Citizenship and Immigration Committee on May 3rd, 2012

[Chantal Tie]

The Canadian Council for Refugees believes in a refugee system that's fair, independent, and affordable and one that honours our legal obligations under the charter and the UN convention. We have joined with Amnesty International, CARL, and the Canadian Civil Liberties Association in calling for the withdrawal of this bill. Our briefs detail the myriad ways in which Bill C-31 is unconstitutional, undermines our humanitarian traditions, and violates our international obligations. We care deeply about all of these issues, but today we'll be speaking only about detention and processing times, from a family values and fiscal responsibility perspective. We're asking that those of you with the power to withdraw this bill ask yourselves: is Bill C-31 compatible with these values?

What does family values have to do with C-31? If family values means anything at all, it has to mean protecting and preserving the family and caring for children. It means that we don't deliberately do things that we know will harm families and children physically, socially, or emotionally. Two of the ways this bill harms families and children is by detaining designated arrivals on a mandatory, unreviewable basis, and by delaying permanent residence for five years, thereby preventing family reunification. The CCR has asked, how is detaining designated arrivals in jails or detention facilities compatible with protecting children and families? How can you justify placing children in the care of Children's Aid or in jail because you insist on imprisoning their parents?

I say “jail”, because in Ottawa, where I practise immigration and refugee law, people are detained at the detention centre on Innes Road, along with common criminals. They are subjected to locked cells, mandatory searches, sometimes strip searches, severe restrictions on visitations, and mobility restrictions. Men and women are housed separately, with few opportunities to socialize and communicate. If they have mental health issues, they are placed in maximum-security segregated detention.

[Loly Rico, Vice-President, Canadian Council for Refugees]

Good morning. I came to Canada 22 years ago as a refugee with my husband and two children. At that time I was five months' pregnant. I am bringing to you my story to explain how important it is to withdraw Bill C-31.

When I arrived, I was protected by Canada, and my children were able to grow up with their father at their side. In my country, my husband was almost killed and he was jailed and tortured. In gratitude for our protection and the treatment we received, we founded a refugee house where we welcome women and children who are fleeing gender persecution.

If we had arrived in Canada after June 29 of this year and this bill was law by then and we were designated on arrival, we would have been be detained, my children and I would have been separated from my husband, my children would have been given to a foster home or stayed in jail with me, and I would have given birth in jail.

At the immigration holding centre in Toronto, there are no facilities to keep families together. Women are in one wing with their children, and men are in another wing. They are only allowed to meet for 45 minutes in the morning and 45 minutes in the afternoon. Imagine yourself in that situation, only being able to see your family for a short time every day, only being able to carry your newborn baby for a short time every day. This is an outright violation of Canadian values.

What I'm trying to say is that we need to focus on the Canadian values of keeping families protected and together. Bill C-31 is a violation of these values.

Another way we will be keeping families separated is through the five-year waiting period before applications for permanent residency will be allowed by designated arrivals.

Most of the women who come to our centre have left behind young children. In the current process it takes them roughly six years to reunify with their children because of the delays, especially if visas have to be processed through the Nairobi office. With the five-year waiting period, they will be separated from their children for 11 to 12 years. This could mean half of a child's life. This will have a strong emotional and social impact, because these children will need to have specific programs and support to be appropriately reunited with their mothers and fathers and vice versa. We are seeing the social impact on the families that are reunified after eight to ten years.

Refugees feel tremendous guilt at having been safe here while their children and spouses were left behind in precarious situations. Families need to go through a process of recognition where children need to be reacquainted with their mothers and the mothers recognize and accept that their children are no longer their babies, but adolescents. Families need help to make this adjustment, which sometimes is impossible. Often they need counselling to adapt.

The CCR asks: How is deliberately separating refugees from their families compatible with family values?

[Chantal Tie]

What does fiscal responsibility have to do with Bill C-31? We believe fiscal responsibility is about spending taxpayers' dollars wisely. The CCR is committed to an affordable refugee protection system. When money is wasted, it is not available to fund the important task of providing protection. Right now, we understand from Mr. Dykstra that only one percent of refugee claimants actually need to be detained.

Our current system is doing an individualized risk assessment, which works well to protect our society and ensure the integrity of the immigration system. The figure we used was 6%, from CBSA data, which means that 94% of refugee claimants on average do not need to be detained. If this bill passes, we will be detaining 100% of designated arrivals for a year. The math is simple. Ninety-four percent of the people we will be detaining will not need to be detained, if past experience serves us well.

