Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 20 - Evidence
OTTAWA, Monday, June 18, 2012
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-31, An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act, the Marine Transportation Security Act and the Department of Citizenship and Immigration Act, met this day at 1 p.m. to give consideration to the bill.
Senator Kelvin Kenneth Ogilvie (Chair) in the chair.
The Chair: Honourable senators, before we welcome our first panel and the minister, I want to go over this afternoon with my colleagues. We have a fairly lengthy afternoon and I remind them that we have two sessions. This one will end, as per agreement, at three o'clock.
The second will begin at 3:15 and end at 5:15, consisting of two one hour sessions.
Are we all clear on today's session?
Welcome to the Standing Senate Committee on Social Affairs, Science and Technology.
I am Kelvin Ogilvie from Nova Scotia and the chair of the committee. I will ask my colleagues to introduce themselves.
Senator Merchant: I am Pana Merchant from Saskatchewan.
Senator Callbeck: Catherine Callbeck from Prince Edward Island.
Senator Jaffer: I am Mobina Jaffer from British Columbia.
Senator Munson: I am Jim Munson from Ontario, but my heart is in New Brunswick.
Senator Martin: Senator Yonah Martin from Vancouver, British Columbia.
Senator Lang: Dan Lang from the Yukon.
Senator Verner: I am Josée Verner, from Quebec.
Senator Seth: I am Asha Seth from Toronto, Ontario.
Senator Wallace: I am John Wallace from New Brunswick and my heart is in New Brunswick as well.
Senator Seidman: Judith Seidman from Montreal, Quebec.
The Chair: Welcome, minister. We are very pleased that you are able to be here today with your officials. It is my understanding that you are limited in time and will be making a presentation to us but will need to leave by 2 p.m. Is that correct?
Hon. Jason Kenney, P.C., M.P., Minister of Citizenship and Immigration: Yes, we have Question Period, unfortunately, but I would be happy to stay.
The Chair: We will keep the question period here as long as you can stay. Another of your officials will join us once you have needed to depart. Minister, with that I will get right to it: The floor is yours.
Mr. Kenney: Thank you very much, Mr. Chair. I am pleased to be here today to discuss Bill C-31, Protecting Canada's Immigration System Act. Immigration is central to our history and to our success as a country. As they built new lives in Canada, the millions of newcomers we welcomed here over many years also helped to build Canada itself. Indeed, Canada today is a peaceful, free and diverse country that is the envy of much of the world partly due to the tremendous contribution of immigrants and their descendants.
The Government of Canada is committed to keeping Canada's open and generous immigration and refugee system functioning in a way that supports our national interest. Our commitment is evidenced by the fact that over the past several years we have maintained the highest sustained levels of immigration in our nation's history, admitting over a quarter of a million new permanent residents per year.
Our tradition of refugee protection is the international gold standard. In fact, we are increasing the number of resettled refugees we accept to Canada by some 20 per cent. At the same time, we will maintain our generous refugee asylum determination system, which will ensure that genuine refugees who arrive and need protection get it, and do so more quickly.
In order for Canada to maintain our tradition of openness and generosity we must, however, be ever vigilant to ensure the system is characterized by the consistent application of fair rules. We must also protect our system from those who would seek to abuse Canada's generosity by cutting the queue, making false asylum claims, coming through illegal smuggling operations or otherwise violating our laws.
It was in this spirit that we introduced Bill C-31, which improves Canada's immigration system in a number of ways. Specifically, it builds on the long-needed reforms to the asylum system that were passed in Parliament in June 2010 as part of the Balanced Refugee Reform Act.
Since those reforms were passed, we have seen a significant increase in unfounded refugee claims, particularly from EU nationals, who come from countries that have democratic and legal systems similar to our own.
In fact, in 2011 Canada received a total of 5,800 asylum claims from democratic rights-respecting member countries of the European Union — an increase of 14 per cent from 2010. Here is a startling fact: We have been, for three years now, receiving more asylum claims from the democratic countries of the European Union then we have received from Africa or Asia. Most Canadians would expect to see countries like North Korea, Iran or Zimbabwe as our top asylum source countries, but in fact the democratic countries of the European Union are.
