Evidence of meeting #44 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 chair.
A recording is available from Parliament.
Conservative
Rick Dykstra Conservative St. Catharines, ON
Two things. Ostensibly, this change would remove the ability of the minister to order the release of anyone who is detained as part of an irregular arrival and instead give that authority to the CBSA.
It's our belief that when dealing with the safety and security of Canadians at the end of the day, that decision must rest, or should rest, with the minister who made the initial decision.
(Amendment negatived)
NDP
Jinny Sims NDP Newton—North Delta, BC
Thank you, Chair.
This amendment is fairly straightforward. I'm sure my colleagues across the way are going to vote in favour of this because this amendment is brought forward as a result of hearing testimony from stakeholder groups, including legal counsel after legal counsel, and also hearing from the Anglican Church and other such groups that presented here. They all talked about mandatory detention.
This amendment addresses—and this is where we're really trying to listen to what is of concern to the government, which, from all the arguments I've heard, is identity and security checks. This amendment makes explicit that once identification has been determined and the security check has been done, the person be released immediately.
What this does—and I've heard my colleague across the way saying to me that, of course, once these things happen, there's no intention of keeping people in detention. Of course, they will be released. But do you know what, Mr. Chair? People get very nervous when they have to rely on “of course, it's there” when they can't read the language. This purports to put that language in place very clearly, and yet it addresses the concerns raised by my colleagues across the way and by the minister.
It says:
A designated foreign national whose detention ceases as a result of any of the circumstances described in subsection (2) must be immediately released.
I'm not going to reiterate what's in subsection (2) because I did that at the opening of my speech. I know this is one amendment that my colleague across the way is going to jump in and support. I can't wait for his support on this.
Conservative
Conservative
The Chair Conservative David Tilson
I'm sorry. I have my list and you're not on it.
Ms. Sitsabaiesan, go ahead.
NDP
Rathika Sitsabaiesan NDP Scarborough—Rouge River, ON
Thank you, Mr. Chair.
As my colleague, Ms. Sims, has mentioned, every lawyer who has presented to this committee has stressed some concern with the clause for mandatory detention. Lawyer after lawyer spoke about its unconstitutionality, yet we see this government trying to punish desperate and traumatized asylum seekers as soon as they arrive, by throwing them in detention for a year, without review.
These refugees are, more often than not, held in provincial jails and treated like criminals, treated as guilty until proven innocent. That, we all know, is not the Canadian standard. It's a violation of human rights, it's also not effective in deterring human smuggling, and it is too costly, as our witnesses have stated. It costs approximately $200 a day to detain someone seeking asylum. Mary Crock, professor of law at Sydney University, told us that Australia has spent over $100 million in detention and over $60 million in compensation to asylum seekers and detainees who were wrongfully detained.
The most troubling part about mandatory detention is that it is a departure from Canada's compassionate nature. As Ms. Janet Cleveland testified, asylum seekers are a population that is “highly traumatized, has been exposed to war zones,” and when they arrive, we will place them “in a situation of helplessness” and “brand them as criminals when they are not”.
Canada's reputation of a global, international protection system is well-known and we want it to remain as such. We want to continue to be the safe haven for people in need. It only makes sense to uphold our Canadian values, the human rights of individuals, and allow refugees to settle as soon as their claim for refugee protection is allowed, by adopting this amendment.
This should be explicit in the law. In order to do that, we need to ensure that people are released from detention once it has been confirmed that their claim for refugee protection is allowed, or once a claimant's release has been ordered by the immigration division or the minister.
NDP
Conservative
Conservative
Rick Dykstra Conservative St. Catharines, ON
I understand and appreciate Ms. Sims's encouragement. It's too bad; it sounds like she doesn't trust me all that much. In fact, the legislation and the practical approach that is taken with respect to...once an individual has....
I should add, before I say anything more, Chair, that we are going to make some amendments on the issue of detention. I would like to indicate that there has been a lot of listening, as all of us on the government side have indicated that, where possible and where necessary, we would certainly make amendments to the legislation that would improve the bill.
On the issue of detention, we are going to deal with that when it comes up sometime today. Again, if the bill's intent allows for the release of a designated foreign national for prescribed reasons, the problem with that, and why we won't be supporting the amendment, is it would result in the minister’s not being able to detain those who are designated for detention for other reasonable grounds, i.e., criminality. While the amendment from the NDP's perspective purports to do one thing, it actually does more than that. It is our concern that there are times when, based on an individual's background, they need to be detained.
We can't put ourselves in a position where our legislation doesn't allow for that detention. Therefore, we won't be supporting the amendment.
NDP
Alain Giguère NDP Marc-Aurèle-Fortin, QC
We aren't talking here about criminals or known terrorists; we're talking about people who arrived irregularly. This detention is mandatory for national security purposes. I'm now going to address the expert witnesses.
What we're seeing here is the same criterion as in the War Measures Act during the October Crisis in 1970, namely, a presumption of guilt, meaning that people can be incarcerated without benefiting from habeas corpus. So I have a very simple question for you: what reasons in this legislation could make it possible to circumvent the requirements of the Charter of Rights and Freedoms? With the Singh and Charkaoui decisions, it's clear that we cannot detain someone without a lawful order.
