthly update to their hearings officer in advance of the hearing, a board member is likely to be satisfied that detention is justified and it will be ordered continued. It's my understanding that this was borne out in the Sun Sea cases, where numerous individuals were detained for multiple months. Indeed, you heard evidence yesterday that six individuals remain detained from that boat. You also heard that of those released, none have gone underground. The CBSA testified that they know where everyone is.
My experience in long-term detention cases also tells me that oversight of them is necessary. Certain cases can fall through the cracks, and month after month there might be no presentation of evidence about minister's steps that have been taken to address outstanding concerns. In those cases, if the individual has counsel to draw the board members' attention to this, board members increasingly will begin to question the CBSA about, “What steps are you taking to find out this person's identity or admissibility, or is there another issue that may be outstanding?”
Without this oversight and advocacy from counsel, people can and do languish for months and even years without release. I have serious concerns that this might happen in the context of a year-long mandatory detention; namely, no one would keep track of what steps were being taken to assess and determine admissibility or identity. If the detention review that happens after a year is not successful, they have to wait another six months, and so forth.
Member, Human Rights Watch Canada
I will. Thank you.
Detention is very expensive. Surely more resources could go to investigating identity and admissibility in the case of mass arrivals and avoid the need for mandatory detention.
I'd also be happy to answer questions on Human Rights Watch's concerns about how the five-year bar on permanent resident status applications also violates international law.
Thank you very much.
Conservative
Conservative
Ted Opitz Conservative Etobicoke Centre, ON
Thank you, Mr. Chair.
I'm going to be directing my questions to Mr. Wlodyka.
Sir, I'm going to quote you first. You made a statement on CKNW-AM Vancouver radio. I'm going to read a quote because it's going to be relevant to my line of questioning.
It says:
I frankly don’t find anything wrong with that in the sense that the Minister’s accountable to the public. If he makes a bad job of choosing which countries there’s always the ballot box to deal with it as opposed to sort of faceless experts deciding these kinds of questions who are possibly not really accountable to anyone. So I don’t really have a problem with the Minister. There is political accountability in the end.
Is that a fair statement?
Conservative
Ted Opitz Conservative Etobicoke Centre, ON
Okay, great. I wanted to make sure that was accurate, sir.
Is it fair to say then that designating safe countries of origin is a fair approach, in your opinion?
Barrister and Solicitor, As an Individual
Yes. In my judgment it is, as long as the minister follows transparent criteria. There are countries—Europe, the United States, Australia, New Zealand—where they have similar systems to ours. They have similar refugee determination systems to ours. Claimants from those countries should not necessarily be treated the way a claimant is from Somalia, Liberia, or some other country. We're trying to maximize use of very scarce resources, and those resources should be focused on where the need is the greatest. We don't have endless supplies of money.
I have confidence that if the minister makes a determination on transparent criteria that's set out in the legislation, you'll have a fair process. I would like to have input from the public. That's why there should be a regulatory process whereby there are prepublication comments in the Gazette and not just a simple order.
If the minister is in fact following the proper process laid out by Parliament, I think that would be sufficient to protect the public interests.
Conservative
Ted Opitz Conservative Etobicoke Centre, ON
Great.
Overall, then, what effect do you think this is going to have on hearing wait times and the backlogs?