Citizenship and Immigration Committee on May 7th, 2012

[Lorne Waldman]

The only comment I'll make on the bias is that I'm the author of several books on immigration and refugee law, which are often cited by the Federal Court. I've been called a scholar by judges of the Federal Court, so I think that's a fairly fulsome answer to suggestions of bias. I won't respond to the other aspect of that.

What would be a fair process? A fair process would be one that requires a timely decision. I have no difficulty with timeframes, but the timeframes have to be reasonable regardless of whether the person is designated or not. The problem with the current process is not that it's problematic; it's that it wasn't sufficiently resourced to do the job it had to do in the time it had before it.

I'll give you an example, if you want to see an irony. The current IRPA says that a Federal Court judge has to review an application for leave, of any immigration decision, render a decision, and the hearing has to be held within 90 days.

Because they don't have enough Federal Court judges to decide the leave, what happens is that a judge will look at the decision, but in order to comply with the law, he will then wait, and the formal order won't be issued until there's a slot. There are not enough Federal Court judges to hear the leave.

So they get around the law by deciding the matter but not formally issuing the order. One can imagine similar scenarios beginning to occur in the refugee determination process.

Depending on the volume of claims, if there are enough people to decide the claims, then claims will get decided in a timely fashion. It doesn't matter what the timeframes are. Refugees would love to have their hearings held within two or three months, as that would allow them to have sufficient time to retain counsel. My clients suffer greatly by having to wait for years before they get a positive determination. There's absolutely no dispute about that. The reason this happened was that the system wasn't properly resourced.

There's no problem with the current system if it's properly resourced. Fundamentally there aren't any significant changes. The big change is that instead of having order in council appointees we're having public servants. The same decision-maker, the same division, is still going to be making decisions. There's going to be the same basic form. Instead of having 28 days, it's going to be filed in 15.

The question really is, regardless of what the legislation says, will there be sufficient resources to allow for a timely decision? I mean, to decree 30 days, 60 days, 90 days, 120 days won't make any difference; if there aren't enough resources, the refugee board will have to find ways to deal with the caseload—

[The Chair, Conservative, David Tilson]

Thank you, Mr. Waldman.

Mr. Leung.

[Chungsen Leung, Conservative, Willowdale, ON]

On the timely hearing of these immigration cases, the former United Nations High Commissioner for Refugees, António Guterres, indicated, and I'm paraphrasing what he said, that there are indeed safe countries of origin, and indeed there are countries where the refugee claimants do not have as strong a case as the others. So therefore it seems as if the UNHCR has reason to ask for these cases to be accelerated.

Now, if that is the case, and following along the comment that was just made, wouldn't one of the processes we would follow be based on designated countries of origin? There needs to be a class of countries that we need to act on expeditiously.

[Lorne Waldman]

We in principle don't support it. The reason we don't support it is that my experience is that many countries that appear to be democratic are not necessarily democratic, or may not be democratic for a subcategory of individuals. The best case is Mexico. Some of the cases I've seen out of Mexico are shocking and appalling, and you can see some of the recent decisions of the Federal Court that reflect that. Mexico has huge issues in terms of state protection. They have a huge drug trafficking problem, and it's created major problems for individuals.

You referenced the UN. I understand the UNHCR supported the idea of a designated country list as it was drafted in Bill C-11, which meant that there would be expedited hearings for people from designated countries. They certainly didn't support the idea of removal of an appeal.

We agreed, as a compromise, to support a designated country of origin list if it meant an expedited hearing. But the problem with the current incarnation of the bill is, (a), the designated country of origin list does more than that. It removes the right of appeal, it removes the mandatory stay. And (b), the timeframes for the hearings are completely unrealistic. So you're saying you're going to give a sham of a hearing to a person who won't have enough time to properly present his case, to satisfy the constitutional guarantees.

I can tell you that we'll challenge that under the charter, because a fair hearing means a hearing that allows a person enough time to prepare a case, to present a case in a meaningful fashion, and 15 days and 30 days, in my view, isn't going to cut the mustard.

[Chungsen Leung, Conservative, Willowdale, ON]

It then appears that the UNHCR is putting a burden on the countries that are faced with human trafficking and illegal immigration, and so on, with the standard we need to be speedy, be expeditious, but at the same time they're not allowing us the tools to work with.

[Lorne Waldman]

I think there are lots of tools you can work with, and if you resource the system sufficiently....

l'll tell you something; the success or failure of this determination process isn't going to be decided here, in this room. It's going to be decided in the hearing room, and it's going to be decided based on a series of things. If the IRB can create a cadre of competent decision-makers who can make good decisions, if there are enough IRB members who make good decisions, then the system will succeed.