In those conditions, I would like to know how, when you drafted your bill, you were able to make it so the charter would not apply.
Director, Asylum Policy and Programs, Department of Citizenship and Immigration
I would ask Scott Nesbitt to respond.
Scott Nesbitt Counsel, Canada Border Services Agency, Department of Justice
Yes. I think as the minister explained at the first meeting of the committee, the government's position is that the bill is defensible under the charter. In taking that position, it's important to keep in mind that charter analysis is contextual, and that if and when a court is asked to look at the constitutionality of the bill, it will look very closely at the context of the problem the bill is trying to deal with.
In that respect, it's going to look at the important objectives the bill is trying to achieve, and that is primarily, as I think you've heard explained on previous occasions, confirming the identity and investigating the admissibility of persons who arrive in Canada in an irregular manner. It will look at the challenging operational context the government and its officials are faced with when that sort of irregular arrival comes to Canada, and it will compare the legislative tools that are available to the government under this bill with those that are used in other countries with similar immigration systems.
It's important to keep in mind that the detention regime will be assessed looking very closely at the conditions that lead to it being triggered, that is the designation criteria, and those designation criteria are tailored to limit or focus the ability to make a designation, which triggers these powers to those situations where they are truly needed. You can look at the wording there, and we've been through that already.
I think it's important to emphasize again that it's the context that matters here, and that context will be foremost in the constitutional analysis. For that reason, it's the government's position that it is defensible under the charter.
Conservative
NDP
Alain Giguère NDP Marc-Aurèle-Fortin, QC
Yes. I have many questions, but you indicated the context.
The problem is that, in the Charkaoui decision, the judges rendered a decision on the context. But you're giving me an argument that the Supreme Court judges very clearly rejected. If it's just a question of context, that's not acceptable. There has to be more for the bill to circumvent the application of the Charter of Rights and Freedoms. Legally, that's a first. You're saying that the Charter of Rights and Freedoms has no bearing on this bill and that it's a matter of context. Your statements are contradictory. You're saying that the charter applies to this bill and that the context will determine whether or not the situation fits with the criteria of the charter. Let me repeat, in the Charkaoui decision, the Supreme Court judges were very clear: either the charter applies or it doesn't apply. So in this case, they only way you can consider this bill valid is by saying that the charter doesn't apply.
You can't justify this by citing instances of context. You absolutely have to come back to national security. According to the Charkaoui decision, the only argument that you can make is that the country is in danger. And yet, in the Charkaoui decision, that was considered, but it was limited. So I have serious reservations.
First, does the charter apply or not? Second, how do you interpret the Charkaoui decision, given what you are calling contexts and the fact that they were listed and removed?
Conservative
The Chair Conservative David Tilson
You have to look at me and talk to him.
Mr. Nesbitt, I don't know whether we have a standoff here or whether you have anything to add.
Counsel, Canada Border Services Agency, Department of Justice
I think I can add a couple of comments very briefly.
First, the government's position is that the bill is defensible under the charter. It's not that the charter does not apply. Of course, the bill may be subject to a charter challenge; that's the way our legal system works. At the end of the day, it will be for the court to determine whether the bill complies with the charter.
The position is that it's defensible under the charter, not that the charter does not apply. The charter applies to all bills and legislation of the federal government.
The second point I would make, and very briefly, is that as Department of Justice counsel I'm not here to debate the law with you. I'm here simply to explain the law and the government's position with respect to the law.
You probably are familiar with the Department of Justice Act and section 4.1, which requires the Minister of Justice to examine every government bill that's presented in the House to ensure it's consistent with the purposes and provisions of the charter. I can tell you that this bill wouldn't be before the committee today had the Minister of Justice determined, when he did that examination, that the bill was not consistent with the purposes and provisions of the charter.
Conservative
The Chair Conservative David Tilson
You still have the floor, Monsieur Giguère. I have no problem with what you're saying. You can say you disagree with counsel—not a problem—but I don't think it's appropriate to get into a debate with counsel. He has his opinion and you have your opinion.
NDP
Alain Giguère NDP Marc-Aurèle-Fortin, QC
No. I requested information. He gave very important information.
You said that you had analyzed the admissibility of this bill under the charter. Can you tell me, with respect to the Charkaoui decision, what the enforcement assets are?
Conservative
The Chair Conservative David Tilson
You're making it tough for me.
Mr. Nesbitt has given a comment that counsel from the Ministry of Justice have reviewed all this. To be fair, you're doing what I would rather you not do, and that is to get into two lawyers having a.... It's nice to watch, but I don't think it's appropriate. My job is to make sure that members of Parliament don't get into a dust-up with the department.
The department is here to provide explanations of a bill. You may disagree with those interpretations—you are disagreeing with those interpretations—and that's perfectly appropriate for you to do. But I don't think it's appropriate for you to get into a legal argument with Mr. Nesbitt.
I'm here as chairman. I'm not a judge, and I don't intend to make rulings on legal opinions. Mr. Nesbitt may be right and you may be right, and that's the way it's going to be.
Monsieur, I'd rather that you don't challenge Mr. Nesbitt's statements. You can ask for clarifications, but I'd rather you don't challenge his statements.