There is no reason to believe that a smuggled refugee claimant is not a genuine refugee. A refugee's mode of arrival tells us nothing about the genuineness of the claim. The UNHCR has repeatedly pointed out that many genuine refugees arrive irregularly and without papers. The reason is obvious: If you're being persecuted by your government, it is hardly likely to give you travel documents or an exit visa to facilitate a visa application to Canada.

The cost of detaining the 94% of claimants who do not need to be detained for that year is huge, if we use the CBSA's figures of $200 a day or $73,000 a year. But if refugee claimants were given work permits and were able to maintain employment and become taxpayers, the cost differential would be enormous.

There's now compelling evidence of the devastating impact of the cost of mandatory detention in Australia. The figures are all in our brief. Look at them. Let's learn from the Australian experiment instead of repeating its mistakes.

And remember, none of these cost estimates take account of the enormous human cost of detention, the impact on the physical and mental health of the detainees, which is severe. Neither do they take into account the future cost of managing these impacts once the refugees are accepted and join our communities as permanent residents. These include documented incidents of—

[The Chair, Conservative, David Tilson]

Could you wind up, Ms. Tie, please? We're well over our time.

[Chantal Tie]

—self-harm, depression, suicide, anxiety, and post-traumatic stress disorder.

[The Chair, Conservative, David Tilson]

Thank you, Ms. Tie, and Ms. Rico. I appreciate your presentations.

Monsieur Sougavinski. You have up to eight minutes.

[Marc Sougavinski, Director General, Centre de santé et de services sociaux de la Montagne]

Mr. Chairman, members of the committee, we thank you for hearing us today on this important democratic exercise.

I am Marc Sougavinski. I am the CEO of an organization called the CSSS de la Montagne, a public health and social service organization in Montreal. Mrs. Marian Shermarke, our expert in immigration, is accompanying me.

The CSSS de la Montagne is a professional university organization of the Réseau de la santé et des services sociaux du Québec—Quebec's health and social services network—specializing in issues related to immigrants and refugees. The CSSS has a special program called PRAIDA. That is a service with over 60 years of experience and expertise in the reception and integration of asylum seekers. PRAIDA—formerly SARIM—brings together a team of workers and doctors that was created for the specific purpose of providing support and appropriate monitoring to asylum seekers, rather than leaving them to their own devices and without resources in Montreal.

In about 60 years, PRAIDA has dealt with over 350 claimants and has provided them with support. The experience is concrete. We are a public organization. We do not undermine government goals. We are state professionals, and we care about effectiveness and equality in the fast and fair provision of services, to paraphrase Minister Jason Kenney.

We agree with that.

Among other things, PRAIDA has agreements with all Canadian immigration services and works closely with border services. We want to take this opportunity to highlight the excellent co-operation between our services.

We also care about the protection of Canadians. We are against criminals and abuser of any kind, and we want to make sure that the money invested in the programs is invested in a way that is judicious and useful to Canadians. Finally, I want to specify that we are a health and social services organization. There are all kinds of needs in that area, and we are not looking for more work or an increase in human suffering. There is enough of that as it is.

So I hope no one will say that we somehow have some kind of conflict of interest in the matter.

What's disturbing about the bill is the image it conveys—it makes it seem as though most asylum seekers are swindlers and liars who absolutely need restrictive, even punitive, measures. There is the idea of good guys and bad guys, where most claimants are bad guys. We are thinking of those people whose claim is denied, for instance. That may be a popular belief that's easy to spread among uninformed crowds, but for people like us who have been receiving asylum seekers for 60 years, that is untrue.

There are certainly some people who abuse the system, but as in any area of human activity, such as politics, fraud and system abuse are not committed by the majority, even though popular belief may indicate so. Prisons are for criminals, and we agree with that. However, they are not a place for refugees, vulnerable individuals, mothers and their children—not even those who are 16 years old. The emphasis placed on imprisonment and the potential consequences for children make us very uncomfortable.

Also let's be honest: a jail is a jail. Don't believe those who will tell you that it's just a light form of detention. It's not what is happening. There's no such thing as light preventative jail time. A jail is a jail.

We are in agreement with having shorter delays for someone to receive an audience, but not to the point that it prevents the person someone from preparing their case.

Currently, the time frames are too short and even harm the so-called good refugees—if we are to follow that questionable logic.