We'll challenge certain aspects of it, but good decision-makers will find ways to make competent and fair decisions, notwithstanding the constraints that the legislation will impose upon them.

You can create legislation, but if you don't have sufficient resources....

I can tell you, from 1976 until now, every system has failed. This is the fifth time I've been here. Every system has failed.

It's failed because of two things: not enough decision-makers and not competent decision-makers.

[Chungsen Leung, Conservative, Willowdale, ON]

I appreciate your history and perhaps tenacity in staying with this issue, but given the number of mass arrivals and irregular arrivals that we're faced with, how large a bureaucracy do you foresee? How big should our IRB be?

I mean, what kinds of resources do we need to put behind it?

[Lorne Waldman]

I don't know; the gentleman behind me could probably give you better advice in terms of numbers.

But in terms of the number of decision-makers you need, probably, if the IRB had been up to full complement all the way through the period as opposed to being very short in its complement for a long period of time, we wouldn't be faced with the huge backlogs that resulted in the two- or three-year delays in the processing of claims. You need to make sure that you have....

You know, it's not rocket science. If the average number of claims is about 25,000 and you can project how many decisions can be made by a decision-maker per week, you multiply that by 40 or 45 weeks and the number of decision-makers and you come up with a number.

It's not thousands; it's 200 or 300 decision-makers, which is what the IRB has now.

[Chungsen Leung, Conservative, Willowdale, ON]

Potentially, then, I can see this whole system being caught up in its own quagmire by refugee claimants refusing to provide the necessary information for the IRB to make those decisions.

[Lorne Waldman]

If refugee claimants don't provide the form within the time stipulated by the rules, their claims are declared abandoned. That's one of the main reasons claims are declared abandoned. It's not that the board doesn't have the recourse. If the claimants don't cooperate, they lose their right to make a claim.

[Chungsen Leung, Conservative, Willowdale, ON]

Let me turn to the issue of bad advice for people who are using the asylum route to gain entry into Canada. How do you feel about that?

People around the world are saying that Canada's system is perhaps flawed, it's easy, so therefore they will use the asylum system to get in rather than going through the regular lineup or going through the United Nations High Commissioner for Refugees camp to submit their claims.

[Lorne Waldman]

I'll give you two examples of cases where the government took initiative at different periods of time that were highly successful.

I agree with you; I see the human suffering caused by people coming into Canada, paying huge amounts of money to smugglers, to present claims that have absolutely no merit. It breaks my heart every time I see it. People end up mortgaging their houses back home in order to come, with absolutely no hope of getting into the country, and the only people who profit are the travel agents and smugglers.

One of the circumstances where that happened was in Mendoza, Argentina. There was no political situation. There was some economic chaos. Travel agents advertised and encouraged people to come to Canada. A wave of people came and made fraudulent claims.

Working with the community, with the Canadian High Commission in Buenos Aires, there was an active advertising campaign that was undertaken in Mendoza, and it was successful in stemming the tide.

I mean, for sure, I agree with you that it's a huge problem, but there are ways of dealing with it, proactive ways, that can prevent—

[The Chair, Conservative, David Tilson]

We're way over, Mr. Waldman. I have to move on.

[Lorne Waldman]

Okay.

[The Chair, Conservative, David Tilson]

Monsieur Giguère, your turn.

[Alain Giguère, NDP, Marc-Aurèle-Fortin, QC]

Thank you, Mr. Chair.

My question is for Laurette Gauthier Glasgow and has to do with clause 19.

We tried to determine the purpose behind this clause. We asked questions, but we did not get any answers. We would very much like to know what its purpose is. Take all the time you need to explain this to us. You are the perfect person to tell us just how detrimental this provision could be for those who will be subject to it, as well as how much this clause will affect them, people who have become our neighbours, who have children and who contribute to the community.

[Laurette Gauthier Glasgow]

Mr. Giguère, we do indeed share your confusion with respect to the purpose that this clause will serve. We have absolutely no idea. The current legislation includes measures to deal with fraudulent cases or misunderstandings, so it isn't necessary to add anything. We really have no clue as to why it's there. However, we can envision two possible scenarios happening.

The first involves someone who travels on their passport of origin for humanitarian reasons, which are perfectly understandable reasons in our own families. That person risks being deported and losing their status, and that risk applies retroactively. We cannot figure out why the government has done this. We cannot see what they are trying to fix with this provision.

The second case involves a large number of refugees who are in Canada legitimately and whose situations received approval from the Office of the UN High Commissioner for Refugees. The government is our partner in that respect. And now, because their country is probably more democratic, the situation changes. Take, for example, the recent cases involving individuals from Rwanda and Burma. Those refugees—who would have to return to their countries—are being prevented from receiving Canadian citizenship. They would lose their status. We are hurting our own society.

