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Evidence of meeting #40 for Citizenship and Immigration in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was c-31.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Catherine Dauvergne  Canada Research Chair in Migration Law, University of British Columbia, Faculty of Law, As an Individual
Sharryn Aiken  Associate Professor, Faculty of Law, Queen's University, As an Individual
Kelsey Angeley  Student, B. Refuge, McGill University
Karina Fortier  Student, B. Refuge, McGill University
Alex Neve  Secretary General, Amnesty International Canada, Amnesty International
Béatrice Vaugrante  Executive Director, Amnesty International Canada Francophone, Amnesty International
Christoph Ehrentraut  Counselor, European Harmonization Unit, Federal Government of Germany
Excellency Bernhard Brinkmann  Ambassador, Delegation of the European Union to Canada
Anja Klabundt  Counsellor, of European Harmonization Unit, Ministry of the Interior, Federal Government of Germany
Roland Brumberg  Counselor of Unit Immigration Law, Federal Government of Germany
Ioana Patrascu  Legal Officer, Directorate General, Home Affairs, Asylum Unit, European Commission
Angela Martini  Policy Officer, Directorate General, Home Affairs, Border Management and Return Policy Unit, European Commission

9:55 a.m.

Conservative

The Chair Conservative David Tilson

Well, the young spoke very well this morning. Thank you very much.

Mr. Neve.

9:55 a.m.

Alex Neve Secretary General, Amnesty International Canada, Amnesty International

Actually, Madame Vaugrante will begin for us. Thank you.

9:55 a.m.

Béatrice Vaugrante Executive Director, Amnesty International Canada Francophone, Amnesty International

Good morning, everyone. I would like to thank the committee for giving Amnesty International an opportunity to present its views on Bill C-31.

Amnesty International has analyzed this bill from the perspective of the following three points. First is our expertise in the area of compliance or non-compliance with international human rights law and Canada's commitment in that regard. There is also our experience. We are often asked to protect the rights of asylum seekers in Canada and we intervene when we consider it to be necessary. And there is our commitment, at the global level, to protecting the rights of people who immigrate and are trying to flee fear and want, as the Universal Declaration of Human Rights says, at whatever cost it may be to their families.

To begin with, we acknowledge that the process for accepting refugee claimants is difficult and complex, and will certainly always have its imperfections and inconsistencies. It calls for an ongoing process of change and reform. Amnesty International agrees that it is the responsibility of governments to guarantee the integrity of any refugee determination system. Those changes and reforms, which are certainly designed to achieve greater effectiveness and are concerned with abuses, must nonetheless always be based on respect for the rights of claimants.

Amnesty International is concerned. Bill C-31, which is being considered today, violates Canada's obligations under international law and violates the Canadian Charter of Rights and Freedoms. We will start by identifying the issue of discrimination, which we are disappointed to see can be found in several provisions of the bill. All refugee claimants should be treated fairly. The discrimination is based not only on manner of arrival in Canada, but also on country of origin.

My colleague, Alex, will come back to three general provisions of the bill that would, if they are implemented, generate serious violations of international laws relating to protection of refugee claimants, to human rights and to the Canadian Charter of Rights and Freedoms.

The first provision talks about making it mandatory for designated foreign nationals to be imprisoned with no review of the grounds of detention possible. The minister may decide that a person is a designated foreign national if the minister believes the person used human smugglers to enter Canada. The second provision makes it impossible for designated foreign nationals to appeal an unfavourable determination regarding their refugee status. And the third provision talks about identifying countries of origin as safe solely by decision of the Minister of Citizenship, Immigration and Multiculturalism.

The following points are also of concern to us: the fact that access to permanent residence status is barred for five years, which prevents family reunification; the times allowed, which are much too short and unfair; and the unfairness and impossible choices that exist between the refugee protection process and the humanitarian reasons process.

