Citizenship and Immigration Committee on May 1st, 2012
A recording is available from Parliament.
On the agenda
- Andrew Wlodyka Barrister and Solicitor, As an Individual
- Jennifer Egsgard Member, Human Rights Watch Canada
- Bill Frelick Director, Refugee Program, Human Rights Watch
- Meb Rashid Medical Doctor, Crossroads Clinic, Women's College Hospital
- David Matas Lawyer, As an Individual
- Christine Hyndman Manager, Immigration Policy, Policy and Research Group, Department of Labour, New Zealand
- Stephen Dunstan General Manager, Settlement and Attraction Division, Immigration Group, Department of Labour, New Zealand
- Fraser Richards Acting Director, Legal Business, Legal Group, Department of Labour, New Zealand
Member, Human Rights Watch Canada
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 Saint-Lambert, QC
Do you feel that the provisions dealing with irregular arrivals and designated foreign nationals are a strategic response to irregular immigration?
Director, Refugee Program, Human Rights Watch
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 David Tilson
Thank you, Mr. Frelick, sir.
Mr. Weston, you have time for one brief question.
John Weston West Vancouver—Sunshine Coast—Sea to Sky Country, BC
I thought I had five minutes.
The Chair David Tilson
Well, this meeting ends at 4:30.
John Weston West Vancouver—Sunshine Coast—Sea to Sky Country, BC
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?
Barrister and Solicitor, As an Individual
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 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 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.
Dr. Meb Rashid Medical Doctor, Crossroads Clinic, Women's College Hospital
Thank you very much.
I want to first thank you for your invitation and for the work being done to determine the impact of Bill C-31 on the arrival of refugees in Canada.
Just as a bit of background, I'm a family physician who has worked extensively with newly arrived refugees, going back about 10 years. I did my undergraduate medical degree at the University of Toronto, completed my residency program at McGill University, and did some training at Johns Hopkins University in Baltimore. I am part of the steering committee of the North American Refugee Health Conference and was a member of the group that recently published evidence-based guidelines for the assessment of newly arrived immigrants and refugees.
At present, I'm the medical director of the Crossroads Clinic at Women's College Hospital in Toronto. It's a new clinic that serves newly arrived refugees in Toronto. Women's College Hospital is an academic site, and I'm affiliated with the Department of Family and Community Medicine at the University of Toronto.
Over the last 10 years, I would say that I've seen thousands of refugee patients who've arrived in Toronto. I was quite involved with the migration of the Karen refugees from Thailand, for example. More recently, I've seen numerous Hungarian Roma patients in my practice. As such, I've seen both resettled refugees and refugee claimants, and I feel well positioned to speak to the health issues that challenge these populations. I also feel comfortable speaking to the impact of elements of Bill C-31 and the resulting impact on the health of newly arrived refugees.
I want to start by acknowledging that from where I sit, Canadian refugee policy is something that should make Canadians very proud. Despite the negative comments that have been recently widespread in the media, many of us believe that Canada has been a leader in providing refuge to some of the world's most vulnerable people. Canada has truly settled people based on a need for resettlement, not just on the ability to integrate. And I think we should be proud of this legacy. We have done it in a manner that respects our international obligations, and we have provided people with a reasonable opportunity to articulate their stories.
Canada has historically been an ally to persecuted people internationally, and I believe this is a reciprocal relationship. I truly believe that many waves of refugees have thrived post-migration and have contributed in meaningful ways to Canadian society. I think of the success of the Vietnamese refugees or the South Asian refugees from Uganda as relatively recent examples.
Bill C-31 is a huge bill that will likely significantly change the refugee system in Canada for many people. I want to preface my comments by emphasizing that we know that many of those who will be affected by this bill will eventually become Canadian citizens. As such, maintaining the health of refugee claimants would appear to be not only a moral issue but an issue that in many cases will impact the health care costs of those who will eventually become new Canadians. Changes in policy that exacerbate existing health care issues will diminish the potential of successful claimants to seamlessly integrate into Canadian society.
