Thank you, and good morning, committee members.
The right to liberty is a cornerstone human right grounded in the innate human yearning for freedom. Human rights norms universally, therefore, make it clear that the state's power to take away liberty through arrest and imprisonment is and must be constrained and restricted. To ensure that the right to liberty is well protected, human rights treaties clearly lay out that anyone deprived of their liberty must first be informed of the reasons for their imprisonment and then have a prompt and effective opportunity to challenge their imprisonment before a judge or other legally authorized person.
Amnesty International's research has demonstrated that asylum seekers and other migrants the world over are particularly vulnerable to abuses of the right to liberty. In particular, it has become clear that numerous governments have resorted to locking up refugees and migrants as a means of deterring other refugees and migrants from coming. Nothing in international law recognizes that as a valid reason to take away liberty.
International law does recognize that states have the right to control their borders. There is also, of course, an obligation to ensure that individuals are not sent back to countries where they would face persecution. At the border, therefore, international law is very careful. It has recognized that only for a length of time strictly necessary may a state be justified in detaining asylum seekers to verify an individual's identity, to ensure that someone who poses a flight risk will appear for proceedings, or because someone poses a demonstrated threat to security. But there must be a timely ability for the individual to challenge the reasons for their imprisonment.
International standards recognize that the liberty rights of certain groups of migrants, such as asylum seekers and minors, must be particularly scrupulously protected. The refugee convention, for instance, lays out that the mere fact that an asylum seeker has entered a country through illegal means is not in itself valid reason for punishment. The UNHCR's guidelines on detention note that asylum seekers have often experienced considerable trauma and hardship that must be taken into account in making any decision to detain them. International law with respect to both refugee protection and the rights of children is also very clear that minors should only be imprisoned as a measure of absolute last resort.
Bill C-31 contravenes these universally established norms protecting the fundamental right to liberty. Individuals are not detained for any of the recognized grounds for detaining migrants, such as verifying identity or dealing with flight risks or security threats, all of which are already well established in Canadian law. The reason they lose their liberty is instead the mere fact that they have entered Canada as part of a group of individuals designated by the minister to be an irregular arrival. It has nothing to do with the individual's own circumstances. It makes no difference whether they have a plethora of valid identity documents or a collection of forgeries, whether they are guaranteed to show up for future proceedings or almost certain to go underground, or whether they pose an obvious and grave threat to national security or are a paragon of virtue. Their arrest and imprisonment are automatic, solely on the grounds of how they arrived. There's no exception for individuals who make refugee claims. There's no exception for individuals who have experienced torture, rape, or other human rights violations. There is no exception for minors over the age of 16.
The problems with this new detention regime do not end with the grounds for arrest and imprisonment. They extend to the crucial internationally mandated requirement that individuals who are locked up must have meaningful and regular access to a judge or other authorized person to challenge the reasons for their arrest and seek their release. Under Bill C-31 they do not. The immigration division is to review the reasons for their continued detention on the expiry of 12 months after they have been taken into detention, and “may not do so before the expiry of that period”.
Arbitrary mandated detention without timely review violates Canada's international obligations. UN-level human rights bodies have made this clear. The UN Committee Against Torture, commenting on similar mandatory detention provisions in Australia, called for it to be abolished. Notably, that same committee will be reviewing Canada's human rights record later this month, and this issue is in front of them.
Last month the UN Committee on the Elimination of Racial Discrimination called on Canada not to go ahead with mandatory detention provisions. Those provisions should be withdrawn. Canada rightly criticizes arbitrary detention in other countries. We cannot do so credibly if we legislate it ourselves.
The safe country of origin concept is also one that Amnesty is concerned about. We're concerned that it is not workable and cannot be applied in a principled manner. We know. Human rights research and reporting are things we have been doing for over half a century. We grapple with this all the time.
Amnesty International is asked to do exactly this all the time: to rank countries, to compare countries, to measure countries from one year to the next. We're asked to give a statistical measure summing up a country's human rights record, and we do not do so for several reasons, but very pragmatically we do not do so because there is no way to do it objectively and accurately. There is no way to draw the line between countries that are safe and countries that are unsafe when it comes to human rights.
How does one compare a country that has widespread torture but generous access to education with a country that has no torture but draconian laws that limit access to education for women and minorities? How much torture, how much restricted education, just how much and of what would it take for a country to move over the line from safe to unsafe or from unsafe to safe? It cannot be done in a way that doesn't in the end involve subjective and arbitrary line drawing, and when it comes down to people's lives, rights, and freedom, subjective and arbitrary are not acceptable. There is too much risk of countries being categorized as safe, therefore, because of irrelevant trade and foreign policy considerations, and in that regard we were troubled to see that an earlier proposal for an expert advisory committee in this area is no longer on the table.