We feel that it is unthinkable for Canada to consider imprisoning children or separating them from their parents. All of you are probably parents, and I am sure I don't need to explain that in detail. This measure makes no sense and must absolutely be corrected.

Ms. Shermarke will talk about more specific clinical issues.

[Marian Shermarke, Clinical Advisor, Centre de santé et de services sociaux de la Montagne]

Mr. Chairman, I join Mr. Sougavinski in thanking you for the opportunity to come before you and to share with you our concerns with regard to Bill C-31.

The idea behind Bill C-31 is to reduce the activities of smugglers and criminals by punishing asylum seekers who come to Canada through underground channels. We feel that this bill is an academic exercise because it will not put a stop to claims by individuals who turn to smugglers to bring them to Canada, so that they can seek asylum for their protection. That academic exercise will, on the contrary, put asylum seekers' lives at greater risk. Those who do arrive may be in bad shape.

I want to share the story of two young Chinese nationals who left China for Hong Kong with a smuggler. From there, they fell into the clutches of other smugglers who took them to Thailand. Then, they left for France and, from there, to South Africa. From South Africa, they went to Brazil, in order to finally join their father in Canada, a father who was an asylum seeker, an accepted refugee. Those young people were abused on their way here. They lived in terrible conditions and were assigned to hard labour. They were in the clutches of smugglers for much longer than expected.

So we have to be careful about what we wish for.

I am now getting to my comments on the time frames provided for hearings. We think that the time frames for meeting hearing requirements are too short. Those time frames do not take into consideration the reality of asylum seekers. By not taking into account the context within which asylum seekers arrive, Bill C-31 sets them up for failure at their hearing.

The reality of asylum seekers is that, within those very short time frames, they must also get their bearings in a society whose language they do not speak. They have to find housing. They also have to initiate the immigration claim procedure and find a lawyer.

Regarding the medical aspect, it is important to understand that those people have been damaged by many traumatic experiences in their country of origin and also by what they have suffered since their departure. During that period—which is part uprooting and part quest for safety—asylum seekers, although traumatized and vulnerable, focus all their efforts on maintaining their physical and mental integrity so that they can reach their final destination.

That concerted psychological effort is often a last-ditch attempt that the country of refuge must match by providing the best possible reception and integration. If the host society fails to fully provide the required protection, the asylum seekers' mental and physical integrity will once again be compromised. That is another possible source of trauma, which makes those individuals even more vulnerable.

[The Chair, Conservative, David Tilson]

Perhaps you could wind up, Ms. Shermarke.

[Marian Shermarke]

Thank you very much. I shall.

For instance, given the many stages they had gone through and all the trauma they had suffered, the Chinese may have gotten a break once they reached Canada. Given their situation, they had insufficient time to prepare for their hearing in 30, 40 or 60 days.

Last, but not least, we urge you as leaders of a democratic society to give asylum seekers the benefit of the doubt. To jail them in order to catch the 6% of them who are criminals would be illogical. There has to be a better way.

Thank you very much.

[The Chair, Conservative, David Tilson]

Thank you, Ms. Shermarke.

Ms. Stalker, Mr. Galloway, you have up to eight minutes.

[Donald Galloway, Co-Chair, Legal Research Committee, Canadian Association of Refugee Lawyers]

Thank you, Mr. Chairman.

We have decided that we will share our time, which suggests that I have only four minutes to make my pitch. Could you please let me know when my time is running out?

[The Chair, Conservative, David Tilson]

I'll do my best.

Thank you.

[Donald Galloway]

Thank you.

I have decided to limit my remarks to five clauses that are in the bill. I'd like to draw your attention to clause 10, the clause that talks about designating foreign nationals.

I'd like to move on from there to talk about the mandatory detention clauses, and I'd like to try to clarify some of the arguments from the earlier session about the constitutional issues. I'll try to be as simple as possible, although time is not on my side in that regard.

Thirdly, given that I'm a law professor, I would like to deal with something a little bit more arcane, but which I think is quite important. That is clause 16 of the bill, which deals with the refusal to grant travel documents to refugee claimants until they have gained permanent residence or some sort of status within the country.

Let me address the clauses dealing with designated foreign nationals and mandatory detention—clause 10 as I said, and clauses 23 to 25. The issue I want to raise is the constitutionality of the provisions dealing with mandatory detention. Let me try to explain why the constitutionality issue is so important to the Canadian Association of Refugee Lawyers and why we find it so puzzling that the constitutional issues have not been addressed in these clauses.