What is most telling is that almost all of the EU asylum claims are abandoned or withdrawn by the claimants themselves. I repeat this point because we have a heard a lot of debate on the issue of EU asylum claims. It is true that almost all of the EU claims that go to the IRB for adjudication are rejected as not having a well-founded fear of persecution. However, it is more important to understand that only a tiny number of the EU asylum claimants bother to show up at their own asylum hearing. The vast majority — over 90 per cent — abandon or withdraw their claims of their own volition, telling us they do not need Canada's protection.
This is not only unacceptable but also very expensive, costing taxpayers far too much of their hard-earned dollars. Fake claims from the EU cost Canadian taxpayers over $170 million a year.
Bill C-31 would enable the government to respond more quickly to increases in refugee claims from countries that generally do not produce refugees, such as most of those in the European Union. This principle is well recognized by the UN High Commissioner, meaning that it is common practice to have a fast-track system to process claims from countries that generally do not produce refugees. Claimants from these countries will be processed in about 45 days.
Claimants who are not from designated countries of origin would also have their hearing timelines accelerated. It is proposed that these would be scheduled within 60 days of being referred to the IRB. Compare this to the more than 1,000 days under the current system, and it is often much longer than that. By processing claims more quickly not only will we be able to remove those who are abusing our system but also at the same time we will be providing protection much more quickly to those who need it.
In addition, this bill would allow Canadian authorities to better crack down on the despicable and dangerous criminal endeavour of human smuggling, which endangers the lives of men, women and children by transporting them in unsafe vessels or shipping crates every year. Thousands of people die in such operations around the world. A series of provisions in Bill C-31 will help to ensure that the actions of human smugglers will not undermine the integrity of Canada's immigration system. The provisions in Bill C-31 deal not only with the push factors but also the pull factors that result in some choosing to use the services of these dangerous criminal smuggling networks.
Finally, the bill would enable the introduction of biometric technology for screening certain applications. Biometrics is perhaps the single most effective way to identify individuals and prevent those who are inadmissible from entering the country. This would strengthen our immigration program by helping prevent known criminals who have been convicted and deported from Canada and who then seek to come back, failed asylum claimants, and previous deportees from using a fake biographic document identity to come into Canada unlawfully.
As fraudsters became more sophisticated, biometrics will improve our ability to keep violent criminals and those who pose a threat out of Canada.
Since we introduced Bill C-31 earlier this year, the government has had the opportunity to hear feedback from many parliamentarians, House committee witnesses and other interested stakeholders on the measures contained in this bill. We were glad to receive this feedback.
We have listened with open minds to it, and — in the interest of creating a more effective piece of legislation — we made amendments to Bill C-31. These amendments, agreed upon in the House, strengthen the bill, and — in doing so — will better protect Canada's immigration system and help us combat the scourge of human smuggling.
Mr. Chair, one of our amendments relates to cessation. According to clause 19 of the bill, someone who loses protected persons status would also automatically lose their permanent residency status. We heard concern from some who read the clause to mean that a refugee could lose permanent resident status due to a situation beyond their control, like a change of country conditions in their country of origin, after having become permanent residents. Some worried that this would make PR conditional for bona fide refugees. Let me be clear: That was never our intention. For the sake of clarity and certainty, we moved an amendment at committee to remove one particular automatic cessation ground from the application of clause 19, that is, when things happen back in their country of origin. With the proposed amendment, where the IRB — the IRB, not the minister — determines an individual's protected person status has ceased due to a change in country conditions, that individual would not automatically lose permanent resident status.
Another amendment introduced by the government relates to the measures in Bill C-31 that concern the mandatory detention of foreign nationals who arrive in part of a designated arrival, a smuggling event, effectively. The bill as originally introduced created a possibility of mandatory detention without review by the IRB for up to a year. The amendments we introduced will result in an initial detention review at the board within 14 days of the arrival date for a designated irregular arrival. If the board is satisfied that grounds for detention exist at this initial review, the IRB must order continued detention and cannot order a release based on a consideration of other factors.
After the initial review, subsequent reviews will take place after six months have passed. It is important to note that the Minister of Public Safety on his own initiative may release an individual from detention if the reasons for detention no longer exist.
These reflect our openness to reasonable suggestions that improve the legislation.
Mr. Chair, to conclude, Bill C-31 will provide genuine refugees with Canada's much needed protection more quickly, and at the same time, will ensure that those who are not in need of Canada's protection are treated fairly and swiftly removed from the country.
I am now pleased to take any questions.