Consider the case of four young girls living in Ottawa. They arrived from Rwanda, they went to school here, continuing on to post-secondary studies, and are making significant contributions to society. They are bilingual, trilingual and even multilingual. They will surely run for office, once they have obtained their citizenship. Are we going to tell them that they cannot become Canadian citizens, because things are better in Rwanda now? That is completely unfair.

[Alain Giguère, NDP, Marc-Aurèle-Fortin, QC]

My second question is for Mr. Waldman.

We have heard from a number of witnesses, and they have all said that the timelines set out in the bill were not realistic. People can't obtain documents, such as the results of medical assessments, in so little time. What do you make of those comments? Do you think the timelines set out for making a claim are appropriate?

[Lorne Waldman]

I'll have to speak in English; my French is not up to it.

The answer is no; obviously, I've already stated my view.

One, we do want a fast, expeditious process, but it has to allow reasonable timeframes. It has to allow reasonable timeframes to prepare the initial statement form and it has to allow for reasonable timeframes for claimants to bring in corroboration.

The other alternative is this. The way the law is now, the jurisprudence says that if a claimant doesn't bring in corroborating documents, medical reports, proof of detention, proof that he attended demonstrations, the board member can draw an adverse inference. If you want to shorten the timeframes, then put into the legislation a provision that says a member cannot draw adverse inferences from lack of documentation. Then you've created a balanced system.

Right now the way it is, you're creating a situation where it would be impossible for claimants to bring in the documentation but still allowing members to draw adverse inferences from the lack of documentation. It's completely unfair.

[The Chair, Conservative, David Tilson]

Merci.

Mr. Calkins, you're our guest, and we're giving you three minutes.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

That's probably about two minutes more than I need, Mr. Chair.

All kidding aside, I am here as a guest today. It's the first time I've actually even subbed in on this particular committee. Obviously, I'm seized with the issue and I appreciate your being here.

Reverend Prentice and Reverend Gauthier Glasgow, I just want to say how much I appreciated your testimony. My grandmother was very strong in her faith as a Christian. She practised as an Anglican, and I had many occasions to visit our church in my hometown of Lacombe. She was a very interesting lady, very compassionate in her own right, but also very staunchly conservative in her views. I'm sure she would be having a similar conundrum in trying to reconcile some of the things we're discussing here today.

The question I have for you is one of where we can do the most good. From a global perspective, is it in the best interests with the limited resources that we have—and I'll get to resources with Mr. Waldman in a moment—and I've heard lectures from people on both sides of the issue, to be investing our capital and our time in a bureaucratic process here to bring a limited number of people here, and let's face it, it's a lot of people, but it's a very limited number of people who might otherwise need help throughout the world. Or, should we be using those resources to do more good, whether it's capacity building, governance building, democracy building, any of those other kinds of exercises around the world? If you could answer that, just from a 30,000-foot view, because we all want the same thing. We want to do what's right for humankind. We want to do what's in the best interest to elevate everybody's standard of living around the world.

Could you help us with that? Are those questions that you ask yourselves when you're doing this? We're spending a lot of time and effort talking about a select few people who come here to seek refugee status, and we're spending a lot of money trying to sort out this process. Is that the right thing to do, from a global perspective?

[Laurette Gauthier Glasgow]

Perhaps I could reach back to a previous hat, because I spent 37 years in government doing government policy, 25 years of which I served as a diplomat.

How do you measure the impact on one life? I've seen transformation through a variety of things. I wonder if it's an either/or or an all-of-the-above situation. It's a bouquet of things. We have international assistance. We have capacity building. We've done that in so many areas, and we have to continue to do that. The church does that as well. We're helping refugees settle here. At the same time the Primate's World Relief and Development Fund is doing that also. I was just at their board meeting in Toronto last week.

We have refugee programs in Kenya, Egypt, India, Sri Lanka, Palestine, and the Middle East region. In other words, we're helping out there and asking how we can help them potentially move from where they are and resettle to their countries of origin.

I think it's all of the above. We have to find a way to always have our arms open. I don't think we could ever find ourselves in a situation of saying that none is too many. That is something that would be a shame.

[The Chair, Conservative, David Tilson]

You're finished, Mr. Calkins. It was nice having you for three minutes.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Well, I won't be back, Mr. Chair.

[The Chair, Conservative, David Tilson]

Oh, I'm sure you'll be back to get even.

Reverend Gauthier Glasgow, it was good to see you again, and Reverend Prentice and Mr. Waldman, thank you for your contribution to the committee.

We will suspend.