Citizenship and Immigration Committee on May 1st, 2012

[Andrew Wlodyka]

In my judgment, that is the sort of fundamental aspect of what I've been presenting. The idea is to devote as many resources as possible so we can get the legitimate refugee claimants out of the system as fast as possible, because they don't deserve to be stuck in there. We need a way to filter out those who do not have legitimate claims, who are basically using our refugee determination system as a way to immigrate. We need to have a system that does that, but in a transparent and fair fashion.

[Costas Menegakis, Conservative, Richmond Hill, ON]

A question came up earlier from the other side, I believe, about when people, whether they're queue jumpers or not, use illegal means of coming into the country. We know that human smuggling is a very lucrative business. The idea of treating everybody who comes into the country by illegal means in a different fashion, if you will, raises some very serious concerns. For example, I heard the member from Papineau mention the Sun Sea and Ocean Lady. In those two particular cases, a total of 41 people were denied admission to the country; 23 were found to be security risks; 18 were found to have perpetrated war crimes in their country of origin. I don't believe Canadians want 41 people living in their neighbourhoods, being around their children, who are in effect criminals in the country from which they came.

There needs to be due process, a time to be able to evaluate their eligibility to come to the country, and certainly the safety of Canadians is paramount.

I do have one more question for you, Mr. Wlodyka. Do you think it makes sense that 25% of refugee claims in Canada come from the European Union, more than Africa and Asia? What does that say about our system when they have a choice to go to 26 other countries—there are 27 in the EU—yet they come to Canada?

[Andrew Wlodyka]

My response to you is that clearly the bill identifies this as a serious problem. You have people who come to Canada who use the refugee system, and it's tied up in knots for years. At the end of the day, even if they are turned down, they have access to humanitarian rights application, humanitarian and compassionate application, and it takes years of very scarce resources to remove them. Those people who are desperately in need, even those who sometimes come on boats like the ones you mentioned...the ones who do have legitimate claims are languishing in the system because it's not able to deal with legitimate claims in an expeditious fashion.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Thank you.

How's my time, Mr. Chair?

[The Chair, Conservative, David Tilson]

You have a couple of minutes.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Oh, good.

I would like to go back to the queue jumper issue. There are people who come to Canada, tie up the system, clog it up, and eventually, a very significant number of them, a large percentage, end up abandoning and withdrawing their application. Mr. Wlodyka, in your opinion, would someone who's a genuine refugee and truly fear returning to their home country be willing to withdraw or abandon their application?

[Andrew Wlodyka]

In my judgment, legitimate refugee claimants who have legitimate claims would not abandon or withdraw their claims. Why would they if they are seeking protection? Clearly, it's in the criteria that show that the claim is not legitimate in the first place. A system that deters these kinds of claims, in my judgment, is necessary. However, the selection of the criteria has to be transparent, the designation of which countries or parts of countries or groups has to be transparent, so that the public will genuinely support that system and apply the necessary resources to then expedite removal of these people, which will then deter others from taking the same route.

[Costas Menegakis, Conservative, Richmond Hill, ON]

This is the last question, I guess, for you, sir.

What are you hearing, if anything, about the government's recent announcement to make sure that refugees don't receive health and dental benefits that are more generous than those Canadian taxpayers receive?

[Andrew Wlodyka]

In my judgment, people are people. They should be receiving the same treatment. Canada is a very generous country, and I don't think we should be going down that road, to vilify refugee claimants or people. It would be a mistake to try to do that. Whether we're Canadians or permanent residents, or whether we're legitimate claimants fearing persecution, under the law we're all supposed to be treated equally, and that is my position on the matter.

[The Chair, Conservative, David Tilson]

Thank you very much.

Madame Groguhé.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Thank you, Mr. Chair.

Welcome to the witnesses.

Mr. Frelick, you talked about the devastating effects of detention on children and pointed out that the best interests of children are not being taken into consideration. We also understand that Australia's mandatory detention program, instead of preventing mass arrivals, mainly harmed the refugees.

In your view, what other provisions should we adopt or include?

[Bill Frelick]

First, there's certainly an obligation under the Convention on the Rights of the Child. The notion that the cut-off date would be 16 years rather than 18 just came out of the blue here.

When I first looked at the bill, I shook my head as to what's going on. What is Canada doing here? There are certainly implications there that go beyond Canada itself.