The Chair: Before we go to the questions, I want now to welcome your officials. Starting on my left, we have Jennifer Irish, Director, Asylum Policy Program Development; Marie Bourry, Executive Director and Senior General Counsel; Les Linklater, Assistant Deputy Minister, Strategic and Program Policy; and Michael MacDonald, Director General, National Security Operations Directorate of Public Safety Canada. Welcome to you all.
Senator Jaffer: Minister, thank you for your presentation. We have limited time and I have many questions.
First, I want to commend you for increasing the sponsorship. I have always believed that we need to do more. We got the report today that the situation is pretty dire. I know you will be bringing, from 12,000, now 14,500, and I urge you to look at increasing that more because the worldwide need is great. That is where we should go and I commend you for that.
I also commend you for changing the mandatory detention for children who are 12 going to 16, but I still have challenges with that. I will try to put all my questions to you first.
I will concentrate on the unaccompanied child who comes from what we call an irregular arrival on a boat or in a group. That child does not have papers; I accept that. If we gave mandatory detention, are we not breaching the Convention on the Rights of the Child, where it says the child is under 18?
I will just put all my questions to you. If people do not have papers, are we not breaching the 1951 convention where it says you do not give penalties to people who do not have proper papers? Last, for permanent residents and sponsorship, are we not breaching the 1951 convention which asks us to encourage integration and reunification?
Mr. Kenney: Thank you, senator, for your constructive comments and substantive questions.
On the first point, I would add that while we are increasing by 20 per cent our targets for resettlement of convention refugees, it is important to note that we already do resettle one out of ten resettled refugees globally. We are currently the second highest per capita in terms of receiving resettled refugees, and with the increase we will go to number one per capita, second only after the United States in absolute terms. We have much about which to be proud in our enhanced tradition of refugee resettlement.
With respect to detention, it is important to understand that the rationale for the detention provisions in the bill is that when we have a large number of irregular migrants arriving at once, there is enormous pressure to identify who they are and to assess their admissibility to Canada and their prospective eligibility for asylum claims. Particularly large arrivals, large numbers of irregular migrants who arrive in a smuggling operation do not have documents. It becomes very difficult for our law enforcement agencies, the CBSA, the RCMP and sometimes in cooperation with CSIS to identify these individuals and determine whether they constitute a security risk to Canada, their admissibility and so forth. That is why we believe we need an enhanced period of time within which to identify these individuals and ensure that they receive the process contemplated by our law.
We reviewed the original 12-month proposal and realized in consultation with CBSA that we could do that work in a shorter period of time. We feel that the 14 days and then 6-month detention reviews at the IRB are reasonable.
With respect to children, I would point out, senator, that IRPA has always contemplated and our system has always included detention of minors who are, with parents, facing removal, for example, or facing a flight risk. This is not a new power to include minors prospectively in immigration detention. This is normal in every other immigration system I know of in the developed world. In fact, with the amendments that we have made clarifying that minors under the age of 16 will not face automatic detention if they arrive in an irregular designated event, our provisions will be far more liberal, if you will, than those of many other countries, such as Australia and the United States.
The provision would say that if a child under the age of 16 arrives in a smuggling event, they would be released into custody of the competent, provincial child welfare agency which may, in turn, release them into the custody of other family. If the parents want to maintain the children in a family detention centre, they would be welcome to do so.
The Minister of Public Safety would also have the power to release people if there was no longer a reason to maintain them.
Therefore, we think there are all sorts of safeguards to ensure that children are not detained against their interest. In all cases, the child's interests will be a central consideration.
As far as breaking the Convention on the Rights of the Child, no, I would say we are not doing so any more than we do currently and occasionally in the cases of having to detain minors when they are part of a family unit that is facing removal or that constitutes a flight risk. All of these detentions are reviewable by the IRB.
Are we violating the convention with respect to not imposing penalties on asylum claimants? I do not believe we are. I do not believe that immigration detention constitutes a penalty. I reject the characterization of some people that immigration detention constitutes a form of imprisonment. It is not. People can leave immigration detention any time of their own volition, if they are willing to leave Canada. Practically, people who have a well-founded fear of persecution in their country of origin may not want to leave Canada and go back there.
However, as a practical matter, many of the asylum claimants who came in the two more recent and high-profile smuggling events had visas for other transit countries or were living in India and could go to many other countries for which Sri Lankan nationals are visa-exempt. Therefore, the notion that people are imprisoned in immigration detention is specious. They can leave and choose to go elsewhere.
