Citizenship and Immigration Committee on May 3rd, 2012

[The Chair, Conservative, David Tilson]

Good morning, everyone. This is the Standing Committee on Citizenship and Immigration, meeting number 38, Thursday, May 3, 2012. The orders of the day are pursuant to the order of reference of Monday, April 23, 2012, Bill C-31, An Act to amend the Immigration and Refugee Protection Act and other acts.

We have two witnesses today, Delphine Nakache, a professor with the Faculty of Social Sciences at the University of Ottawa, and James Bissett.

You have been here many times, sir. Good morning to you.

You each have up to 10 minutes to speak to us.

We will start with you, Ms. Nakache. Thank you for coming.

[Prof. Delphine Nakache, Assistant Professor, Faculty of Social Sciences, School of International Development and Global Studies, University of Ottawa, As an Individual]

Good morning, everyone. My name is Delphine Nakache. I am a law professor at the University of Ottawa, but you are right that I am teaching and researching in the Faculty of Social Sciences. But my background is a legal one.

As an outside consultant, I wrote a report for UNHCR in December 2011 on the human and financial costs of detaining asylum seekers in Canada. My presentation today will focus on the detention conditions of asylum seekers in provincial prisons. I will talk about that issue at length because very few studies have been conducted on it. I really wanted to highlight that aspect.

If Bill C-31 passes, the number of asylum seekers detained in provincial prisons will increase significantly. However, there are already a number of substantial issues related to the detention of asylum seekers in those institutions. Therefore, it is of the utmost importance that those issues be resolved before the situation worsens.

Given that the highest increase in immigration detention is expected in British Columbia, the most likely destination for boat arrivals, my presentation today focuses on conditions of detention for asylum seekers in B.C. But this situation is broadly similar across Canada.

What is the overall situation in Canada?

During the past three years, according to the CBSA, the use of provincial prisons for immigration purposes has increased for all categories of immigration detainees, reaching over 36% of all immigration detainees.

Asylum seekers are directly affected by that increase. From 2005 to 2009, 23% of refugees were detained in provincial prisons, on average. From 2009 to 2010, that figure was 29%. So there was an increase in the number of asylum seekers detained in provincial prisons. It is important to point out that the vast majority of those people were not detained because they posed a threat to security. They were detained only for immigration reasons. Generally speaking, this means that almost one asylum seeker out of three who is detained under the Immigration and Refugee Protection Act is locked up in a prison-like institution—in other words, a municipal or provincial prison. In most cases, we are talking about a provincial prison.

How can we explain those figures? It's fairly simple. They are due to the fact that Canada has only two CBSA immigration centres, also referred to as immigration holding centres. There are actually three such institutions, but two of them are used for detaining foreign nationals for periods of over 72 hours. There is one centre for Greater Montreal and another one for the Greater Toronto Area. Therefore, elsewhere in Canada, asylum seekers are detained in municipal or provincial prisons. Provincial prisons are also used across Canada to detain low-risk individuals with mental or behavioural disorders.

What is the situation in British Columbia, specifically?

In British Columbia, detained asylum seekers are brought to the B.C. immigration holding centre for the first 72 hours only, and then are automatically transferred to provincial prisons.

Although there are medium security prisons in British Columbia, all asylum seekers are detained in maximum security prisons. The reasons for that are unclear.

B.C. Corrections also says that it wants to treat all detainees the same way so as to avoid any discrimination between inmates. Thus, B.C. guards are not informed of the immigration status of detainees

and asylum seekers are submitted, just as all other common prisoners, to all the institutional rules. This may mean that they have to wear prison uniforms and that their freedom of movement is extremely restricted.

The lack of special consideration for asylum seekers is problematic.

For instance, unlike asylum seekers detained in CBSA centres, imprisoned individuals have no Internet access. Their telephone calls are extremely restricted. Those calls can be made only when asylum seekers are in the common room—so at very specific times of day. In addition, since the calls are monitored for reasons that are understandable in a criminal context, they can be interrupted at any time.

