Citizenship and Immigration Committee on May 10th, 2012

[Rick Dykstra, Conservative, St. Catharines, ON]

I just have three quick points, Mr. Chair.

While I actually think the member did a pretty ingenious job of reworking our amendment, I compliment her for that, but I do want to acknowledge three things.

First, the difficulty is that the change forces the minister to act versus allowing him to act. I think that's a critical part of this. The amendment would give the minister the ability to act. It now would force him or her to act.

That leads to a second problem, which is that the minister of the day may have a specific reason to not act on this part of the bill if it's not in the best interest of Canadians or not in the best interest from a protection perspective.

Let me take that a little bit further, which is my third point. If the minister is forced to act and release someone, and that individual does something illegal and the questions arise as to why the minister allowed this individual to be free from detention and then this criminal act occurred, the minister's response can only be, “Well, I was forced to act because of the legislation.”

It behooves all of us, and I think it's more incumbent upon the minister who is in that position at the time, that there is ultimate responsibility that falls with the decision-maker versus looking to the legislation as either protection or as a fault. If someone were to be released, based on how this would currently be worded, as per the NDP amendment, it puts all of us as government members, regardless of which party we're in, in a vulnerable position based on what the legislation would say. It even puts the minister in a much more vulnerable position, because despite what the minister may believe to be in the best interest of Canadians, the minister is actually forced to act based on what this piece of the legislation would say.

I hope I've made it clear. We won't be supporting the subamendment. We believe the amendment the government proposes actually allows for everyone to see that the availability of implementing this option is available to the minister and it's in the legislation, but that we still grant the minister of the day the opportunity to make that decision on his or her own.

[The Chair, Conservative, David Tilson]

Thank you.

Ms. Sims.

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

By the way, our attempt in this was not to put the minister in some kind of box or to make him more vulnerable. God forbid. At the same time, I cannot imagine a minister saying that we're going to be keeping people in detention. I don't think that was the minister's or your intention either, if (a) to (c) and (e) have been met, because if they're a threat to the nation, they're going to be captured in (a) to (c) and (e). We're only saying that if the reasons for the detention no longer exist. So if there is a problem with our wording—and I'm not a technician—and you feel that a different wording would get to where we're trying to get to, I would like to work with you to get us there.

I've heard your comment about not wanting to make it mandatory for the minister, but I think at the same time you don't want to leave language like “in the Minister's opinion”, because I would say that any reason why a minister would want to keep somebody in detention is already captured in (a), (b), (c), and (e). If we're saying that they are the only reasons people are going to be detained, and it's the government language that has said that, then surely, when none of those reasons exist, we have to have that tied to that rather than to any minister—and I'm not saying this minister; I'm saying any minister's, current or future, opinion. We don't keep people in detention because of opinions; we keep people in detention because we've articulated the reasons why they are being detained. They are very clear in (a), (b), (c), and (e). If you like, I can read them out to you, but I'm sure you've memorized them as well.

I'm looking for assistance here, Chair, from my colleague across the way, because I think he understands the point I'm trying to make. We are not trying to box in the government with this. I'm not a lawyer. I'm not sitting here trying to find a back door. I'm just trying to be very explicit as to the reasons for detention. The reasons for being released from detention should be parallel.

[The Chair, Conservative, David Tilson]

Go ahead.

[Rick Dykstra, Conservative, St. Catharines, ON]

Perhaps it would be helpful to have.... I think at the end of the day, I would like to get an opinion on how taking out the four words “in the Minister's opinion” impact the amendment.

[Jennifer Irish]

I'll ask Mr. Kagedan from Public Safety to respond.

[Allan Kagedan, Director, National Security Operations, Public Safety Canada]

Thank you.

This provides the minister with the authority to act at any time with respect to releasing an individual. Once you satisfy those other criteria, it could happen at any time. It essentially establishes that if there are no reasons to detain, the person need not be detained, and there's no time limit on it, not even the 14 days. As a matter of practicality, you would think that you'd need a bit of time to establish identity and to go through those other things, but it actually permits great latitude to the minister to do that.

I guess as well, when you structure something based on a minister's opinion or that kind of thing, what you're doing is...you're not in a situation where some other body would have to make a decision that would tend to be a review where another body makes a decision.

Generally speaking, as I understand it, in situations of a minister's opinion, it allows that flexibility outside of another process to have to determine when those conditions are met. As I say, there would be no minimum time that would be set down for detention because the minister could act proactively at any time.

[The Chair, Conservative, David Tilson]

Go ahead, Ms. Sims.

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

The question that I heard Mr. Dykstra ask was if in that last line, in (2), the four words “in the Minister's opinion” were removed.... Right? So it would read:

years of age or older on the day of the arrival, that is the subject of the designation in question [if] the reasons for the detention no longer exist.

Then we wrote in there “as set out in paragraphs 58(1)(a) to (c) and (e)”.