Amnesty International has nine recommendations to ensure that, at a minimum, this bill meets Canada's international obligations in relation to human rights. What we are talking about are obligations that Canada itself helped create and develop.

I am going to let Alex speak to the next three points.

10 a.m.

Secretary General, Amnesty International Canada, Amnesty International

Alex Neve

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.

10:05 a.m.

Conservative

The Chair Conservative David Tilson

Perhaps you could conclude, Mr. Neve.

10:05 a.m.

Secretary General, Amnesty International Canada, Amnesty International

Alex Neve

Okay.

The last point I want to make is a point about appeals. For years the lack of an appeal on merits has been the notable shortcoming in Canada's refugee system. We welcomed, therefore, the inclusion in Bill C-31 of establishing the Refugee Appeal Division. What is deeply troubling, though, is the discrimination in terms of who gets access to an appeal, most notably those who have arrived as part of an irregular arrival or those coming from designated countries of origin.

Discrimination in something so fundamental as access to justice contravenes Canada's international human rights obligations. An appeal hearing is not superfluous; it is essential, and this should not be part of the bill.

Thank you.

10:05 a.m.

Conservative

The Chair Conservative David Tilson

We have to move on, sir. Thank you very much, Mr. Neve.

Mr. Weston.

10:05 a.m.

Conservative

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

Thanks, Chair.

First let me just say how proud I am to be a Canadian today. Your testimony reminds me of where I was as an international relations student, not long ago, it seems, in my mind, and, by the way, it won't be 10 years before you're members of Parliament. You don't need to wait that long. Thank you for being here.

Amnesty International I've supported personally. My family also has, perhaps because of Charlie Pley, my law school classmate, who was very involved in Amnesty in Ontario. Again, I'm proud that you're here today.

However, I want to say that while we rally around the same conclusions, that as Canadians we want to extend compassion to people who are in these unacceptable circumstances, my interpretation of the bill differs from yours in some ways. One of the basic issues I have is that I think it's also a human rights violation for us to keep people waiting for over 1,000 days, on average, the way we currently do, to process them, and I believe we need to do that faster. In this difficult position of being decision-makers in government, we have to make some decisions, and it's inevitable that there will be individual cases and problems with the decisions we make.

Let me ask you this first. If you understood that a large percentage of claims from certain countries—and I'm referring to the EU countries—were being abandoned or withdrawn, if you knew that people who come in from those countries were occupying a large amount of our financial resources—and Kelsey referred to financial usage—and you knew that they were using a lot of the processing time, which is therefore delaying the processing time for people who ultimately, we know, are refugees, wouldn't that in itself be something we would have to tackle? The percentages are very large. We're learning that about 90% of claims from Hungary weren't withdrawn, so there is where the bill moves to designating so-called safe countries.

Let me just throw in one more thing. Don't believe for a minute that the minister can totally, arbitrarily, and capriciously decide which are safe countries, because our Federal Court will require him to be accountable vis-à-vis certain criteria. The criteria, by the way, are laid out in the bill, criteria dealing with, for instance, countries where the numbers of claims are withdrawn or abandoned. So he has to be guided by that, and not arbitrarily and capriciously just say what is a safe country.

Let me get a response from Amnesty.

I would like Ms. Angeley and Ms. Fortier to answer as well.

10:10 a.m.

Secretary General, Amnesty International Canada, Amnesty International

Alex Neve

Thank you very much. I certainly appreciate learning of your support for Amnesty International.

Absolutely, we agree that speedy, expeditious processing of refugee claims is not just an important government objective, it's an important objective for refugees themselves. Obviously they want their fate to be resolved. They want to be able to move on with rebuilding lives, reunite with family, and most importantly have that critical psychosocial sense of safety. At the same time, we have to be certain that we are not doing so in ways that may set unrealistic, unfair timelines that make it very difficult or even impossible for people to adequately prepare or present their cases. We also have to make sure that at the same time we're moving towards expeditiousness, we're not adopting policies that contravene key international human rights standards, such as the provisions I outlined earlier that are of concern to Amnesty International around arbitrary detention.

