Citizenship and Immigration Committee on May 7th, 2012

[Lorne Waldman, Partner, Lorne Waldman and Associates, As an Individual]

Thank you very much.

I'm here in my personal capacity, although I am the current president of the Canadian Association of Refugee Lawyers.

I should just like to state that this isn't the first time I've appeared before a committee discussing changes to the refugee procedure, nor do I think it will be the last.

[The Chair, Conservative, David Tilson]

I remember seeing you before, but I can't remember where it was.

[Lorne Waldman]

I've been before this committee, but I'm not sure if it was in this incarnation. I appeared before committees when the Liberals were in power, and when Mulroney was in power. I worked with Jim Hawkes when he was trying to design a new refugee determination process in the mid-1980s after the Baker decision.

I was a student lawyer assisting groups that were opposed to the legislation introduced by the Liberals in 1976. I appeared before the committee that debated the implementation of the Immigration and Refugee Board in 1989. I appeared again in the mid-1990s when there were changes made, and I appeared before this committee in its incarnation when the Liberals were in power and IRPA was implemented and voted on in 2002.

I should say to you that I have an historical perspective with respect to this. I'm always glad to come and discuss the refugee determination procedure, because I've been involved in representing refugees since 1974—that was my first case—and since then I have represented thousands of persons before the Immigration and Refugee Board or its predecessor, the Immigration Appeal Board.

I understand that the committee has heard a great deal from witnesses who have divergent views on this issue. I don't expect my comments will change anyone's mind, but I'm grateful for the opportunity to share a few of my concerns.

The first point I wanted to deal with was the speed of the process. I wonder if any of the members of this room have ever been at a refugee hearing. As I said, I've attended thousands. I can tell you that it is a process that is fraught with pitfalls that can trap genuine refugees.

I've heard the members here speak repeatedly about the need for an efficient process, and I agree. I see clients coming into my office who have been incredibly frustrated by the delays in the current process, I mean people who are genuine refugees who want their cases decided so that they can start the process of family reunification, something that will be hindered by some of the provisions of this bill that I'll speak to in a minute.

I agree that it is vital that we make this process more efficient, but efficiency cannot be prioritized at the expense of fairness. With all due respect to those who share the contrary position, I can assure you that this process as it's currently drafted, and given the speed with which it is expected to take place, will not result in a fair determination for many people.

Consider the consequences. The first most obvious consequence is that many of the claimants will not have counsel, either through the whole process or at least at the initial stage when they file the first form, the BAC.

What are the consequences of this? There will be omissions in the BAC and, as we all know, the initial presentation is vital, and there's a great deal of jurisprudence from the Federal Court that says that a tribunal can draw adverse inferences if there are omissions from this initial form.

The fact that refugees don't have counsel to prepare the form will undoubtedly lead to many circumstances where there will be vital omissions that could result in adverse inferences being drawn against genuine refugees.

Many claimants will not have counsel at the hearings. I was at the Canadian Bar Association meetings in Kelowna, and some of the members of the Immigration and Refugee Board were there, and I spoke to some senior people who acknowledged that they are fully expecting that the number of unrepresented claimants will increase dramatically under the new process.

I think you have to consider the impact of that. There's already jurisprudence from the Federal Court that says that, in cases of unrepresented claimants, the members who decide the cases will have to take more time to ensure that the hearings are fair. The onus will be on the member to dig out all the details that might be relevant to the claim, and, if the member fails in his duty to conduct that process, the hearings will be set aside by the higher courts.

This will result in lengthier proceedings in cases where counsel is not present. It will also result in many more negative decisions because claimants will not have had a full understanding of what is relevant. There will be many more judicial reviews in which claimants will challenge the fairness of the proceeding because they did not have counsel properly guide them at the initiation of the proceeding.

The speed that this bill envisions will produce a huge pressure on decision-makers to make rapid decisions. We know that when decision-makers are pressured into circumstances, it results in a deterioration in the quality of decisions, and will put greater pressure on the appeal process. The speed with which the appeal process is designed to take place isn't possible.

It's impossible for a person to perfect an appeal in any kind of meaningful way in the timeframe set out in the legislation, given the complexity of the issues. The original proposal was that transcripts would be available, but transcripts will not be available, and that will mean it will make it even more difficult for people to perfect their appeals.

Another important impact will be that refugees themselves will not have time to obtain corroborating documents. One of the things we're seeing more and more in decisions by refugee board members is that they draw an adverse inference when claimants don't have corroborating documents to sustain. So if a claimant says he was arrested and tortured, the member will say,“Why don't you have a medical report?” Well, claimants often can't come with these reports, because if they're fleeing their countries they can't take the documents with them, and they need to have time to obtain the corroborating documents.