In addition, local calls are free for asylum seekers detained in CBSA immigration holding centres, or IHCs, but individuals detained in prisons have to pay for them. Inmates must use a calling card issued by the penitentiary to make international calls. However, according to my research experience and what I witnessed in British Columbia, the calling cards do not work for all the countries asylum seekers come from.

These are concrete issues, but under those conditions, you can understand that it is very difficult for asylum seekers to gather the documents they need to claim refugee status, especially since those claimants rarely receive outside help.

Regarding correctional centres, aside from the Red Cross that visits those centres at very irregular intervals, no NGOs are allowed to visit asylum seekers in prison. In addition, it is very difficult for those asylum seekers to seek legal advice while in detention. That is much more difficult than for those detained in CBSA immigration holding centres.

The situation contrasts starkly with the situation in other industrialized countries.

The problematic situation in provincial prisons is exacerbated by a legal uncertainty surrounding the sharing of jurisdiction between federal and provincial authorities. This is actually a context where, under the Immigration and Refugee Protection Act, the CBSA is the federal entity with the authority to detain asylum seekers. However, under the Constitution Act, 1867, provinces are responsible for the care, custody and control of asylum seekers detained in provincial prisons. This means that, although the CBSA has the decision-making authority regarding the detention of asylum seekers, that agency has no control over the way provincial correctional services manage their prisons.

As noted in my report, one CBSA respondent mentioned that “the situation today reflects a highly ineffective use of taxpayers' dollars, since CBSA is paying so much for the correctional facilities but has no 'control' over what provincial prisons are doing.”

At the end of my presentation, I will talk about the financial cost of detention.

Strict punitive rules in prisons were established with a specific goal. That goal is simple: to establish a framework for common prisoners' detention conditions. So there is no apparent reason for those rules to apply to asylum seekers detained under immigration law and not criminal law. That is why international law clearly stipulates that asylum seekers should be detained in conditions appropriate to their status and not as individuals deemed or recognized as guilty of an offence.

In recognition of this issue, a 2009 report by a senior official from the U.S. Department of Homeland Security acknowledged, for example, that the detentions of immigration detainees in U.S. correctional facilities “impose more restrictions and carry more costs than are necessary to effectively manage the majority of the detained population”.

The costs are clearly human rights costs. To name a few, asylum seekers in prisons are subject to unnecessary and disproportionate restrictions of their liberty, which impedes their ability to seek international protection. There are also concerns about the safety of detained asylum seekers in B.C. prisons, most of whom have likely never experienced a prison-like environment before and are left to co-mingle with the regular population in prison. In addition, dispersing asylum seekers in high-security prisons, instead of medium-security prisons, is a disproportionate management of the asylum seeker population given the very low security risk that asylum seekers present.

In addition, there are some financial costs involved. Of course, it is difficult to obtain statistics on the financial costs of detention. On that point, I would like to refer you to a 2010 report the auditor general produced on detention in immigration.

[The Chair, Conservative, David Tilson]

You have one minute, Professor Nakache.

[Prof. Delphine Nakache]

Perfect.

This report shows that CBSA payments for provincial prisons exceed CBSA-run detention facility costs. So contracting with provincial facilities in several parts of Canada represents a huge cost to taxpayers.

Therefore, before measures are implemented for detaining more asylum seekers for a longer period of time, it is important to first address the real issues surrounding the detention conditions of asylum seekers in provincial correctional establishments.

Some steps toward greater involvement by the federal government have already been taken. However, it is essential to go further to solve these problems before those problems get exacerbated if Bill C-31 is implemented.

Thank you.

[The Chair, Conservative, David Tilson]

That was right on the button, thank you.

Mr. Bissett.

[James Bissett, As an Individual]

I'm going to read my statement today in the interest of time.

