Good morning everyone.
Thank you for inviting us to appear before the committee today.
The Association québécoise des avocats et avocates en droit de l'immigration, or AQAADI, was founded in 1991 and represents more than 500 lawyers in Quebec in the specific field of immigration and refugee protection law.
AQAADI's objectives are, among other things, to ensure that citizenship, refugee protection and immigration laws and policies are drafted and applied in accordance with the principles of fairness, and that they adequately meet the needs of Quebec and Canada while respecting the Constitution, the Canadian Charter of Rights and Freedoms and international treaties ratified by Canada.
First and foremost, we applaud the introduction of Bill C‑20. We would like to emphasize the importance of implementing a third-party monitoring system of the Canada Border Services Agency and its employees. In our view, not only is it essential to protect the public, but also for the administration of sound, efficient and transparent justice.
On this last point, it's important to note that the Canada Border Services Agency intervenes in many quasi-judicial proceedings at the Immigration and Refugee Board, which are related to the immigration process, whether it's on detention issues, asylum claims or even removals. However, most of the agency's representatives are not lawyers and don't have to answer to the same regulatory bodies or are subject to the code of ethics for lawyers. Consequently, in the event of misconduct on the part of a CBSA representative, there is not much recourse against them and, for the time being, any action taken is governed solely by the CBSA's internal processes. Our members' experience in the field has shown us that this is not enough to oversee the quality of their work and guarantee the sound administration of justice.
For this reason, we respectfully suggest that the definition of serious incident in section 14.1 of the proposed Canada Border Services Agency Act be amended to include any incident that may interfere with the administration of justice or the proper conduct of a judicial process, and thus not limit the scope of the Act to an incident defined as serious.
By the same token, we believe that the definition of a serious incident should also include any behaviour that would result in a violation of rights and freedoms, including the unfounded detention or the extension of an individual's detention. Although detention does not necessarily result inserious bodily harm or death, it nevertheless causes irreparable harm, since it is a violation of the right to liberty and time spent in detention can never be recovered, not to mention the psychological fallout.
In the same vein, certain provisions of Bill C‑20 refer to arrest and detention by the Canada Border Services Agency, but there is no clear definition of these terms. For example, subsection 13(2) states that the commission's annual report must include “the number of complaints filed under this act by persons detained by the Agency”. Section 86, however, states that “a person who is arrested or detained by an officer or employee of the Canada Border Services Agency is entitled to be informed as soon as possible of his or her right to make a complaint under Part 2 and of the manner of doing so.”
In our experience, the CBSA has a very restricted definition of arrest or detention by one of its employees. In this respect, with regard to the massive arrival of refugees over the past few years, several asylum seekers were arrested by the RCMP after an irregular crossing of the land border, and within hours were handed over to the CBSA. However, many of them remained at the border under CBSA control for days, and in some cases for more than a week, without being considered arrested or detained. As a result, the process to ensure the legality of their detention under the Immigration and Refugee Protection Act was not initiated for several days.
This is just one example, but it is crucial, in our view, to have a clear definition of what detention and arrest mean so that it is not left to the discretion of the agency, and that the provisions in question apply as soon as an individual is detained or arrested.
Furthermore, in our opinion, the deadline set out in section 33(2) for lodging a complaint is too short. This is specifically based on the fact that current delays in immigration processes exceed one year. On this point, the current average time for an asylum claim to be processed is about two years. Based on our experience with our clients, who are often a vulnerable position, we believe that potential complainants would be reluctant to initiate this type of procedure out of fear that it would negatively affect their chances of success, or even speed up their removal.
Finally, we found that most decisions or opinions of the commission in connection with a complaint, such as the decision not to investigate a complaint as provided for in section 38, or a report on the complaint as described in section 49, or the commission's final report, are disclosed solely to the complainant. We suggest that a copy of any communication should also be disclosed to the complainant's legal representative. Indeed, in many cases, the person concerned may have been removed from Canada, particularly as the complaint process does not provide for a stay of removal. Should this occur, it is highly unlikely that the commission would have the individual's new contact information, whereas it is more likely that the legal representative would.
In the same vein, it would also make sense to allow third parties, organizations, to file complaints.
In the end, we respectfully submit to you that the passage of this bill is crucial, but that appropriate changes must still be made to frame the agency's conduct as well as its policies. This is necessary to ensure public protection and a sound, efficient and transparent administration of justice.
Thank you.
