Citizenship and Immigration Committee on May 10th, 2012

[The Chair, Conservative, David Tilson]

Ms. Sims, as you can tell, NDP amendment 12.1 is identical.

Mr. Dykstra, go ahead.

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

Thank you, Mr. Chair.

I appreciate the consideration the Liberals and the NDP have given to this. As everyone around this table is aware, we did move from a perspective that anyone under the age of 16 is exempt from the legislation, and the determination is made by the parents, obviously, what will happen to the children, if there are parents available to make those decisions. Obviously, if they are children under the age of 16, the state will have the responsibility to determine what should happen. That was a huge change from the previous Bill C-49 on human smuggling, in that it did not have an age exclusion with respect to detention.

On that side, the first point, Mr. Chair, is that I think we've moved a great deal from Bill C-49, representing the former human smuggling bill, to our current Bill C-31.

The second point is that the government is of the opinion, and there is a lot of evidence on the justice and legal side to show this, that the age of 16 is appropriate; it is an age when those individuals are at least able to make a decision and determine on their own what may or may not—or at least have some input into their outcomes. So we've determined that they can make an independent decision on whether they want to (a) use the services of a human smuggler, and (b) make decisions here when and if they arrive in Canada. It's our determination that the age of 16 is fair and it's appropriate, so we will not be supporting the amendment.

[The Chair, Conservative, David Tilson]

Madame Groguhé, go ahead.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Thank you, Mr. Chair.

Our Liberal colleague is proposing this amendment, and we are proposing the same thing with subsection 12(1). Witnesses who have appeared before the committee have stressed the devastating impact of detention. Aside from the refugees, for whom the consequences of adopting this bill will be devastating, we must think very seriously about our responsibilities and our role as parliamentarians.

As part of our study, this committee has heard from some very qualified people who drew our attention to the anticonstitutional nature of a number of provisions of Bill C-31, including provisions relating to mandatory detention, particularly of children. But we are continuing to be deaf to the experts' observations.

I'm wondering what the experts we heard from, the front-line workers who presented studies and the refugees who told their stories are going to think of us, the MPs that we are.

To come back to clause 23 of the bill, which amends the mandatory detention of designated foreign nationals 16 years of age or older, I would like to remind everyone once again that these provisions are anticonstitutional and violate international conventions, including the Convention on the Rights of the Child. The 1951 Convention Relating to the Status of Refugees prohibits the arbitrary detention of asylum seekers, except for security or identification purposes. The Convention on the Rights of the Child prohibits the detention of children. The convention states, and I'm clarifying, that a child is a human being below the age of 18 years.

We are asking that the age of the child be harmonized with the Convention on the Rights of the Child. Furthermore, the experts we've heard from reminded us that mandatory detention is prohibited, except for the reasons set out in the IRPA.

Lastly, they stressed to us that the detention of children is also prohibited because it is devastating for them and for society. For children, this detention has devastating effects, both psychologically and mentally, and on their development. The separation of children from their parents, or even just seeing them detained, has an inhuman impact on them.

To conclude, we know what the 1951 Geneva Convention and the Convention on the Rights of the Child say about this. Experts from UNICEF and the other experts have also told us that the detention of asylum seekers is an exceptional measure that can only be considered as a last resort. The detention of children is inhuman and devastating. Canada should not introduce it into the Immigration and Refugee Protection Act. Having said that, the purpose of the amendment that the NDP is proposing here is, once again, to make Bill C-31 consistent with the Convention on the RIghts of the Child with respect to the age to be considered in deciding whether to release children who may be detained, or shouldn't be detained at all. A person stops being a child upon reaching age 18. That's what the conventions we've signed say.

Thank you, Mr. Chair.

[The Chair, Conservative, David Tilson]

Thank you, Madame Groguhé.

Ms. Sims.

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

Thank you very much, Mr. Chair.

I'm also speaking in support of this amendment. It reflects the amendment the NDP has put forward as well. I want to remind all of us...and we're not going to go over all the testimony we've heard. I want to thank my colleague for her very eloquent summary of some of the key concerns.

