Citizenship and Immigration Committee on May 2nd, 2012

[Dan Bohbot]

The Conservatives have been in power since 2006. In 2006, out of political principle, the Conservatives did not want to make political appointments; that lasted four years, Mr. Weston. In those four years, the number of judges on the panel was reduced by half. That therefore reduced by half the panel's ability to make decisions. So, during that time, a backlog that reached 60,000 claims in 2010, was automatically created. In 2010, the Governor in Council started appointing new decision-makers to the board again. That reduced delays and increased the number of decisions that the panel could make in a year.

It is as if the minister has a car and the “check engine” and “check oil” lights come on. But he pretends that they haven't and keeps driving until the car slows down or stops. Then he gets out, looks at it and says that it is no good any more and he has to get a new one.

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

Mr. Bohbot--

[Dan Bohbot]

That is what he is doing with the immigration process.

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

But Mr. Bohbot--

[The Vice-Chair (Ms. Jinny Jogindera Sims), NDP, Jinny Sims]

You have 15 seconds.

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

—to use your analogy, the problem isn't just that little parts of the car are broken. The problem is that we have the doors falling off when we have the largest percentage of people coming from Europe, not from Africa or Asia. We know that people from those countries are having their claims rejected or abandoned in large proportions.

[The Vice-Chair (Ms. Jinny Jogindera Sims), NDP, Jinny Sims]

Mr. Weston, your time is done. Thank you.

I'm now going to go over to Madame Groguhé.

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

Thank you, Madam Chair.

My thanks to the witnesses for joining us today.

Yesterday, one of our witnesses mentioned humanitarian principles in connection with Bill C-31. He reminded us that, when refugees seek protection, they want to come to a country founded on freedom and the rule of law, a country in which they want to ask for protection. They do not come to take advantage of the system, there is no doubt about it. This is about human dignity above all. He stressed this in his conclusion when he said that they come here in order to subsequently serve Canada. I just wanted us to remind ourselves of that.

In addition, some witnesses have told us that Bill C-31 is not the best way to discourage smugglers or to stop human trafficking. In your opinion, what are the greatest threats associated with this bill?

[Richard Goldman]

In our opinion, the greatest threat is that Canada will fail to comply with its non-refoulement obligations. Under the Geneva convention on the status of refugees, we have the basic obligation of non-refoulement. That requires us to never send someone back to a country where he may be persecuted. It is also part of the convention on torture and other cruel, inhuman or degrading punishment or treatment.

This is about hearings that will take place after 30 days, by which point people will not have had the opportunity to prepare their cases. This is also about doing away with almost all recourse, as I mentioned, including the Refugee Appeal Division, possibly for most unsuccessful claimants, as well as humanitarian claims and pre-removal risk assessments.

We believe that there is a very high risk of human error when there is no subsequent review. As a result, the risk of failing to comply with the non-refoulement obligations is very high as well.

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

Mr. Bohbot, do you want to…

I'm sorry. Ms. Augenfeld, go ahead.

[Rivka Augenfeld]

I'd like to add that this bill is an attempt to control smugglers, and to control smugglers it is punishing refugees. It's punishing people because of the way they arrived. It has nothing to do with the content of their claim. The content of the claim becomes secondary to the method of arrival.

In the meantime, I would submit that the previous legislation, which is now in place, gives you all the tools you need to go after smugglers and big smugglers, and that most of the big smugglers, the ones I don't like and you don't like, are sitting somewhere in a bar in Singapore and having a drink, having collected their money. The victims may come, but the victims need help. And we don't know—based on how a person came—what the content of their claim is.

When the minister appeared, to my understanding, he spoke about Iranians with fresh scars on their bodies who come and need our protection, and he agrees these people need protection. But how does an Iranian get here? An Iranian probably comes with a false document. And if the Iranian, as most probably would be the case, paid a smuggler and came with five other people and is declared an irregular arrival, that Iranian could also end up in detention and could also end up with no appeal. So we're confusing methods that desperate people use to come and the content of the claim and the story they have to tell us.

Just to finish, I think every system needs safeguards. We agree. Every system can be used in an abusive way. And of course you have a welfare system, and you have to have safeguards against abuse. You have an employment insurance system, and safeguards. Any system has safeguards. But you don't make the system according to the abusers and then too bad if the people who really need the help get hurt. We're busy concentrating on punishing the abusers. It's completely upside down, and the people who most need the help and the people who are the genuine refugees—about whom you are, I believe, truly concerned—will be punished. They will be punished in this idea we have that we know ahead of time what the content of a case is, based on a means of arrival.

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

Okay.