This process and the speed with which it is designed to take place will make it impossible for corroborating documents to be obtained. Members will still continue to draw adverse inferences and this will result in more unfair decisions.

Another very important factor is that refugees who come from designated countries will not benefit from either a legislative stay or from an appeal. This will result in a significant increase in the number of stay applications to the Federal Court.

I can tell you, because I was at a meeting with Federal Court judges this past weekend, with the Federal Court bar and bench liaison committee in immigration matters, that the Federal Court is already bursting at the seams and is under-resourced. They're three judges short, and four judges are on sick leave. They cannot afford to have the increased work that will certainly result from this process.

There will be even more and more unfair decisions, and this will lead to more and more cases where claimants will have to seek recourse to the courts, to the minister, and to the media.

The second point I wanted to deal with is the question of detention. I've represented many of the people on the boat and I can tell you that the conditions—I went to the jail in Maple Ridge where they were detained—are shocking. I was shocked when I was there. I went into the cells and I couldn't believe these tiny cells where people were double- and triple-bunked. I'm sure other people have already told you about this. The conditions were unbelievably poor.

People who suggest that refugees are being detained in hotels are misleading the committee. It's true that in Toronto there is one converted hotel that holds about 70 people and I think it's being expanded. But the vast majority of refugees who are in detention are in detention in provincial jails where the conditions are poor to extremely poor. Many of my clients have been traumatized by the experience.

I've heard the questions that were asked by the committee before about the security needs. I can tell you that, having represented many of the claimants who came off the boats, the current legislation was more than adequate. People were detained upon arrival until they could satisfactorily prove identity. Some of my clients were held three or four months under the current legislation, until they got identity documents that satisfied the minister as to their identity. Once identity was satisfied, people could be detained if there was a reasonable suspicion. The Federal Court said that the reasonable suspicion is an extremely low threshold. Individuals who pose a danger were detained until there was a determination that they were not a danger. Indeed, there are still people who arrived on the boat who are still under detention.

Requiring mandatory detention for one year is unnecessary. It is also unconstitutional, and you've been told this many times. The Supreme Court of Canada made it clear in Charkaoui that there must be a regular review by judicial authorities of the grounds of detention or it's a violation of section 7.

To be perfectly clear, and I looked at the legislation again today and I'm more than glad to take you to the sections, the legislation as currently drafted does not provide any judicial mechanism to review a detention within the one-year period. It is true that the legislation says that a person is detained until they're found to be a convention refugee or there are other conditions. The difficulty with that is the next provision right after that says there is no detention review for a period of one year.

The problem that the refugee has is that the refugee cannot go and seek his release after he's been accepted. The only way he can be released is if the minister exercises his or her discretion, depending on who the minister is, to order the release. That's the difficulty with the bill. Why it's unconstitutional is that there is no mechanism for the refugee to review his or her detention within the one-year period. That is the provision that is inconsistent with the Supreme Court of Canada decision in Charkaoui.

There are many other issues, but the last one I want to personally address, because it's one that I see so often in my office, is the impact of designation. These are the provisions that I find particularly difficult to accept.

[The Chair, Conservative, David Tilson]

We're out of time, sir. Could you wind up, please?

[Lorne Waldman]

Okay.

The provision I wanted to comment on was denial of permanent residence for five years and the denial of a travel document. I can tell you that refugees often display serious psychological problems as a result of the torture they've suffered and as a result of family separation. To aggravate that situation further by denying refugees an opportunity for family reunification for five years, and the possibility of even going to visit their families because they can't get a travel document, is cruel and inhumane, and will have unimaginable consequences on our health care system

Those are my opening comments.

Thank you very much.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Waldman.

Mr. Menegakis.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Thank you, Mr. Chair.

Thank you to our witnesses for being here today. It was interesting to hear your comments.

We've been meeting, as you may well know, with several groups over the last little while, listening to the concerns people have either in favour or in support of certain clauses in Bill C-31. The process for us here is that in due course we'll be reviewing the bill line by line and taking into consideration this democratic input that we have from our witnesses, so your testimony is very important to us. So thank you again for being here.

I want to address the issue of a legitimate refugee who actually really needs the help, because I think that is a common element for all of us. We all want that. We all want to be able to service as quickly as possible the person who is coming here, who was persecuted, whose life was in danger, possibly facing torture or death in their own country. We're finding that a lot of these folks who need help are tied up in a system behind a group that is quite often not a legitimate refugee group, tying up the system.

To process a claim today can go as long as 1,038 days. With the measures in this proposed bill, we can reduce that to 45 days for claimants from designated countries, and 216 days for all other claimants.