When you have 16-year-olds who can be detained, what that means is they're going to end up in provincial prisons. We've already heard that under the current system, our immigration detention centres get pretty packed, and on a daily basis we have people who have to be housed in prisons. We've also heard about some of the circumstances around that.

I'm a mother. Mind you, I think my 27-year-old isn't making the right kinds of decisions and all kinds of things. You know, moms are always moms. To imagine that a 16-year-old would be housed in a prison, it's just not sitting right with me. I don't think it's something that would sit right with Canadians.

There's also the social impact. When you put young people at the age of 16...and you need to know, Mr. Chair, that I've worked with youth all of my life, as a teacher, as a counsellor, and as a community worker. One thing I do know is that the age of 16 is a very vulnerable age, both for girls and boys.

There is the social impact of detention that we have to take into consideration. I'm not saying no one should be detained, except for very limited reasons. I'm really pleading with my colleagues across the way, as parents and grandparents in some cases, to take a look at this, and say that a 16-year-old is not necessarily an adult. That kid, when he jumps on the boat, if it's a boat, is not saying, “Hey, I get to make an independent decision.” He's escaping something.

The other issue I want to discuss is that children under 16...the parents have a choice. It's left up to the parents to determine. It seems very much like Hobson's choice. The previous iteration said everybody would be detained and then the later iteration, the current iteration, says, “Well, if you're under 16, your parents get to decide.”

I absolutely agree that if children under 16 arrive, without any parents or family members, they would go to the state and the state would proceed. But when parents arrive escaping some pretty horrendous situations and are fleeing because their lives are at risk, I find it difficult to say to them, “You have two choices”, and they're real choices. The choices are, “You can keep the children in prison with you, or you can give them up to strangers, who you don't know, who will look after them for you while all this is happening.” As a parent, that would not be a choice for me because I would want to keep my kids with me.

Let us not keep children in prison, because we know the impact that prisons have on families.

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Dykstra.

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

I have four things, Mr. Chair.

First of all, the Minister of Public Safety still has the ability under this legislation to release anyone under detention. If a ship were to arrive and the minister had to make a determination, the legislation allows for him or her to decide whether or not detention is the right or proper thing for the child. So let's keep that in mind. It is always at the forefront of the decision-making process.

Second, I would point out that we are being consistent—this is in keeping with the young offender legislation, which uses the age of 16 as its cut-off point.

Third, I hate to admit this—well, I'd love to admit this, but I don't know if it's good that I've been around here this long. A number of years ago we dealt with age of consent. Mr. Chair, I know you were here at that time, and there was a lot of discussion about what should happen with the raising of the age of consent. We went from 14 years to 16 years, and I recall the vehement opposition from both the Liberal Party and the NDP. They expressed shock that we would dare to raise the age of consent from 14 to 16, because, as they considered it, Canadians of 14 were more than capable of making decisions for themselves. I wish we could have had some of the members who sit on the other side of the table here when we were trying to pass that justice legislation in a minority government. You would have helped us a great deal in moving the age of consent from 14 to 16.

[The Chair, Conservative, David Tilson]

Thank you.

Ms. Sitsabaiesan.

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

Thanks, Mr. Chair.

We have had witnesses—refugee lawyers and others working on the front line with the asylum seekers coming into our country—tell us that these children's ages are not necessarily accurate. They're coming from precarious situations such as war zones, from countries that may not have the infrastructure to have their ages recorded accurately. Experts who are dealing with this on a daily basis told us that officials sometimes make an estimation of the child's age. In a conflict zone, a child can end up not having much of a childhood and may mature far too soon. Based on their manner and the mature way they carry themselves, they may be artificially determined to be 16. We heard a witness say that a 14-year-old was erroneously categorized as a 16-year-old, and that we may continue to see that happen.

Now we have 13-year-old kids and 14-year-olds being put into the general population in our provincial prisons. One of our witnesses came from Manitoba and said that in Manitoba there was no immigration detention facility, so provincial prisons are the only option. So now we have 13-year-olds and 14-year-olds in prisons. It's absolutely abhorrent. This is another reason why the age should be changed from 16 to 18—to allow fewer children to be imprisoned.

[The Chair, Conservative, David Tilson]

Monsieur Giguère.