Like other countries, Canada is a signatory to the Geneva convention and being a signatory means having a legal and moral responsibility. Now, the government tells us that Bill C-31 will give refugees more protection. Do you share that opinion?

[Richard Goldman]

Not at all, for the reasons we have touched on already: unrealistic timelines, lack of the right of appeal, mandatory detention for many claimants for one year.

We agreed, touching on something that's been brought up a number of times, that there are problems with the current system. Why are there problems? As our colleague Maître Bohbot said, in large part because the government did not staff the Immigration and Refugee Board and essentially broke the system, and now says that because the system's broken we have to do something radical.

We agree that somebody should not have to wait two years for a decision on their refugee claim. However, we don't think you should throw out the baby with the bathwater. Thirty days is too short. No appeal makes it impossible to correct errors. Bill C-11, for all the possible criticisms, was a relatively balanced piece of legislation. We think we should be working on that and improving that, rather than going to something much more radical that denies people's rights.

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

Okay. Very good.

Mr. Bohbot, do you feel that mandatory detention will serve the public interest and the administration of justice?

[Dan Bohbot]

Absolutely not. We are going to find ourselves with a system that will be so unfair, a system that will treat human rights and equality before the law with so much contempt. Detaining people for prolonged periods will put the administration of justice into disrepute and fan the flames of legal challenge. It will cost taxpayers money because the government will have to defend its decisions. Anyway, there is no guarantee that the detention is necessary, no assurance that the identity of those people will be checked.

Take the example of the Sun Sea and the Ocean Lady, where the government did detain the passengers in order to determine their identity. The present system has reviews of the detention at regular intervals. It works well. There is no reason to impose automatic 12-month detentions.

[The Vice-Chair (Ms. Jinny Jogindera Sims), NDP, Jinny Sims]

Thank you, Mr. Bohbot.

We're now going to move over to Mr. Cotler for five minutes.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Madam Chair.

I would like to ask each of our witnesses the same question.

As you know, the Minister of Justice has an obligation, under the Department of Justice Act, to determine whether any prospective legislation comports or complies with the Canadian Charter of Rights and Freedoms, and to table a report if there are inconsistencies between the legislation and the Charter of Rights.

My question to each of you is, if you had been advising the minister on this legislation, what would your advice have been, and would you have stated to him or advised him that there are certain provisions that needed to be tabled for their inconsistency or non-compliance with the charter?

[Richard Goldman]

I must say, I feel a little nervous about answering, because you were my former constitutional law professor, so I feel I'm going to be marked on this response.

It seems to me that there could be nothing clearer than what the Supreme Court said in the Charkaoui security certificate case when it stated that indefinite detention without judicial review in Canada is contrary to the charter. If I'm wrong on that, please let me know, and I'll go for my continuing education course at McGill.

[Irwin Cotler, Liberal, Mount Royal, QC]

No, I concur with that response. I didn't want to state it in my question.

That same question goes now to Mr. Bohbot, if he has an answer.

[Dan Bohbot]

Yes, in my presentation, I quoted the Supreme Court decision in the Charkaoui case, which restated the decision in the Sahin v. Canada case in 1995.

So it is impossible for foreign nationals to have the validity of their detention determined under sections 9 and 10(c) of the Canadian Charter. So prolonged detention without review or regular and effective determination of the detention runs counter to either section 7 of the charter or section 10.

So I would have said the same thing as my colleague and I would not have recommended a one-year automatic detention.

[Irwin Cotler, Liberal, Mount Royal, QC]

My next question has to do with international charters.

In the last round, and when we were discussing Bill C-11, questions were raised about the legislation and now this particular piece of legislation and its compliance with our international law obligations. In your view, how compliant is Bill C-31 with our international law responsibilities, and what might be the result of non-compliance with those international legal responsibilities?

[Richard Goldman]

If I may begin, we feel that it violates the refugee convention in terms of penalizing refugees because of their mode of arrival. We feel it violates the International Covenant on Civil and Political Rights through mandatory detention, which is arbitrary, and through family separation of up to five years. Equally, it violates the Convention on the Rights of the Child. It ignores the best interests of the child, among other contexts within the detention context. Also, by denying the right to family reunification, it creates a separation between children and adults. Those are the main points of non-compliance.

How would it impact Canada? Well, it will give us a bad name, and also could lead to a certain amount of international litigation before treaty bodies.

[Rivka Augenfeld]

If I may just add.... Sorry.

[The Vice-Chair (Ms. Jinny Jogindera Sims), NDP, Jinny Sims]

Mr. Cotler, was your question put to both of them?

[Irwin Cotler, Liberal, Mount Royal, QC]

Yes, it was put to all of the witnesses.