Although the health issues vary significantly in different waves of refugees, one consistent reality is that the migration trajectory of refugees puts them at higher risk of having mental health issues, such as post-traumatic stress disorder, depression, and anxiety. I would suggest that this should be kept in mind as we examine particular aspects of the bill that will affect refugees.
A few years ago, I met a gentleman who had arrived from a country in Africa. He was a striking figure, well over six feet tall. He was immensely articulate. He was well educated. He'd done his Ph.D. in a neighbouring country before returning to his homeland, where he became involved in politics as a member of an opposition party.
The first day I met him, this striking figure sat in my chair and he cried for an hour. His story was such that a few days before he arrived in Canada, he had been taken into custody by officials there. It was the third time he had actually been incarcerated. This time, he was beaten into unconsciousness. He woke up in the hospital, and luckily, he had a sympathetic nurse who told him that his assailants were waiting for him outside and that as soon as he woke up, they were going to take him back into custody and continue their questioning. She smiled, and she said, “You know, there's a back door over there, and I'm leaving on break.” So in his hospital clothes, he took off out the back door and made a run for the border. Luckily, when he got to the border, he had a family member there with some means who actually arranged with an agent to get him on a plane to leave the country. He is certain that like many of his colleagues, he would have died in custody if he hadn't been able to get out of the country.
I cite this case to shed some light on the issue of using human smugglers to flee persecution. We all recognize the tremendous abuse often committed by such criminals. The stories of people who have been scammed by such agents have been well documented. My patient had no choice. He was lucky that in his case he was successful in getting to Canada and in being eventually recognized as a convention refugee.
Stories like this are unfortunately not uncommon. I would think that all of us, if our lives or the lives of our families were in immediate danger, would do what we had to do to flee such persecution. This sometimes leaves people with no other choice but to use agents. Of course, this is not the ideal, and many people are victimized by their desperation.
Nevertheless, Bill C-31 seems to strike another blow to those who have had to risk their lives by using such smugglers. By recognizing the use of smugglers, the bill allows for the detention of individuals for up to a year. It prohibits people from sponsoring family members for five years, effectively keeping people from their partners and children for even longer.
Bill C-31 correctly acknowledges the tremendous risk posed by smugglers and agents. Unfortunately, it doesn't recognize that for many, smugglers are the only channels available to flee persecution. Bill C-31 increases sentencing for smugglers, but there are tremendous consequences for the refugees themselves. We heard overtures of this bill being a deterrent for those considering the use of smugglers. My experience suggests a deterrence would not apply to those who are truly fleeing impending threats. When you feel imminent danger, you do whatever it takes to leave. We would all do the same thing.
Bill C-31 allows for the detention of those suspected to have used smugglers. The impact of placing vulnerable people in detention is well documented. We know this triggers mental health issues, and the severity of these issues is proportional to the duration of detention. This impact has been documented to be particularly profound on children. Bill C-31 will force families to decide whether they should keep their children in detention with them or place them in foster care in a country and a system with which they're usually completely unfamiliar.
I have another patient in my practice. She's in my practice currently. She's from a Spanish-speaking country, one that could very easily be placed on the designated countries list. She was a criminal prosecutor for the state. After successfully prosecuting gang members, she was taken hostage, beaten, and sexually abused. She remained in the country until her neighbours informed her that people had come looking for her again one day when she wasn't home. She fled and came to Canada with the hope of having her children join her in the near future.
I'm confident she'll be seen as an individual who requires protection and will be determined to be a convention refugee. Her greatest issue now, though, is not her safety. She's separated from her two sons who are in the care of their father. She has reason to believe that they may also be under threat, and in our conversation she's so worried about them that she has spoken about returning home despite the very real threat of her being killed. Their father takes good care of them, she says, but in her words, all children need their mothers.
There's nothing unique about the torment of a parent who is separated from her children. Unfortunately, in my practice, this is too common.
Provisions in Bill C-31 will prevent some refugees from sponsoring family members for five years. These would be successful refugee claimants who have already been recognized as convention refugees requiring protection. I can't fathom the motivation for such a policy. Most of my patients who fled without family members did so because of dire circumstances. Many struggle with social isolation after arrival. Keeping permanent residents from seeing family members for over five years seems unnecessarily cruel. It undoubtedly imposes tremendous emotional stresses on people who have already suffered tremendously. Separating families of soon-to-be Canadian citizens does not seem to serve anyone well.