One phenomena we're seeing is that we're getting, from one part of the world in particular, 95% of the claimants either abandoning or withdrawing...or their claim is flat-out rejected.

Now, that 95%, apart from the fact that it's costing about $170 million a year—let's just not put a value, because we're talking about human life here—is really tying up the people who legitimately can come into the country.

Can I get your comments on why people would voluntarily abandon or withdraw their claim and return to a country in which they originally claimed they were being persecuted?

[Lorne Waldman]

Undoubtedly there are some people who come to Canada and abuse the system. That's always been a reality that we've had to confront. My experience, however, is that those are a small minority of the people who make claims.

I completely agree with you that the current system as it's operating has created a huge amount of hardship for genuine claimants. I completely agree with you that there is a need for reform, which is precisely why, during the minority government, I spent countless hours, losing sleep, working with the opposition parties, to try to come up with what we thought was a reasonable, balanced approach to expediting the process and allowing for mechanisms to deal with bogus claims more quickly.

My difficulty with the approach in this legislation is twofold. First, the timeframes are completely unrealistic, and, if applied, will result in a large number of cases being rejected. The concept of designated countries is one that I don't personally support, but the difficulty I have with the way it is in the current legislation is that it's completely left to the discretion of the minister.

I know, for example, that—

[Costas Menegakis, Conservative, Richmond Hill, ON]

I'm going to stop you, because I have limited time. You answered my question. I got it from your presentation that you have issues with the timeframes and so forth. I noted them, so let's not take more time discussing the very same thing.

I wonder if I can get some comment from the reverends who are here.

[Laurette Gauthier Glasgow]

First of all, we said in our presentation very clearly that we welcome measures that will facilitate and streamline a process. I think Mr. Waldman's comment that there is a balance between efficiency and fairness is important to bear in mind.

You asked why people would go back to their countries of origin. We have a few cases, and we've submitted them to the clerk. We've changed the names. In a number of cases, because of the difficulty of obtaining travel documents, refugees can find themselves in situations of intense pressure—family pressures, where a family member has been left behind, or, in some of these cases, where they've actually been kidnapped by other factions or other family members. In order to be able to be close to them, they have had to use their passport of origin.

You know, I can't imagine what it's like. I know what it's like to be a mother, and I can't imagine what it would be like to be separated from a minor child. In one case, where a woman did return to Pakistan using her Afghan passport, she managed to get her son back, and after five months of.... He was becoming really quite depressed about no action. He finally was able to come into Canada. He has been sponsored by the original church group and he's now enrolled in high school and working part time. He'll be able to apply for citizenship in 2014.

The irony is that this poor woman is now in jeopardy because of clause 19. I think you will understand the unfairness of that situation.

[Costas Menegakis, Conservative, Richmond Hill, ON]

The chair informs me I have less than a minute left.

Here is what we're finding. We're finding that human smuggling operations are very profitable and they're getting very, very sophisticated in using and abusing the system, promising things to people that they just can't deliver.

We had the case of the two ships that came in, in Vancouver. Forty-one of those people were found to be security risks or had perpetrated war crimes in their own countries. So we're very concerned about who we allow into Canadian society, in our neighbourhoods, and around our families.

I just thought I'd make that point. I believe I've used up my time, so thank you very much for responding to my questions.

[The Chair, Conservative, David Tilson]

Ms. Sims.

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

Thank you very much.

I want to thank the three of you for coming to present before the committee.

As you know, we have our Bill C-11, and Bill C-11 hasn't been fully implemented yet. As a matter of fact, we've only implemented a very short part of it. So without seeing if the great Canadian compromise actually will resolve issues, we're now into the process of rewriting a legislation again.

My first question is for one of you, Reverends. Are you aware that as well as the threat of someone being sent back, losing their refugee status, or their PDR, if they travel back...or if in the country of their origin things improve, that exists, but also for the first five years they would not have travel documents, nor could they apply for family reunification? Then, once they apply at the end of the five years, you know we don't have a speedy system. It's like mercury after that as well.

So what kind of impact would that have on families that you have been dealing with? You have some experience of having that kind of a separation.

[William Prentice]

You know, my family came to Canada a number of generations ago. They were economic refugees from Europe. In terms of the reunification of the family, one member got here and then facilitated the arrival of others.

Family reunification, helping families come together and contribute to Canadian society, has always been an important part of our system, of the way we do business as Canadians. So provisions that will stand in the way for the folks that we support through our refugee programs...not just us within the diocese of Ottawa but for all the sponsorship agreement-holders in Canada, although we're not speaking for them. Provisions that stand in the way of family reunification, of helping a mother connect with her son who was kidnapped, escaped from his kidnapper, got back to a safe country, or a safer country, and then through family reunification was brought here to Canada—things that stand in the way, like that, I can't see it, ma'am. I really can't.