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

One of the witnesses, Peter Showler, also talked about detention centres. I listened to what Mr. Dykstra said. You're putting a 16-year-old girl in a provincial detention centre. What kind of people are there in a provincial detention centre? Probably people charged with shoplifting, drug trafficking, solicitation for the purposes of prostitution. This girl hasn't committed any crime. She isn't guilty of anything at all and we're going to incarcerate her at a detention centre. I see a problem here. It's one thing to isolate people for identification and national security purposes for two or three days, but putting someone in an bad detention setting, that's a whole other story.

You proposed the detention of people 16 to 18 years of age without ensuring you have the physical resources for that detention to be safe and as harmless as possible for a young person. It's even more serious in the case of a boy. It's important to understand that, in the provincial detention system, incarceration isn't what's favoured for small crimes, it's community work. So what we find in provincial prisons are people incarcerated permanently, and not people serving their sentence on a weekend. These are criminals who are a little more hardened, and I would even say considerably more hardened.

There, you're putting a young person in an environment where there is an enormous amount of criminality and violence. Provincial prisons don't have minimum, medium and maximum security. All inmates are in the same place. It's up to the prison guards to place them in different wings, based on whether they are more or less dangerous. But what should the guard do with a 16-year-old?

It's all very well to adopt a bill, but where are the physical resources to apply it technically? We haven't heard anyone talk about that. All we've been told is that we are going to incarcerate them in provincial prisons. That's where the problem lies. You're talking about detaining 16- to 18-year-olds, which is already tragic, but detaining someone who's 16 in dangerous living conditions, that's totally unacceptable. If you were telling us that you were going to set up reception centres especially for children and detention centres for all the inmates, that would be something else entirely. But that's not what you're doing. You're handing over the responsibility of detaining and protecting this young person to a provincial authority. That's the issue.

As long as you aren't guaranteeing that the necessary resources will be in place, it is out of the question that we will agree to incarcerating 16- to 18-year-olds in a criminal setting. I argued cases before youth courts in Quebec, and I can tell you that no judge in Quebec would accept this kind of ridiculousness, ever. It would be considered in the cases of youths in detention. Before a judge decides to try a youth 16 to 18 years of age as an adult, major action is required. But in this case, the action is simply that an individual arrived in a way we consider irregular.

No, sir, that isn't acceptable.

[The Chair, Conservative, David Tilson]

Madame Groguhé.

[Sadia Groguhé, NDP, Saint-Lambert, QC]

Thank you, Mr. Chair.

We can say that children who have been born and raised in stable conditions like the ones we are familiar with become adults when they reach age 18. I'd like to give you a simple example. I've been an MP for a year now, and I have four children. My eldest is 18. Since I'm in Ottawa all week, I don't get home until the weekend. I thought that only the younger children were having trouble with the separation, but my eldest told me that I couldn't know how much she misses me and how much she needs me. I was very surprised by that because I told myself that, at 18, she had become independent, an adult. Those words had a profound effect on me.

As a mother, I'm putting myself in the place of all parents, all mothers who will have to see their children 16 and older incarcerated with them. I don't think we're considering the best interests of the children here. We made immense progress in respecting fundamental rights, human rights and universal rights. But I don't understand why today, going from 16 to 18, should pose a real problem. I would also like to stress the fact that this involves vulnerable people and children. I think we need to take that into account in the decision to move the age from 16 to 18 years.

[The Chair, Conservative, David Tilson]

I'm not supposed to say anything, but I have a daughter who said the same thing.

Is there any more debate on LIB-13? This amendment is identical to NDP-12.1. I'll call the vote.

(Amendment negatived)

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Could we have a recorded vote on that one?

[The Chair, Conservative, David Tilson]

You're a little late, but we'll do it again. Someone could say we're late, but I haven't heard them saying we're late, so we'll have a recorded vote.

Madam Clerk, if you will.

(Amendment negatived: nays 6; yeas 5)

Mr. Lamoureux, LIB-14 is a duplicate of Ms. Sims's amendment, NDP-12.2.

Mr. Lamoureux, you have the floor.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Thank you, Mr. Chair.