Finally, I want to comment on the designated country list. I have witnessed many people over the years who have had successful refugee claims despite coming from countries where some would think refugees should not originate. I think of a whistleblower in Mexico who was threatened and nearly killed despite moving to different cities on a number of occasions. I've been impressed with how the IRB takes the precaution to judge each claim on its own merit. It seems unnecessary to fast-track people from countries that don't, upon first inspection, appear to be refugee-creating countries.
My experience with the Hungarian Roma has been very instructive for me. I had not seen many refugees from Europe until encountering this particular migration. At this point I would say I've seen over a hundred Roma refugees and I've heard numerous accounts of similar stories, unprovoked violence by organized groups of neo-Nazis. The present political situation in Hungary is certainly not a topic on which I have any expertise. Nevertheless, I have sat and listened to the stories of many of my Roma patients. Their fear seems very real. Their stories, although different, share many similar themes that speak to systematic violence.
Creating two groups of refugee claimants underlies the message that some groups of populations face persecution even if the larger population does not. I have met many patients who have been determined to be convention refugees from countries that have not produced large numbers of refugees. Making the distinction based on country of origin seems to diminish the credibility of minorities who may be true victims of persecution.
As a physician who has had the privilege of working with refugee patients for many years, I've always stated that I've worked with the world's heroes. I'm amazed at the true resiliency of the human spirit. Daily I have the opportunity to serve those who have endured unimaginable trauma. Consistently they arrive with tremendous optimism and a desire to contribute to Canadian society. I'm deeply concerned that Bill C-31 will unnecessarily retraumatize a significant number of these refugees. I applaud efforts to expedite the refugee process. Nevertheless, this cannot be at the expense of the mental health of such a vulnerable population.
I will finish with a quote from a medical article from Steel et al in the Australian and New Zealand Journal of Public Health. They conclude their analysis of the mental health impact of detention by stating:
In their attempt to manage the international asylum crisis, it is important that Western countries do not inadvertently implement policies that cause further harm.
I am afraid there are too many elements of Bill C-31 that will cause harm to such vulnerable populations.
The Chair David Tilson
Thank you very much, Dr. Rashid.
Mr. Matas, go ahead.
May 1st, 2012 / 4:45 p.m.
David Matas Lawyer, As an Individual
Thank you for inviting me.
I would like to address only one of the many changes proposed by Bill C-31—the provision that deals with designated foreign nationals, which you've heard about before.
I am a former chair of the immigration law section of the Canadian Bar Association, a former president of the Canadian Council for Refugees, and a former legal network coordinator of Amnesty International, and I endorse the positions of these organizations on the bill.
What I'd like to do is not just reiterate their concerns but approach the issue from a different perspective: the inconsistency with other government policies of the components of the bill relating to designated foreign nationals.
Because there is a majority government now in Parliament, Bill C-31 will pass in its present form unless at least some government members want it changed. So the admittedly daunting task I have tried to set myself here this afternoon is to attempt to achieve just that, to attempt to persuade government members that they should want to change Bill C-31, because the provisions in the bill relating to designated foreign nationals contradict and undermine government policies.
The designated foreign national provisions of Bill C-31, like the rest of the bill, are general in nature but their genesis was quite particular. The proposals began with Bill C-49, introduced in October 2010 into Parliament in response to the arrival of Tamil boat people aboard the MV Ocean Lady and the MV Sun Sea. The Minister of Citizenship, Immigration and Multiculturalism justified the proposed legislation by reference to these arrivals. The proposed legislation is retroactive to before these arrivals, pointing to the relevance of these arrivals.
In May 2009, Sri Lanka ended a long civil war where there were 80,000 deaths. At its end, there was a frenzy of killing and mass detention of Tamil civilians. Tamils in Sri Lanka continue to be victimized by the victors in the war, and the systemic discrimination, harassment, and persecution of minority Tamils by elements of the majority continue with a vengeance.