Finally, in terms of the five-year bar on permanent residency and family sponsorship privileges for protected persons who come in an irregular event, I believe this is the most important element of the bill in terms of dissuading individuals from committing to pay smugglers up to $50,000 or $60,000 to come to Canada. We are seeking to change the business model of the smuggling syndicates that are able to charge an especially high price to smuggle people to Canada. The going price to go from Southeast Asia to Australia is $8,000 or $9,000. The going price to come to Canada is in the range of $50,000. We need to reduce that price point.
We believe that removing or delaying for five years the privilege — not the right — of family sponsorship would change the economics for many of the prospective clients of smuggling networks. Hopefully, then, if they want to come to Canada, they would seek to do so in conventional ways, either by going to the UN in their region to seek regional resettlement alternatives or by applying to immigrate to Canada in the normal fashion.
Senator Munson: Thank you, minister, for being here. I would like to follow up on Senator Jaffer's question on the Convention on the Rights of the Child. We have done extensive studies, and we had unanimity in the Senate, both Conservatives and Liberals, on the idea on the conception of a national children's commissioner. With these detentions of 16-to 18-year-olds and younger, would it not be a grand and opportune time to initiate a commissioner similar to what is in the United Kingdom? That is the first question.
I am curious as to why you abandoned the advisory committee on the safe countries of origin. It became clear during the house testimony that detainees are put into provincial prisons. I did not follow the testimony as closely as others, but they are being detained with convicted criminals. Therefore, I am curious why you have chosen to exclude this from your narrative regarding how refugee claimants and immigrants are being detained. I think you likened detention centres to motels. There they are. When these places are full, they end up being transferred to maximum security prisons. Why have you chosen not to admit this and instead to perpetrate the idea that detention centres are akin to hotels?
Mr. Kenney: The detention centres run by the CBSA are equivalent to hotels with a fence around them. I invite the committee to visit the one in Toronto, which is by far the largest CBSA detention facility in Canada. I think it was a budget hotel acquired by the government.
The rooms they stay in have double beds and televisions like in a hotel. There are a cafeteria and a playground for children. It is literally a former hotel with a fence around it with locked doors.
It is true that when there are capacity problems, sometimes detainees, particularly those who are deemed as higher flight risks or who may constitute security risks, are sometimes put into provincial remand centres. They are not maximum security prisons; they are provincial remand centres, which basically tend to be lower-security holding facilities for criminal purposes. However, we do have CBSA detention facilities in Toronto, Montreal and Vancouver.
With respect to the advisory committee, we have decided to streamline the process for designating countries from which nationals will get an accelerated treatment in the asylum system because, since Bill C-11, the Balanced Refugee Reform Act, was adopted in the last Parliament, we have seen — as I mentioned in my opening statement — a huge and growing wave of unfounded asylum claims, particularly from democratic countries of the European Union. We need flexible tools to respond quickly to emerging waves of unfounded claims. We looked at the process for the advisory committee and realized it could take a long time to work a designation through that committee, and we need sometimes to be able to respond quickly.
I will give an example. Many senators have advocated that we lift the visa requirement on citizens of the Czech Republic. If we were to do so right now and receive the same wave of unfounded asylum claims we have had in the past, both in 1995 and 2007 following visa exemptions, we would have a serious problem on our hands. However, it would take months to work a designation through the system.
In this case, under Bill C-31, the minister would probably be able, based on numbers, to prospectively designate the Czech Republic to help deal quickly with an emerging wave of asylum claims.
Finally, with respect to a national children's commissioner, I had not heard of that idea. It sounds like an interesting one. I would be happy to look more closely at that. I would only point out that the detention of minors has always been a standard feature of our immigration law; it is nothing new in that respect.
Senator Munson: I do not know what rate they are getting at the budget hotels — weekend rates, or special rates.
Mr. Kenney: It is expensive, actually, for taxpayers. It is $150 a night.
Senator Munson: I understand that. It is part of the business you are in.
The issue is that they end up in maximum security prisons many times, with children beside convicted, hardened criminals. Is that the right thing to do?
Mr. Kenney: I reject that. I would be happy to refer to the CBSA. I am not aware of situations where children have ended up in maximum security prisons.
Senator Merchant: Thank you, minister. I know that you work very hard, and I have had very good dealings with your department, so I want to compliment you on that.