I'm not going to talk this morning about how terribly expensive our current asylum system is, or how it encourages human smuggling, or how it presents a serious security threat to Canada, or how it undermines our immigration system, or how it damages our bilateral relations with many friendly countries and compromises our trade and tourist industry. I'm not going to talk about why it's the primary reason that our southern neighbour, the United States, has in effect militarized its border with us and, finally, about how it undermines and inhibits Canada's efforts to help resolve global refugee problems.

For over a quarter of a century, every attempt to reform Canada's defective asylum system has met with failure. The primary reason has been the willingness of our politicians, from all sides of the House, to accept the arguments of the powerful refugee lobby that exists in the country, a lobby that has fiercely resisted every attempt to introduce even the most modest reforms in a clearly dysfunctional system. The lobby consists of, among others, immigration lawyers, immigration consultants, the Canadian Council for Refugees, churches, Amnesty International, and a host of other advocacy groups and non-governmental organizations. Many of these organizations receive substantial taxpayer funding for their operations, and many of them do an excellent job in helping the asylum seekers and refugees who get into the country. There's no question about that.

One might question their sincerity in posing as defenders of poor refugees against a malevolent big government trying to close Canada's doors against the persecuted of the world, but they have the right to lobby for a policy change that serves their interest, and I don't challenge that. What is more disturbing, really, is that this lobby has played a dominant role in the formulation of asylum policy for the last quarter of a century. It is almost as if Parliament has delegated its responsibility for policy-making in this area to the lobbyists. The Department of Citizenship and Immigration, for example, actually calls these lobbyists stakeholders, not lobbyists.

You will notice that I make a clear distinction between asylum policy and refugee policy. The refugee lobby does not make this distinction and it likes to mislead the media and the public into believing that all of the thousands of people who annually show up at our borders spontaneously and uninvited and claim to be persecuted are counted as refugees. Now, that is wrong. They are not refugees. They are not refugees until the IRB adjudicates their claim and makes a final decision as to whether they meet the refugee definition.

Since Canada allows everybody and anybody who shows up at our border to receive a quasi-judicial tribunal hearing, with, in most cases, free legal advice and access to the courts, the refugee board, of course, has always had and faced a serious backlog. The backlog now is around some 40,000 people waiting to have their claims heard, which means that if you come in today and make a refugee claim, you probably won't be able to get your hearing for two years or so. The longer it takes for the hearing, of course, the more difficult it is for anyone to decide to send them home, even when these people are not considered refugees. It's almost impossible to do so.

Take the two Tamil ships that arrived, one three years ago and one two years ago. There were some 500 asylum seekers, and to my knowledge, fewer than 20 have been sent home. The rest are still here and will be here probably for another year or two. They're not going home. You can be sure of that.

In 1989 when new refugee legislation was being prepared to address this new phenomenon of people suddenly arriving in Canada claiming to be refugees, Lloyd Axworthy was the minister, and he assigned a professor from the University of Ottawa, Edward Ratushny, to do a study and make recommendations on how Canada should handle this problem.

Ratushny recommended that in order for any quasi-judicial tribunal to be able to function properly, it had to ensure that not everybody had access to it. If you give complete and non-regulated access to any quasi-judicial tribunal, Ratushny said, it's bound to fail. It can't handle the volume and will be overwhelmed by numbers. Of course, that's exactly what's happened with the refugee board.

The legislation in 1989 indeed did include Ratushny's recommendation, which was to clear out very swiftly at the front end of the process anyone coming from a safe third country. There was no point in giving them protection. They already had it in the country they were coming from and, therefore, in Ratushny's view, they should not be eligible to apply, as they would just clutter up the system. He of course was right, but as usual he was not heeded.

Three days before the legislation came in that would have included the provisions for the government to decide the countries that were safe, Barbara McDougall, the then minister, announced that the legislation would come into effect but without enacting the safe country provisions. This of course meant that the board was already running into serious problems.

Two years later, in 1991, the number of asylum seekers coming into Canada had gone up to 67,000. A couple of years later, it was 55,000, then 58,000. It's continued at a very high level ever since because there are no means of screening out quickly those who are evidently not needing our protection.