The literature is vast on the negative impact of detention on children, particularly unaccompanied children. Of course, the younger you are, the worse it gets. I think we should also hasten to add that although detention is not mandatory for children 15 years and younger, under this bill it's still allowed, so children may still be detained as a discretionary matter.

The alternative is following what the Convention on the Rights of the Child says, which is that you follow the best interests of the child. You make a best-interest determination: What is in the best interest of this child? It's not using the child as a means towards a deterrent against some smuggler somewhere, but protecting the child—protecting the child against smugglers, for that matter. It's using appropriate means—foster care, whatever it might be—that follow a best-interest determination by child welfare specialists who can make that determination based on what is best for that child.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Thank you.

The detention system for designated foreign nationals under Bill C-31 has sparked a great deal of interest on the part of our witnesses. Some of them feel that it is a violation of the rights protected by the Canadian Charter of Rights and Freedoms and by international obligations. What do you think, Mr. Frelick?

[Bill Frelick]

Maybe with respect to the Canadian charter I might refer to Jennifer, who is Canadian. Being a U.S. citizen, I feel like I'd be a bit of a carpetbagger to make that judgment.

Jennifer, would you like to comment on the Canadian charter?

[Sadia Groguhé, NDP, Saint-Lambert, QC]

What do you think, Ms. Egsgard?

[Jennifer Egsgard]

Yes. Obviously, I would agree that it would violate the charter as well, particularly sections 7 and 12. I think the Charkaoui case, which the Supreme Court decided several years ago, indicated that indefinite detention without review is unconstitutional and does violate the charter, and that is precisely what is proposed by Bill C-31.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Do you feel that the provisions dealing with irregular arrivals and designated foreign nationals are a strategic response to irregular immigration?

[Bill Frelick]

Again, we're speaking as a human rights organization, but I think we do need to question whether using detention as a deterrent is appropriate in the first place. I think you need to look at it. Is the person identified? Does the person represent a danger to the community, to the public? Is the person likely to abscond? Will they cooperate if they have a refugee claim or for their removal? If those conditions are met, then there's really no appropriate reason to detain the person.

To just say that mandatorily we're going to detain people for a year is arbitrary, and it is, frankly, punitive. That's the problem we have here.

It's not particularly strategic. In fact, when you look at the Australian model, where they did try mandatory detention, they basically found that—and I'm quoting the head of Australia's department of immigration—“Detaining people for years has not deterred anyone from coming”. I have supporting quotes from the immigration minister as well.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Frelick, sir.

Mr. Weston, you have time for one brief question.

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

I thought I had five minutes.

[The Chair, Conservative, David Tilson]

Well, this meeting ends at 4:30.

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

Okay.

Andrew, not just because you're from beautiful British Columbia, but because so many of the bar respect you so highly for what you do, I had five questions, but we're going to make it one.

The one-year warrantless detention is one thing that has come up often. We've heard from other lawyers who have appeared here, as well as Ms. Egsgard today, that it would violate the principle in the Charkaoui case.

You, on the other hand, thought that one-year detention was something reasonable. Can you give us some sense of why you think it is reasonable and why it may not violate the Charkaoui principle?

[Andrew Wlodyka]

In my judgment, I think it's important to differentiate the time of detention and the process of review. In my judgment, as I said in my initial remarks, if you look at the security provisions in section 82, even for people who are alleged to be terrorists there is a detention review at least six months at a time. This is even more draconian than that.

I would think that there has to be a process of review. I do have concerns that mandatory detention, even for a year, without that kind of process would be unconstitutional and would be struck down. At the very least, there should be a process of review at least akin to the security provisions in section 82, in order to withstand scrutiny.

Also, clearly, expeditious determination of refugee status for legitimate claims would take those people out of detention. That is ultimately the best remedy: devote resources to legitimate claims and get them out of the system as quickly as possible.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Wlodyka, Mr. Frelick, and Ms. Egsgard. Your testimony has been well received, and we thank you for it.

We will suspend for a few moments.

[The Chair, Conservative, David Tilson]

I'll reconvene the meeting with our second panel. We have two witnesses.

From the Women's College Hospital, we have Dr. Meb Rashid, a medical doctor at Crossroads Clinic. We also have with us David Matas, a lawyer.

You each have up to 10 minutes to speak.

Dr. Rashid, welcome to the committee. You may speak now.