To follow along, there has been some concern now with your discretion to designate the countries of origin. What criteria do other countries, such as the EU or Australia, follow in designating these countries? Maybe you could give us an idea.
Mr. Kenney: We have studied that.
First, I will back up to say that a fast-track for claimants coming from countries "not known normally to produce refugees" is a pretty standard feature of the asylum systems in Western Europe, for example. However, the process for designation of those countries is different in each country. In some cases, it is a matter of ministerial order. In other cases, they are presented to a parliamentary committee. Generally speaking, though, within the context of the Dublin Accord and the Aznar Protocol, all asylum claimants coming from other EU countries are, presumptively, on their fast-track list. Basically, all the 27 member states treat claimants coming from the other 26 states as fast-track claimants.
Senator Merchant: There is also a suggestion that there may be some cuts to the refugees' health care. Can you elaborate on that?
Mr. Kenney: Since the 1950s, there has been a program called the Interim Federal Health Program that initially provided basic emergency care essentially for resettled refugees at that time. That has expanded and grown significantly to the point where we are now spending over $80 million a year on a program that provides better health benefits to asylum claimants and resettled refugees than Canadians receive from their provincial health care programs. We are re-scoping the program to ensure that there is equity and fairness in health benefits so that the vast majority of asylum claimants and all resettled refugees will, as of June 30, receive this same package of basic health insurance through the IFHP that they would receive from their provincial health care program once they establish residency and qualify. That means we will be removing supplementary benefits that are not provided by provinces to their permanent residents, such as ophthalmological, dental and medically necessary pharmaceuticals.
One other significant change will be that for failed asylum claimants, those whose claims have been rejected, for example, typically at the Refugee Appeal Division, or for asylum claimants coming from designated countries, so-called safe countries, they would receive only emergency care, catastrophic insurance. The rationale for that is that these are people coming from, for example, European Union countries where they have comprehensive health insurance, and we need to diminish pull factors for people making false claims in Canada. Frankly, we do not believe that it is justifiable to be providing health benefits to people coming from developed countries where they already have health coverage.
Senator Merchant: I have a question about the mandatory minimum sentences for the smugglers. If I have a relative who is in dire straits, I might take a chance on trying to help them to get into this country. I would like to have an opportunity to appear before a judge to explain why I did what I did. Let us say that I drive to Mexico and I drive my brother or my aunt across. I have difficulty with any kind mandatory minimum. I would like you to explain to us why you have moved to that stage, please.
Mr. Kenney: The bill defines "smuggling" as facilitating the bringing in of a foreign national to Canada outside of our laws for consideration. That is to say, for payment. That implicitly excludes when this happens on a voluntary basis. Could I have legal counsel supplement that?
Marie Bourry, Executive Director and Senior General Counsel, Citizenship and Immigration Canada: I will need to get back to you on this point; sorry.
Senator Merchant: That is fine.
Senator Martin: Thank you very much, minister and officials, for being here with us.
I want to go back to the point you made about Canada being so generous in our responsibility to receive refugees and care for the most vulnerable in our world. I thought the numbers were quite compelling, especially when we look at EU claimants from last year and the number compared to how many of them claim refugee status in the United States. South of the border, they are 10 times the population of Canada, yet our numbers are 10 times greater than theirs. Will you speak to how compelling these numbers are and that we are, indeed, carrying quite a weight?
Mr. Kenney: For the past several years we have been welcoming 12,500 resettled refugees on average. These are people living abroad in UN refugee camps or urban slums, like the Iraqis who were living in Damascus, and have fled their country of origin because they have a well-founded fear of persecution; often they were victims of violence, warfare or ethnic cleansing. We have two programs in that stream of resettlement. One is the government-assisted refugee program, where we welcome about 7,000 people referred to us annually by the UN. Typically, the UN is referring to us people who have been dislocated for a long period of time. They do not have a regional resettlement alternative. They are just stuck in a camp for 15 or 20 years. That would be like the Karen Burmese. We have welcomed 4,000 of them. That would be like the Hindus from Bhutan who have been living in Nepal for up to 20 years. We have received 5,000 of them.
On the other side, there is the privately sponsored refugee program, which was formalized around 1979 with the huge movement of Vietnamese boat people to Canada. The UN referred people to us, but it was local churches and community groups that offered resettlement opportunities to help them by raising funds to help cover their costs. We are expanding that program in particular, trying to revive the privately sponsored refugee community with an increase in the number of sponsorship agreement holders. We are also providing an increase of 20 per cent for the refugee assistance program. That is the income support and other integration services that we provide to the government-assisted refugees.