I would move that Bill C-31 in clause 23 be amended by replacing line 39 on page 12 with the following:

who was 18 years of age or older on the day

In short, to provide some comment in terms of the background of the amendment.... As we just had a previous amendment dealing with the whole age issue, Mr. Chair, and given what happened in terms of the vote, I suspect there's a very good chance that this particular amendment will also be defeated.

I did want to emphasize one other point. I do come to the table with some experience with youth. I was a chair of a youth justice committee and a member of the youth justice committee for about 10 to 12 years. So I've dealt with a lot of young offenders between the ages of 12 and 18, because a vast majority of young offenders are in fact under the age and go up to the age of 18.

In dealing with a number of youths directly, I have found quite often there's a sense that the best way sometimes you help a youth is to take them out of an environment and put them into a new environment. Then they seem to have a change in attitude. The reason why I say that is because when we have refugees who are 17 years old who are coming to Canada—and in this case it might be via a boat and they land in Canada—there is this sense of change. The environment is significantly different from the environment they've been taken from.

We have an opportunity at an early age, as much as possible, to make that a positive experience for someone who's 17 years old. By doing that, at the end of the day, the mental condition of that youth is going to be far better if in fact we keep them out of a detention centre. It has already been pointed out that a fair number of these detention centres are at more than capacity. So if they're at capacity, this then means they're going from the detention into a provincial corrections institution.

I have had the opportunity to tour provincial correction facilities in the province of Manitoba. I wouldn't want to see a 17-year-old refugee come to Winnipeg and end up in the Headingley jail, Mr. Chair. That would just be wrong. I think if you were to take a group of people into the Headingley facility...and it's no reflection at all on the staff at that particular facility. I must say, they do a wonderful job, given the facility they're in. But it is not a good environment for a youth who's trying to start over again in a different country.

I say that because I want members, in particular government members, to reflect on the mental conditions and the opportunity that is lost by us not dealing with this youth at an age, 18, when, as the vast majority of the world would recognize, adulthood starts. I recognize that for youth in different countries sometimes that maturity level is heightened at a much younger age because of their environment, but I think in the western world, 18 is the age. That is the age we have been going by for many years here in Canada. It's the age of majority, it's the age at which people get to vote, and so forth. I think if we would have had more psychiatrists and so forth, mental health workers, they would concur with the thought that 18 is a significant age in terms of a youth's maturity.

With that, I leave it with the table. It's just a reflection on other comments we've heard, and I look forward to the vote.

Thank you, Mr. Chair.

(Amendment negatived)

[The Chair, Conservative, David Tilson]

It fails.

Mr. Lamoureux, Liberal amendment 15.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Chair, I would move that Bill C-31 in clause 23 be amended by adding after line 41 on page 12, the following:

(3.2) An officer may not issue a warrant for the arrest and detention of a person under this section unless the officer is satisfied that the person poses a threat to Canadian society.

In essence, Mr. Chair, just to keep it short, if you are not a threat to society, then why should you be detained? That's what we're reminded, and it is the essence of what it is I'm hoping to accomplish by moving this amendment.

(Amendment negatived)

(Clause 23 agreed to on division)

(On clause 24)

[The Chair, Conservative, David Tilson]

Liberal amendment 16.

As you know, Ms. Sims, it's identical to NDP amendment 12.3.

Mr. Lamoureux.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Thank you, Mr. Chairperson.

I would move that Bill C-31 in clause 24 be amended by replacing line 3 on page 13 with the following:

Division and who was 18 years of age or older

As you've already pointed out, Mr. Chair, it shows that the NDP and Liberals are in sync on this particular idea of 18 versus 16.

(Amendment negatived)

[The Chair, Conservative, David Tilson]

Liberal amendment 16.1. Mr. Lamoureux.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Chairperson, I would move that Bill C-31 in clause 24 be amended by replacing lines 6 to 8 on page 13 with the following:

(a) they are released as a result of an officer ordering their release because the officer is of the opinion that the reasons for their detention no longer exist.

Mr. Chairperson, in short, this allows a person out of the mandatory 12-month detention if there is merit and they have been granted status. This is an important amendment. I would look to the government to possibly provide comment on this amendment, if they so choose.

[The Chair, Conservative, David Tilson]

Mr. Dykstra.