I really would urge my colleagues across the way, even if they need to take a slight recess, or maybe we could come back to this after lunch.... We could always leave this particular clause aside, because I don't want us to make hasty decisions. I really want you to go away and think about this and see that “in the Minister's opinion” in this case is not needed when the reasons for the detention no longer exist. Then let's stipulate what those reasons are, once again for clarity's sake, so that everything is there when somebody reads it.

[The Chair, Conservative, David Tilson]

Mr. Dykstra.

[Rick Dykstra, Conservative, St. Catharines, ON]

Actually, my perspective on this has tightened. Mr. Kagedan has done a good job clarifying for me the importance of leaving the aspect of “in the Minister's opinion” in, but I wouldn't mind getting a follow-up perspective from him. I think he has one.

[Jennifer Irish]

I'm actually going to ask Scott Nesbitt to come in on the difference between the “may” and the “shall” and what impact that has.

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

We're actually all right on that. Now we're talking about “in the Minister's opinion” on that last line and then putting out “as set out in paragraphs”—that part.

The “may” and the “shall” I acknowledged with Mr. Dykstra. We would like “shall”, but I heard his point.

Could we move to defer until the afternoon on this particular one?

[Rick Dykstra, Conservative, St. Catharines, ON]

I'm prepared to listen if Mr. Nesbitt has a comment, but while I acknowledge your intent, I do think the amendment does what it's supposed to do in terms of giving the minister some prerogative, while at the same time ensuring that the first principle of the amendment or of the clause is that the decision-making process rests with the ministries versus with the particular minister.

I think this gives us an additional piece, but I am convinced that it should stay as is. I'm certainly prepared to hear Mr. Nesbitt's point.

[Scott Nesbitt]

I'll make two points that I hope will help clarify the wording a little bit and why those particular words are used, Mr. Chair.

The first is that the wording of the proposed amendment is, you'll notice, almost verbatim the same as the wording of the existing section 56 in IRPA. Section 56 of IRPA gives authority to an officer, rather than the minister, to release somebody from detention before the immigration division starts its detention reviews for the normal run—the normal detention scheme, not the Bill C-31 detention scheme.

The same wording there is used: an officer may order the release of an individual where the officer is of the opinion that the reasons for the detention no longer exist. The reasons for detention—that wording is understood to be the reasons for which the person was first detained. One of the reasons is in 58(1)(a) to (d), as we've referred to before.

The particular “of the opinion” wording is used throughout IRPA where there's a legislative intention to ensure that the minister's decision is given a greater degree of deference than perhaps may otherwise be the case.

So it is not that a tribunal or a court reviewing that decision objectively decides for itself whether those reasons for detention exist, but rather looks at whether the opinion of the minister is reasonable. It's a slight difference, and it really has to do with the deference to the minister's view when that decision is being reviewed by a subsequent body.

[The Chair, Conservative, David Tilson]

Are you finished?

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

I've stated my position, Chair.

[The Chair, Conservative, David Tilson]

We're dealing....

I'm sorry. Ms. Sitsabaiesan.

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

Thank you, Mr. Chair.

We know that paragraphs 58(1)(a) to (c) and (e) clearly articulate the possible reasons for a detention. Here in the release clause, which is what I'm going to call it, it makes sense to clearly articulate the grounds.

As far as I understand it, nowhere does it say why you're being released or why you cannot be held any longer in detention. If the conditions of the detention, which are as outlined in subsection 58(1), don't exist any longer, then there's no reason for a detention.

I think it makes sense. It gives strength and clarity to know these are the reasons that you are not being detained any longer. That's our intent. That's why we're trying to insert it in here, because it makes sense to have that added clarity in the legislation.

That's all. Thank you.

[The Chair, Conservative, David Tilson]

Mr. Lamoureux.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

I'll make a quick point. This is a question for Ms. Sims.

In listening to the explanation, the question I would have is, if you put it into a position in which the minister has to release the person because the refugee claimant no longer meets the requirements for detention purposes, then you're obligating the minister to release the person. Why would we allow the minister to make that decision as opposed to the local civil servant or border control staff? If there is no discretionary authority, and a refugee no longer is required to be kept in detention because of the legislation, why would it advance to the minister? I'm not quite clear on that point.

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

Let me make it very clear. We would prefer it if there was no detention. We also tried amendments to say that once these things had happened, the person would be released automatically. None of those made muster. Right?

We were told before that all of this would be stipulated in regulations. I think what the government has done in this case is it has put into the actual legislation that the minister would be taking a look at this and could release people at any time, as long as the reason for the detention no longer exists.

It's because of that that we supported this. We tried to make it stronger. I still live in hope that this amendment will carry.

[The Chair, Conservative, David Tilson]

We have a subamendment, which is an amendment to the amendment by the New Democratic Party.

(Subamendment negatived)

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

My heart breaks again.

[The Chair, Conservative, David Tilson]

We are back to the government amendment. Is there further debate on the amendment?

(Amendment agreed to)