We need to create a system that will allow families to be together; allow legitimate refugees who have been screened overseas by Immigration Canada to find their way to Canada in a timely manner; and allow their families to be reunified after some of the terrible, terrible traumas—that I can't even imagine—that they've experienced.

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

Thank you very much.

[Laurette Gauthier Glasgow]

Perhaps I could add one element—namely, I suspect that most members of Parliament would find their workload in their constituency offices decrease considerably as a result.

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

Thank you very much. I would concur.

This question is for you, Mr. Waldman. In this legislation, as you know, the minister has this total power—the new centralized power system—of designating irregular arrivals retroactively.

We're not talking about from the day the legislation comes into effect. We're talking about going back to March 31, 2009, which would include people we have already processed through the Ocean Lady and the Sun Sea.

Retroactivity punishment is actually prohibited in the charter with respect to the Criminal Code. Do you think this clause provokes a legal challenge, and can you elaborate on this for us common folk?

[Lorne Waldman]

I highlighted one area where I think there are serious constitutional issues, which is the detention. It's not the only area. I expect there will be constitutional challenges to the provisions denying family reunification because of the impact it will have on refugees who are in Canada.

On the provision you are talking about, I have clients accepted as refugees who have applied for permanent residence. Unless they get permanent residence before the bill comes into effect, they will then undoubtedly be retroactively designated—I'm talking about people on the boats—and then won't be able to apply for permanent residence for five years, or their applications will be suspended.

I expect that the concept of retroactivity will be one of the things we will be challenging once the bill is implemented. It is unfortunate that the government has chosen to bring forward a bill that I think, and many other experts think, has so many serious constitutional flaws. Undoubtedly, we're going to be spending years in the courts as these matters get adjudicated, instead of doing what we should be doing, which is protecting refugees.

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

I have a scenario that I want to run by you. A refugee claimant is refused by the refugee protection division. He is not entitled to an appeal to the refugee appeals division and there is no automatic suspension of the removal order if he makes an application to the Federal Court for judicial review. He could actually be sent back before he gets a hearing.

What is the likely removal procedure? And if the RPD member has made a mistake, what are the claimant's chances of preventing being sent back to a risk of persecution and having his life put in danger?

[Lorne Waldman]

Perhaps we could call it “claimant roulette”, because really it will depend on whether he gets counsel in a timely fashion, because there will be no protection against removal. Once a negative decision comes down, if he's from a designated country he could be subject to immediate removal. He'll likely still be in detention, so the only way he can resist removal is by applying for a stay in the Federal Court, which means he has to have a lawyer who can bring the stay forward in a timely fashion.

We know these cases are going to get high priority. If the claimant can find a lawyer able to bring the stay forward, my sense is that the court will give very careful scrutiny, given the timeframes, but if he doesn't, he'll be removed. That's why many of us who look at this system believe that the potential for error is extremely high, and we fully expect that there will be many genuine refugees who will be deported as a result of it.

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

Canadian compassion at work.

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Lamoureux, go ahead.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Just as a quick note, the legislation is noted as being very costly, anti-constitutional, not fair; all sorts of assertions have been made during the hearing process.

We focus a bit more on families in this particular presentation.

First, to the two reverends, perhaps I can get your very quick thoughts on this. I only get five minutes.

A family of four arrives by boat, with two young children under the age of 10. If this legislation passes, it will make it mandatory that the parents be in detention for a full year. The children would have to be taken out of that family environment and likely put into some form of foster care. Unless there is an amendment made to this legislation, that's my interpretation of what would happen.

What would you say to the minister on that issue? Again, be very brief, if you could.

[Laurette Gauthier Glasgow]

I think it's unconscionable that a child of that age would be put into care.

I understand that another option is to remain with the parents, but in circumstances that are certainly not what any of us would accept for our own children.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Okay.

Mr. Waldman, now, my understanding is that there is no exception. You've already highlighted that it is a one-year mandatory sentence, no matter what the minister tries to say.

The issue I have for you is actually twofold. One you might not want to comment on, but you can feel free to comment on it. You were actually fairly soundly criticized inside the House, because, after all, you have a bias; you apparently are going to benefit—the suggestion is that your organizations that you're a participant in are—if your position actually prevails.

If you want, you can comment on that. It might not be worthy of comment.

What I am interested in hearing you comment on is let's assume you are the minister and two refugees arrive at the Toronto International Airport. What sort of fair process would you envision them going through?