Overall, we are increasing our target from 12,000 to 14,500. As I mentioned before, we already receive one out of every 10 resettled refugees worldwide. There are only a handful of countries in the world that are seriously involved in the work of refugee resettlement. Canada, the United States, Australia and New Zealand would be the top ones. After the U.S., we are by far the highest in terms of absolute numbers, and after this increase, we will be the number one per capita in the world.
Senator Martin: On the asylum claimants and the disparity of the numbers, we have one tenth of the U.S. population, yet with respect to the EU asylum claimants, our numbers are 10 times greater. It was my error in that question.
Mr. Kenney: On that point, if you look at the last six years, on average, we have been receiving about 30,000 asylum claimants per year. A couple of years ago, it was as high as 38,000; this past year it was 25,000. We are consistently in the top three or four developed countries in terms of receiving asylum claims.
The situation is different in developing countries like South Africa, which is very close to Zimbabwe. There are people that just roll across the border. Some of these developing countries that do not have border controls receive orders of magnitude more. However, among developed countries, we are in the top three or four each year in terms of asylum claims, which is peculiar, given our geographical remoteness.
In terms of the European Union, here is what is peculiar. We have received over 95 per cent of the asylum claims made by Hungarian citizens worldwide. We got about 5,000 claims from Hungary last year, and altogether, worldwide, about 5,000 Hungarians made asylum claims. Virtually all came to Canada. They did not go to the United States or Australia and did not make claims in other European countries. We are asking ourselves why, and all of our evidence tells us that it is because we have a number of persuasive pull factors. People who come here get open work permits through which they get a social insurance number and can qualify for federal cash benefits like the low-income GST rebate, the Canada Child Tax Benefit and other federal income support programs. They typically enrol almost immediately upon arrival. In Ontario, they get welfare payments. They get subsidized public housing and they benefit from the Interim Federal Health Program, including the supplementary benefits that Canadians do not typically receive. There is a wide series of benefits that people can obtain, which appears to be a significant factor in that migration.
The Chair: I will put you on the next round.
Senator Callbeck: Thank you, minister, for coming here today.
On irregular arrivals, the minister will have the power to declare whether a group of people falls into that category. Can you give us any idea as to what procedure will be in place here? I assume that will appear in the regulations.
Also, this will be retroactive back to March 2009, so that will include the Ocean Lady and the Sun Sea. Is that retroactivity Charter-proof? How can you designate people who are already here?
Mr. Kenney: On the first question, under the statute, the Minister of Public Safety has the authority to designate irregular arrivals based on certain criteria, such as if the minister is of the opinion that examinations of persons in the group, particularly for the purpose of establishing identity or determining admissibility, and any investigations concerning persons in the group cannot be conducted in a timely matter; or if the minister has reasonable grounds to suspect that in relation to the arrival in Canada of that group there has been or will be a contravention of subsection 117(1) of the Immigration and Refugee Protection Act — that is to say, human smuggling for profit, as to Senator Merchant's question — or for the benefit of, at the direction of or in association with a criminal organization or terrorist group. Those criteria are clear, so this is not just a power that will be applied willy-nilly.
In terms of the retroactive designation, we are trying to send a message to human smugglers — and their would-be customers — that they should not target Canada for smuggling operations. We believe it is therefore justifiable to apply these provisions potentially to those who have already arrived in an irregular situation that meets those criteria.
Senator Callbeck: Is the retroactivity Charter-proof?
Mr. Kenney: The government is of the view that these provisions will be found consistent with the Charter.
Senator Callbeck: You have had legal experts look at this, have you?
Mr. Kenney: Again, the government's view is that all of the provisions in this bill are defensible under the Charter.
Senator Callbeck: I want to ask about the facilities — you have talked about those — that hold the designated foreign nationals. You mentioned Toronto, Montreal and Vancouver, and you talked about budget hotels, too.
Does the government own facilities in Montreal, Toronto and Vancouver?
Mr. Kenney: Yes.
Senator Callbeck: How many will those facilities accommodate?
Mr. Kenney: Perhaps you could pose that question to the CBSA representative who will be following me because they are expert on capacity and whatnot. Collectively, it is in the hundreds.