The puzzlement, the mystery of this, relates to the fact that the issue of detention has been dealt with exceptionally clearly by the Supreme Court of Canada in the last five years. Normally when you mount a constitutional challenge, you identify that you've got an uphill battle. The issue may require analogies to be drawn to other areas of law. It may require complicated arguments. But here we have a record from the Supreme Court of Canada in the Charkaoui case that has made certain matters explicitly clear.

First, they say that detention is an extreme measure. That's their language.

Second, the issue is not the constitutionality of detention per se but the constitutionality of detention without prompt and independent review. That is our concern, that we institute and maintain a system with review of decision-making. We are not promoting having no detention; it's the unconstitutionality of detention.

I think that's the briefest way in which I can refer to the issue of constitutionality. I'll take up the issue should you have questions for me.

Let me go to the issue about the travel document.

[The Chair, Conservative, David Tilson]

You're up to four minutes, sir.

[Donald Galloway]

Clause 16 tells us that only permanent residents should be given a travel document. I imagine this is because we are concerned about granting refugee status to individuals and then granting them a travel document and, lo and behold, they affront the system, if you like, by returning to their country of origin.

The single point I'll make at this stage is that this is not the way the system currently works. A travel document to be given to a refugee is not—I repeat, not—valid for that person to return to their country of origin. That is the law as it currently exists. I think that is being forgotten by the drafters of clause 16.

I will now pass on to my colleague.

[Lesley Stalker, Member-at-large, Canadian Association of Refugee Lawyers]

Good morning, members of the committee.

My remarks today stem from a basic premise, which is that everyone in this room is committed to the protection of people who are at risk of persecution in their countries of origin, and that no one in this room would applaud or welcome the refoulement, or return, of persons to a place where their lives or liberty would be at risk.

This has to be our touchstone. As we go through the bill, we have to ask ourselves whether the provisions of the bill impede or enhance our ability to identify those who are in need of protection.

I would like to share my concerns about two groups of claimants who are, in my experience, likely to fall through the cracks and face refoulement under the ultra-fast timelines of Bill C-31, regardless of our good intentions.

The first group includes those who are traumatized because of past persecution.

There's an inherent conundrum in our refugee system, and it's this: The people who have been severely persecuted in the past and are most in need of protection are often the least able to tell their stories. There has been extensive scientific research into this. Many people think that the first story a claimant tells is likely to be the truth, so it's important to get the account before the claimant has a chance to colour his or her story. But in fact, it typically takes a great deal of time to get a coherent and accurate account. There are a number of reasons for this, but for reasons of time, I won't go through them. I'd happy to answer questions later, if you would like elaboration on the scientific reasons trauma impedes the ability to share a story.

The problem, for practical purposes, is that the more severely traumatized an individual, the greater the likelihood that he or she will be found lacking in credibility. The person's account is likely to be found incoherent, inconsistent, vague, or contradictory. So the claimant is likely to be dismissed as lacking in credibility.

The only way to counter this is to educe medical, psychological, or psychiatric reports that corroborate the physical and mental scars of trauma. And this takes time. It takes time, because claimants who are traumatized often will shut down their experiences. They don't want to talk about them; it's their way of coping. The accelerated timelines under Bill C-31 will impede our ability to identify those who have suffered persecution.

The second group I am concerned about are those who are in detention. As you've heard this morning, detention in all centres outside Toronto and Montreal is in correctional facilities. Correctional facilities are designed to manage people who have been convicted of or charged with criminal offences. These are typically people who are quite difficult to manage. Moreover, correctional facilities impose quite severe restrictions on the ability of people inside the facility to communicate with the outside world. These restrictions apply to refugee claimants. There are severe restrictions on incoming calls. There are severe restrictions on outgoing calls. There is no access to Internet. There is no access to email. As a result, claimants have a great deal of difficulty obtaining identity documents or other evidence germane to their claims, such as complaints they may have filed with the police in their countries of origin, medical reports from hospitals, and so forth.

They also have—

[The Chair, Conservative, David Tilson]

We have to stop soon.

[Lesley Stalker]

Okay. Thank you.

I've tried to allude very quickly to the restrictions imposed on inmates and refugee claimants to highlight the very real and concrete barriers to protection they face.

Thank you very much for your time.