The UN convention on refugees imposes one fundamental obligation on its signatories, and that is not to send those back to a country where there is fear of persecution. The convention does not mention asylum seekers. Why? It's because, of course, they're not refugees. They are looking for refugee status and claiming to be refugees, but many of them, as we know—60% at least, via our own IRB—are considered to be not genuine.

With this obligation in mind, surely it's Canada's right as a sovereign country to designate countries as safe for refugees. There is no point at all in not designating all of the European Union countries as safe for refugees. They have full protection through the European human rights tribunals.

The United States is a safe country for refugees. Its acceptance rate is very high, and it has have professional judges deciding these cases. Our safe country agreements should be reinforced there. The United States was not keen to sign that agreement and made sure that if anyone had even a distant relative in Canada, if they appeared at the border, the safe third country provision would not apply. The U.S. authorities knew that 50%, 60%, maybe 80% of the people coming from the United States were coming through the States into Canada to join relatives here.

Such a designation would not be in violation of the UN convention in any way. All of the European countries have safe countries and safe third country provisions. They all do, otherwise they wouldn't be able to cope with the volumes of people pouring into their countries. Germany in 1993 had 493,000 asylum seekers. The following year they changed their constitution to deal with it. We still haven't been able to make any changes in our law, in any attempt to reform it.

I support the bill that is now before Parliament, because in my view it is a modest attempt to make some changes. I don't think it's going to work, quite frankly, because we still don't thoroughly screen out people coming from Europe or the United States. They'll be allowed to make a claim. They don't have the right to appeal to the new appeals section of the board, but they do have the right to seek leave to appeal to the Federal Court.

The timeframes that have been set for them, I think, will be challenged by the lawyers and perhaps by the charter. I don't think they're going to work.

[The Chair, Conservative, David Tilson]

Mr. Bissett, you have one more minute.

[James Bissett]

Okay.

I think there are some good parts to this bill that have to be supported, but my concern is that it doesn't go far enough. This new bill will not work unless it has a system for screening out, at the front end, those people who obviously are not refugees and who do not have the right to claim because they have protection in the country they're coming from.

If you don't send refugees back literally within 48 hours, or asylum seekers within 48 hours, you've got them for good. That's why we've become the target of choice for human smuggling. The smugglers can guarantee that even if you're turned down at the board, you're in. We send very few back.

We're detaining more now, as Madame Nakache has said, and I agree with a great deal of what she said. We should have detention quarters rather than jails to detain these people. But if you don't send them back quickly, you're doomed.

As a final thing, in 1999 there was an excellent report by Lucienne Robillard, the then the minister, called Not Just Numbers. I think the immigration department would do your committee a great service if they could take the chapters from that report dealing with protection and distribute them to the members of the committee. Had we followed that report's recommendations, we would have been in the forefront of countries and a leader in helping refugees around the world, and in dealing fairly, as well, with asylum seekers.

Thank you.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Bissett.

Ms. James has up to seven minutes.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you, Mr. Chair.

Thank you to our two guests.

I'm going to go directly to my questions, and I'm going to direct my first set of questions to Mr. Bissett.

Mr. Bissett, are you aware that 25% of all refugee claimants are coming from the European Union and that of that 25%, 95% of the claims are either abandoned, withdrawn, or actually rejected. It takes up to two years, as you indicated, for the claim to be processed. Did you also know that it's costing taxpayers $170 million per year for these particular claims?

[James Bissett]

Yes, I am. I don't agree with the cost. I did my own calculations, and it's fairly simple arithmetic.

In 2008, there was a backlog of 60,000 asylum seekers here. The department tells us that it costs $50,000 a year to look after one failed asylum seeker. If you have 60,000, times 60%, times 50,000, you have $1.1 billion. That's just the failed asylum seekers. The real costs come in when they are released and still have to be looked after. My calculation is that it's roughly $2 billion to $3 billion annually for our asylum system.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you.