With respect to countries of origin—

10:10 a.m.

Conservative

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

Let me just interrupt quickly. You geared all of your concerns about arbitrary detention as if it's punishment, but the specific expressed objective is to identify people so that we know that they are not security risks, not to punish them. That's clearly one of the objectives of the bill. That's why I think this can survive scrutiny by the courts.

But I interrupted you.

10:10 a.m.

Secretary General, Amnesty International Canada, Amnesty International

Alex Neve

We already do have provisions in Canadian law that allow for detention for the purposes of verifying identity. This new approach of imprisoning an entire group simply on the basis of their group identify and their means of arrival is something very different, with respect.

10:10 a.m.

Conservative

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

It's less than 1% of all refugee claimants, by the way, who would be in that category.

Ms. Angeley or Ms. Fortier, do you have anything to add?

10:10 a.m.

Student, B. Refuge, McGill University

Kelsey Angeley

I appreciate your comments, and it's true the backlog is unacceptable.

I made a friend in my first year who was a refugee claimant, who only just recently, last month, received her hearing. During that time I finished a university degree. I think in matters of expeditiousness it's a trade-off between speediness and living up to Canada's reputation as a humanitarian state.

Before designating a list of safe countries, there are other measures we can take. For example, the IRB is currently only 80% full. We can fill the rest of those appointments. We can listen to refugee claims on a case readiness basis.

And certainly we and our peers are concerned with the elimination of the expert panel. That seemed a nice check and a guarantee that if there is a list of safe countries, it would be done in a fair manner.

10:10 a.m.

Conservative

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

The minister's ideal here is to expedite the process, not to become arbitrary or capricious. He has to be guided by certain criteria. For me, we're insulated from some of the concerns that you raised.

Let me add one thing. I think we would all probably give credence to the UNHCR, which has clearly recognized the validity of providing expedited processing for refugee claimants from designated countries of origin. In fact, former UN High Commissioner António Guterres has said that there are indeed safe countries of origin and there are indeed countries in which there is a presumption that refugee claims would probably not be as strong as in other countries.

Do you think that's correct, Béatrice or Alex?

10:15 a.m.

Secretary General, Amnesty International Canada, Amnesty International

Alex Neve

I think there's a big difference between a notion of expediting claims on the basis of country of origin and denying access to something as fundamental as an appeal hearing in something as consequential as a refugee claim. I think the high commissioner's comments were dealing with timelines and speeding up processing. Of course, that's the compromise that was reached earlier in the Balanced Refugee Reform Act, using country of origin lists as a means for expediting. Amnesty International does still have concerns about the very concept, and I think we speak authoritatively as an organization that researches, documents, and reports on human rights violations all the time, as to the real difficulties in coming up with country of origin lists that are reliable. But at a minimum, the Balanced Refugee Reform Act took an approach that wasn't about something as fundamental as denying access to an appeal hearing.

10:15 a.m.

Conservative

The Chair Conservative David Tilson

Thank you, sir.

I'm sorry, Mr. Weston, we have to move on.

Madame Groguhé.

May 7th, 2012 / 10:15 a.m.

NDP

Sadia Groguhé NDP Saint-Lambert, QC

Thank you, Mr. Chair.

I would like to thank our witnesses for being here this morning.

Some of the witnesses who have appeared here have talked to us about the importance of having a speedy system, but they have also said, as you have stressed this morning, that it must be based on respect for fundamental rights and humane, universal justice. In our opinion, these are really key points that will have to be taken into account in relation to this bill.

I have one question regarding the country of origin designation process. Bill C-31 amends both the country of origin designation process and the criteria for making that designation that are set out in the Balanced Refugee Reform Act. Could you comment on the new process that is proposed for designating countries of origin?

10:15 a.m.