[The Chair, Conservative, David Tilson]

Thank you, Ms. Stalker. I'm sorry. I know that all of you have more to say, but time is a problem. Perhaps that information will come out during questions from the committee.

We'll go to Mr. Menegakis.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Thank you, Mr. Chair.

Thank you to all of our witnesses for appearing before us today. This is indeed a good exercise in democracy. We welcome your comments and input as we are studying Bill C-31.

I'd like to make a few quick points if I may, and elaborate in the short time that I do have about the bill and about Canada and what Canadians expect of good government when it relates specifically to the issue of immigration and refugees. As Canadians, we take great pride in the generosity and compassion of our immigration and refugee programs. But Canadians have no tolerance for those who abuse our generosity and take unfair advantage of our country. I'll allude to some examples of that.

Canada remains one of the top countries in the world welcoming refugees. In fact, we welcome more refugees per capita than any other G-20 country. Canada welcomes one in ten of the world's resettled refugees. That is more per capita than almost any other country on the planet. In fact, our Conservative government has increased a number of refugees resettling each year by 2,500 people.

Bill C-31 proposes changes that build on reforms to the asylum system passed in June of 2010 as part of the Balanced Refugee Reform Act, as you may know. The proposed measures in this new bill will provide faster protection to those people to whom I believe you're all referring, those who genuinely need refuge, and faster removal of those who do not.

I want to speak a little bit about the processing times. With the measures in Bill C-31, the time to finalize a refugee claim would drop from the current average of 1,038 days to 45 days for claimants from designated countries and 216 days for all other claimants. Surely for someone who is fleeing persecution in their country or torture or possible death, to be in limbo in a system for 1,038 days is traumatic.

If we can get those folks processed faster into Canada and reduce that period to as short as 45 days, or an average of 216 days for those who are not coming from designated countries, that will speak to compassion, to faster family reunification, and to the humane aspect that we all want to see in dealing with people who really need our help and support.

As a government, we have a responsibility to ensure the safety and security of Canadians. I don't think anybody in this country would want to permit anyone into their neighbourhood without knowing who they are, without somebody knowing their identity. That's important. As we heard in earlier testimony, and some of you alluded to hearing the testimony this morning or perhaps on other days, it is incumbent on us to identify people before we allow them into our country.

I'm going to use two, what I believe to be, fine examples of what can happen if we do not exercise that responsibility. The Sun Sea and Ocean Lady arguably carried many people who were fleeing persecution in their country and who needed our support and help. On the Sun Sea, four people were found to be a security risk and one was found to have perpetrated war crimes. Five people were denied entry. From the people on the Ocean Lady, 19 were deemed to be a security risk and 17 were found to have perpetrated war crimes. This was a total of 41 people. Had they not been detained, had we not taken the time to identify them, to ensure the legitimacy of their claims plus who they were, we would have permitted 41 people into our neighbourhoods around our families, around our children, around parents.

[The Chair, Conservative, David Tilson]

You have two minutes.

[Costas Menegakis, Conservative, Richmond Hill, ON]

I have two minutes left? I've used five already?

Okay.

It's a general question, not for you specifically, but a government has to ask, is it good government? Are we looking after the interests of our citizens if we simply say that we won't focus on the less than 1% of the total refugee claims of 10,000 to 12,000 people per year, and welcome everybody into the country without the proper time to identify who they were, which detention allows us to do? Certainly that would pose a security risk for us.

There is no Canadian, I can assure you, no one in my riding of Richmond Hill, who would be supportive of that.

Do I have a minute left?

I'm going to pass that minute to Ms. James because she asked me to, and I'm kind. Thank you.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you, Mr. Menegakis.

I actually had a question for Ms. Shermarke.

I was a little alarmed because I believe you said that you think we should give the benefit of the doubt to asylum seekers, and then you mentioned even if 6% of them are criminals. I heard you use those two pieces of information in the same sentence. I'm really quite alarmed by that. So my question to you is that given the fact that the number one priority of any government is the safety and security of its citizens, do you believe that we should be on the side of ignorance and just allow people to be released into Canadian society, or should we be on the side of caution to make sure that those who come into this country without proper documentation are identified and released?

As a side note, with this particular bill—

[The Chair, Conservative, David Tilson]

Sorry, Ms. James. We're out of time.

Mr. Scott, welcome to the committee. I know you've been on the list for quite a while, but we finally give you a chance.