Actually, we had someone from the Canadian Taxpayers Federation here in another session, and he also quoted the $50,000 per claim. That's interesting that you've also used that same figure.

Why do you think the people who are actually claiming to be refugees are going through the process and then withdrawing their own claims?

[James Bissett]

The European figures have been magnified somewhat by the movement of Roma people from the Czech Republic and Hungary. That started back in 1994, actually, and it has continued ever since. Thousands, I would guess close to 15,000 Roma people, have arrived in Canada. A very high percentage of them don't bother appearing before the refugee board, because their purpose in coming here is not to stay permanently; it's to stay and collect welfare and housing and enjoy the benefits of a welfare state that pays them much more than being on welfare in Hungary.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you.

You know what? That's one of the number complaints about our current system by people in my constituency. Interestingly enough, we had a counsellor from the Embassy of Hungary here in another session, and he stated that one of the reasons people from his country are this is that it's basically easy money here in Canada. I'm very upset about that and I know that my constituents are as well.

Do you think taxpayers should put up with this? Do you think taxpayers should be responsible for footing this bill?

[James Bissett]

Taxpayers should be very concerned about it, but taxpayers assume, as they do, and probably just as well, that the government is acting in their interest. Refugee policy is not something the average Canadians think about or are concerned about. They make the assumption that the government's acting in their best interest. The refugee board is not very transparent. It's not easy to get figures and facts, even if you are interested. You have to do a lot of digging and research.

So, yes, I think Canadian taxpayers should be very much concerned.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you.

Part of this bill has to do with designating safe countries, based on quantitative and qualitative measures. You mentioned safe third countries in your introductory remarks.

We actually have an agreement with a safe third country, the United States. Do you think the measures in this bill go far enough in designating safe countries or should we implement more safe third countries agreements? I know that you touched briefly on it. I just wanted to know your opinion on that, if you could expand, please.

[James Bissett]

Yes.

I think the safe third country agreement signed with the Americans was deeply flawed. The Americans know as much about our refugee policy as we do. They were aware that if they had a safe third country agreement, they would get stuck with thousands of people who had relatives in Canada who could get into the States easily, because they didn't need a visa. These people could up to the border at Lacolle, in Quebec, and walk in to join their relatives. So they insisted that there were a lot of exceptions in that agreement.

To answer your question, of course we should have safe third and safe country agreements with all of the western European countries and the United States and Australia, and some of the European countries that are not members of the European community, such as Sweden and Norway. We get asylum seekers from those countries. Last year, asylum seekers from 180 different countries came in. Not all of them, and in fact very few of them, come in by boat, which gets a bit of publicity. They're coming in every day.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you very much.

I heard you touch on the difference between asylum seeker and an actual legitimate, bona fide refugee. We heard that from other witnesses in the testimony from past days. They talk about refugees being detained. But one of the reasons we need to do that, especially with mass arrivals, is that they come without documentation; sometimes it's thrown overboard and sometimes it's false. You cannot believe that anyone in Canada would expect that someone who has come here without any proper identification will just be released. I'm glad you differentiated between asylum seeker and refugee.

The largest part of this bill actually deals with helping bona fide refugees get processed more quickly in Canada. I think that point has been overlooked a fair amount in this committee. A lot of the witnesses focus on the human smuggling aspect, which represents a very small percentage of the refugees coming into Canada, so I'm glad you did touch base on that.

Going back to the issue with Hungary and countries like that, Hungary obviously is part of the European Union. People there have 26 other countries they can choose before coming to Canada. If you were being persecuted in your country, would you not flee to the most convenient, quickest, safest place to go, or would you choose Canada simply because it's easy money?

[James Bissett]

In the case of the Roma people in eastern Europe, I've served in the Balkans in eastern Europe, which has a large Roma population. Clearly they are being discriminated against, but discrimination is not persecution. If you start considering everybody who is discriminated against in their own country as refugees, you're in very serious trouble. There are 20 million untouchables in India. They're discriminated against. The only reason they're not coming here and applying before the board is that they don't have the money.