Executive Director, Amnesty International Canada Francophone, Amnesty International

Béatrice Vaugrante

With pleasure.

Amnesty International does have serious concerns about the possibility of an entire country being designated as safe. First, the situation as regards human rights violations within a country can change very quickly. We need only think of Kenya. We thought things were going very well, but all of a sudden, a wave of violence washed over the country.

As well, human rights violations may be slow to reach us, even with all the means of communication available to us, and sometimes it is the refugees who tell us about them. It may be that a country presents a relatively positive picture in terms of various aspects of human rights but has serious problems in a particular region. For example, there could be an issue in relation to homosexuals. There may also be violence against women. If a country like that were designated as a safe country, it would become impossible to put a finger on problems of that nature.

As well, there is no way to objectively designate a country as safe. The process will end up being subjective. We have concerns about that subjectivity and how it is going to be measured. We are also concerned, in relation to designation of safe countries, that interests other than human rights may end up being taken into account: for example, trade or political interests.

10:15 a.m.

NDP

Sadia Groguhé NDP Saint-Lambert, QC

Thank you.

Karina and Kelsey, do you think this bill is going to solve the problem of human smugglers, in any way, or was it designed to penalize refugees? Do you think that this bill does anything at all to resolve the issue of human smugglers and human trafficking?

10:20 a.m.

Student, B. Refuge, McGill University

Karina Fortier

I have no answer to that question.

10:20 a.m.

NDP

Sadia Groguhé NDP Saint-Lambert, QC

If not, Mr. Neve or...

10:20 a.m.

Student, B. Refuge, McGill University

Kelsey Angeley

I think the measures the bill proposes do not punish human traffickers. They punish the refugees who pay for human trafficking services.

Actually, in the committee meeting on April 26, the Minister of Citizenship and Immigration talked about deterring passengers as the most important component of this bill. I just don't think that will work. People who pay for the services of human smugglers are motivated by desperation and fear. To deter them assumes a level of rationality, and fear and desperation are irrational. Furthermore, many of the refugees we work with do not know anything about the system before they arrive here. The measures in place in this bill assume that there are networks for distributing information abroad and that people are aware of the punitive measures before they come to Canada, which, in reality, is not the case.

10:20 a.m.

NDP

Sadia Groguhé NDP Saint-Lambert, QC

Thank you.

Mr. Neve, some witnesses have told us that the rules relating to irregular arrivals, including detention for one year, were unreasonable and excessive. Could you give us more detail on that point and tell us what international legal obligations or what charter rights these rules infringe?

10:20 a.m.

Secretary General, Amnesty International Canada, Amnesty International

Alex Neve

Thank you.

There are many international legal provisions at stake when we look at the detention regime here. It starts with the Universal Declaration of Human Rights, which guarantees against arbitrary arrest and detention, and the need for regular, timely access to an ability to challenge the reasons for detention.

It's repeated in the International Covenant on Civil and Political Rights, which Canada ratified in 1976.

There are provisions in the Convention on the Rights of the Child that deal in particular with the liberty rights of children and the importance of ensuring that they are not subject to arbitrary arrest. In fact, their detention is only an option of absolute last resort.

There are also numerous provisions in refugee law. The hard-law provisions in the refugee convention, for instance, make it clear that simply because a refugee claimant arrives in a country through illegal means, which is a very normal and necessary step for many refugee claimants, that is not in itself grounds to punish him or her. Obviously, imprisonment constitutes punishment.

There are also guidelines and other documents from the UNHCR that make it very clear that detaining refugee claimants should not be a normal course and that great care should be taken, particularly with respect to refugees who are vulnerable: children and survivors of rape, sexual violence, and torture. There are no provisions in this legislation for that.

10:20 a.m.

NDP

Sadia Groguhé NDP Saint-Lambert, QC

In view of everything you have addressed, do you think Canada is still a country that is in compliance with the conventions and the charters of rights and freedoms?