The first policy I'd like to identify as clashing with Bill C-31 is the government policy on human rights in Sri Lanka, which I endorse. Prior to the October 2011 Commonwealth heads of government meeting in Perth, Canadian Prime Minister Stephen Harper said there should be a boycott of the next Commonwealth summit in Sri Lanka unless there is progress on human rights in Sri Lanka.
The Government of Sri Lanka appointed a commission of inquiry, which was a whitewash. The Government of Canada more or less said so, and maintained its position on the boycott after the Sri Lanka report. It rejected the report as failing to address the human rights concerns arising from the end of the civil war. Very good, but if we want to promote human rights, we have to protect refugees. That is obviously true for the individual claimant, but there is an overall aggregate linkage as well. Protecting refugees enhances respect for human rights in the country fled. Failure to protect refugees shows indifference to the plight of victims.
When resettlement states say no to refugees or gives a hard time to refugees, what violators hear is that what they do, they can do with impunity, without consequences. Bill C-31 is bad in principle, but it is even worse in context. It says to the Government of Sri Lanka, “Go ahead, mistreat the Tamil minority. We don't care.”
The second policy conflict is a statement of Minister Jason Kenney in Parliament in October 2010, again a statement with which I agree. He said:
...we have begun preliminary discussions with our international partners, including Australia, which obviously has a great stake in this issue, and with the United Nations High Commissioner for Refugees to pursue the possibility of some form of regional protection framework in the Southeast Asian region.
In part that would entail encouraging the countries now being used as transit points for smuggling and trafficking to offer at least temporary protection to those deemed by the UN in need of protection and then for countries such as Canada to provide, to some extent, reasonable resettlement opportunities for those deemed to be bona fide refugees, which is something we are pursuing.
Again, very good, but this policy of encouraging the countries now being used as transit points for smuggling and trafficking, although it sounds fine, is basically not happening.
One reason for the mistreatment of asylum seekers in Asia is the pressure put on those countries by resettlement countries. Another reason is the poor example resettlement countries give.
The logic behind the designated foreign national provisions is to discourage new arrivals from coming, like those on the Ocean Lady and the Sun Sea. Aside from its cruelty, it is likely to have a perverse effect, leading countries of proximate refuge to mimic its cruelty and prompting asylum seekers in those countries to flee in much the same way the passengers on the Ocean Lady and the Sun Sea did.
To a certain extent, Minister Kenney recognized the problem, but he said we needed a short-term solution and a regional framework with a mid-term solution. Now we're 17 months from that statement about a regional framework, and as far as I can tell, nothing has happened.
In the meantime, what we have to look at in discouraging flight is not only creating disincentives to flight, but also creating incentives for people to stay. By setting a poor example to countries of intermediate refuge, we are removing the possibility, or discouraging the development, of these incentives.
The contrast among the various government policies dealing with Sri Lankan Tamil refugees and Sri Lankan human rights are so striking that we can legitimately ask what's going on. It seems disorganized, to say the least.
One answer is the manner of government policy development. The arms of government dealing with human rights and refugees are separated. International human rights promotion is the domain of the Department of Foreign Affairs. Refugee protection falls within the bailiwick of the Immigration or Public Safety departments. While there is an administrative logic to this sort of bureaucratic separation, it makes divergence between promotion of respect for human rights and refugee protection all too easy.
The designated foreign national provisions of Bill C-31 should be withdrawn from the bill for all the reasons my colleagues have given, but also because they're not consistent with overall government policy. They clash so directly with other policies that they need to be reconsidered.
The government should be presenting a coordinated approach to human rights, refugee protection, and refugee resettlement. My hope is that the government will abandon its present clash of policies and instead present to Parliament a policy where promotion of respect for human rights abroad and protection of refugees work together.
Thank you very much.
The Chair David Tilson
Thank you, sir.
Rick Dykstra St. Catharines, ON
Thank you, Chair.
Mr. Matas, I can't resist. You've built the thesis of your argument on Foreign Affairs not linking with Citizenship and Immigration with respect to.... You used Sri Lanka as the example. Are you aware that there was a delegation of this government that went to Sri Lanka, which delegation consisted of a member of Parliament from Citizenship and Immigration and a member of Parliament from Defence and also from Foreign Affairs?