The Roma people have Roma members of Parliament in Hungary, and they have Roma members of the European Parliament. The laws in Hungary and the Czech Republic are as strong as ours, and they're protected by the human rights conventions of the European community. They're not coming here because they're refugees. They're coming here because in Hungary they get the rough equivalent of $500 a month for welfare. They can barely live on that, but it gets them by because in Hungary it's not bad. But they get here and they live very well indeed.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Bissett.

Ms. Sims.

[Jinny Sims, NDP, Newton—North Delta, BC]

Thank you very much.

Yesterday we heard some numbers being thrown around about the processing of the Roma and the kind of impact they're having, and so we have asked our analysts to provide the whole committee with some data so we're actually talking about the facts rather than numbers that seem to change quite frequently.

One of the other things, as you are both aware, is that we have Bill C-11, which was agreed to by all parties. It hasn't been fully implemented. In Bill C-11 there is a provision to detain someone. Obviously our current system allows us to detain someone until identification takes place. Even under the current system, we have this huge shortage of detention spaces and, from the picture you and many others have painted over the last few days, some of the conditions in these detention places, prisons, are not those where we would want to have people housed, especially asylum seekers who are coming from very dangerous areas. There is a cost to the taxpayer.

Could you expand a little bit more, Ms. Nakache, on what was in the Auditor General's report and on the cost of buying space in prisons?

[Prof. Delphine Nakache]

I have many documents with me today, but not the one from the Auditor General's report. What I remember is that the overall costs of detention in a correctional facility derive from an agreement between CBSA and the provinces, with CBSA paying the provinces to keep those immigration detainees in detention. As for the overall costs, unfortunately, we really need more statistics on that. We need more readily available statistics available for anyone.

I remember asking them for that information for my report, but they said they couldn't provide me with that type of information. But in that report, for the years 2005 to 2007, the overall costs of detention in correctional facilities were higher. They were higher knowing that more than one third of immigration detainees are in correctional facilities. Actually, the cost is really much higher in correctional facilities than in detention facilities.

I would like to state one further point. I oppose Bill C-31 and came here because I really wanted to give you a specific illustration of a specific problem. I do believe that detention is not an effective deterrent against irregular immigration. I do believe that there are other ways to address your problems and issues around irregular immigration. As you said, it is also true that there are problems relating to detention in immigration facilities, but this increase in detention in correctional facilities is problematic and should really be looked at closely before we go further with the implementation of the bill.

[Jinny Sims, NDP, Newton—North Delta, BC]

As you know, Bill C-31 has built into it mandatory detention for irregular arrivals, including detention for a year. Many have said that that is unreasonable and excessive. Can you expand on that and on what international legal obligations or charter rights this might violate?

[Prof. Delphine Nakache]

To be brief, I think you are all aware of the Charkaoui decision by the Supreme Court. Clearly that decision said that detention has to be reviewed on a regular basis. In Charkaoui's case, they said that keeping someone in detention after 120 days without a review of detention was a violation of both the Canadian charter and international human rights standards.

Basically, I think the provision in the bill that makes it possible to keep someone in detention without reviewing the grounds for detention for one year will be legally challenged. If we draw from the Charkaoui decision, a case with a very particular context dealing with security certificates, we know that this particular provision in the bill will be challenged because it is both unconstitutional in relation to our Canadian charter and a violation of several human rights standards.

Just to mention two of them, one is the principle of proportionality in international law. International law does not say that detention for immigration purposes is forbidden. It just says that it has to be proportional to the objectives sought. In this particular case, it is difficult to see how we can justify one year of detention of asylum seekers without review of the grounds of detention, if the objective of detention is just for irregular arrivals. Also, there is inhuman and degrading treatment, which is a norm in international law that certainly has been translated into our Canadian charter too, under, among others, sections 7 and 9 of the Canadian charter.

[Jinny Sims, NDP, Newton—North Delta, BC]

Thank you very much.

Do I have some more time, Mr. Chair?