Senator Callbeck: Regarding this bill, one of the factors in it is to reduce the attraction of coming to Canada by way of human smuggling. In a speech in the house, you talked about advertising the new provisions, and you felt that would have a deterrent effect.
What are your plans for advertising?
Mr. Kenney: The plans would be to replicate what we have done with advertising abroad on what we call crooked immigration consultants. We have placed our YouTube and professionally produced ads on websites that we think have a lot of traffic from people looking to migrate to Canada. We would take the advice of advertising experts in this respect.
Obviously, there are certain source countries where we have had larger problems with human smuggling than others. I think we would focus our advertising efforts there, just to send the message that if you want to come to Canada, please come the normal legal way, get in the queue like everyone else, and that there will be new provisions in place that you should be aware of if you intend to come to the country through an illegal smuggling operation.
Senator Seth: Thank you, Minister Kenney. You are doing a very commendable and wonderful job.
Bill C-31 provides for the collection of biometrics from immigrants. How exactly will these provisions allow us to share or compare information with our allies to monitor the movement of refugee claimants?
Mr. Kenney: We already collect biometric data from asylum claimants. When they make their claim, we collect their fingerprints to ensure that they have not made a claim in the past or that they have not been deported in the past, for example, for inadmissibility, such as criminality. We also have an agreement with the U.S. and with our other five country conference partners, such as Australia, New Zealand and the U.K., to share information on fingerprints from asylum claimants.
In that pilot program, we have actually found people who do asylum shopping. For example, I think there was an asylum claimant who made a claim in Australia and then showed up in the U.K., and because of the fingerprints, they were able to identify that this person was asylum shopping.
The real reason we want to expand the biometric authorities to include applicants for temporary residence visas is because this would be a massive improvement in our immigration security screening, and it constitutes a key pillar of the Beyond the Border Action Plan with the United States.
We are aware of cases where Canada has deported convicted foreign criminals multiple times only to have them come back into the country using a fake documentary identity. I can think of one case where we had someone come back up to 18 times. This person was known by the police as the "yo-yo bandit" because he kept showing up back in Canada over and over again.
The point is that once these people have to submit their fingerprint evidence, we will be able to check those against our database. If they have been deported in the past, then we will deny them a visa.
Senator Seth: I am glad you have chosen to use the biometric system. That is very good.
Senator Cordy: Thank you, Mr. Minister, for appearing today before our committee.
I would like to talk about the smugglers. I think we would all agree around the table that they are pretty despicable human beings to take advantage of those whose lives are at risk in the countries they live in, people who are willing to risk anything to get out of their countries and to spend any amount of money just to escape. However, I am not sure that mandatory minimums work because I do not think any of them actually believe they will get caught.
Would you tell us whether mandatory minimums for human smuggling have worked in other countries? Could you give us examples of whether or not they have worked in other countries?
I know that section 117 of the Immigration and Refugee Protection Act contains serious penalties for convicted smugglers. There are fines of up to $1 million and life imprisonment. How many convictions have we had so far under section 117 of the IRPA? How many fines have been paid under section 117 of the IRPA?
Mr. Kenney: I will have to undertake to get back to you on that. Perhaps the witness coming from the CBSA will know the precise figures.
In terms of your more general policy point, we believe it is important to send a message to smugglers that they should no longer target Canada and treat this country as a doormat.
The RCMP has laid a number of charges against smugglers who have helped to facilitate the arrivals of the MV Sun Sea and the MV Ocean Lady. Typically, though, our capacity to prosecute smugglers is limited to crew members because they end up in Canada. Often the organizers, the ringleaders, are operating outside of the country, usually flitting around between different transit countries. With that said, periodically one of the kingpins does come to Canada.
Another important point to realize is that in the smuggling operations, they need members of the syndicate who are employed by them in Canada because those syndicate members then enforce the debts that have been undertaken by the migrants. The migrants typically, for example in the case of the Sri Lankan smuggling operations, will pay 10 per cent down on a $50,000 commitment. They will pay $5,000 in cash to get into the vessel. They come to Canada and hope they get released from detention and/or get permanent residency through protected person status. They typically move to the Toronto area, where they will be employees of the syndicate, who then presses those people until they pay up. Often they will press them into criminal conduct. CBSA could, perhaps, comment more on this.
This is when the smuggling can turn into trafficking. This is when the smuggled migrant is then facing a debt. By the way, what is the collateral if they do not pay the debt? The family back home who might get a visit from the thugs who work for the syndicate in Sri Lanka or elsewhere. This is a very serious form of organized criminality; therefore, we feel the mandatory minimums are entirely justified.
Senator Cordy: However, are there other countries where mandatory minimums have worked?
Mr. Kenney: I believe there are, and we will get back to you. Public Safety will have those.
Michael MacDonald, Director General, National Security Operations Directorate, Public Safety Canada: There are mandatory minimum penalties from what we understand working with our international allies. For example, Australia has mandatory minimums, as does the United States. According to their domestic criminal law they will have different penalties. Our penalties are similar, but each country has the sovereign right to make its decision.
I want to comment on one point the minister made that has come up a few times. It is the business model of the smugglers themselves. To put it bluntly, they are a criminal network that is around the globe. The more that we have had to deal with smuggling and prevention efforts that government resources are undertaking overseas and here at home, the more we have learned about this; I use the balloon analogy that you push here and it goes over there, push there and it goes up here.
As the minister said, these smugglers are nothing more than thugs and are motivated by money. The people are just a cargo and the conditions they come across in — the 65-day voyage from Southeast Asia — are absolutely inhumane. The smugglers are aware of the efforts that we take; we know that from our prevention efforts and law enforcement intelligence networks. They are aware of Bill C-31 and how we work. The business model is always the key.
Senator Verner: Good afternoon, Mr. Minister. I would like to follow on what my colleague Senator Merchant was saying about the interim federal health program.
A few days ago, La Presse — you are probably also aware of it — and the Washington Post published an article about a Pakistani asylum seeker, saying that children with chronic illnesses, such as asthma, will no longer have health care coverage once the changes are made. They also talked about a pregnant Korean lady who would no longer have health care coverage.
Based on your explanations to my colleague, my understanding is that, in cases of serious illness — pregnancy is not an illness, but it still requires care — those people will continue to be covered. Is that correct?
Mr. Kenney: Yes, but that depends on a number of things. If they are failed asylum claimants under the Refugee Protection Division and Appeal Division, they will be sent back to their countries of origin since they have tried every possible avenue in our system. No one can stay in Canada permanently as failed asylum claimants. I do not see why Canadian taxpayers should have to provide ongoing health care insurance for foreign nationals who do not have the right to be in Canada. We do not even have this obligation towards visitors.
Do we have an obligation to provide supplementary health care insurance to visitors in Canada? No, we do not need to do that. Hospitals and health services will obviously provide emergency services to anyone, but in terms of the supplementary benefits insurance program, if a person is rejected under our just and fair system, they have to go back to their country of origin.
Senator Verner: What will happen to those filing a claim after June 30, for example? They are not yet rejected, but they are waiting.
Mr. Kenney: After the changes take effect on June 30, the vast majority of asylum seekers will benefit from the same program and the same services as Canadian taxpayers through provincial programs. The only exception is asylum seekers from safe countries of origin. There are very few. The vast majority are well-developed countries that have their own health insurance programs, like the European Union countries. Our interim federal health program provides insurance to asylum seekers from safe countries for emergencies, but it is not the same insurance service as the one Canadians get.
We are not required to provide basic insurance to visitors, so why would we have to provide it to nationals from developed countries? Why should we make taxpayers pay for the false asylum claims from developed and democratic countries? That makes no sense to me.
The Chair: We are running out of time and I have to check with the minister about his time.
Mr. Kenney: I can go a few minutes over, but I have to go at 10 minutes past for sure.
Senator Wallace: Minister, as you point out, the issues that Bill C-31 seeks to address are not unique to Canada; other developed Western countries are also dealing with these same issues, whether it is human smuggling, those seeking asylum in countries, or the use of biometrics.
With the remedies or the approach taken in Bill C-31, how similar is it to the approaches being taken by other Western countries? I realize there are a lot of details that you could provide, but I am trying to get a sense of whether we stand out as being quite different from the other Western countries or if we fit in?
Mr. Kenney: This is a very good question. It helps to put these reforms in perspective. The answer to your question is yes, we do stand out. We stand out as having a system that is frankly far more generous and endlessly patient than virtually any other developed country.
I do not mind Canada erring on the side of generosity, but I do not like us being taken for suckers, and that happens too much. About 62 per cent of the asylum claims in our system are found to be people who do not need our protection. As I said, we now have this emerging wave of claims coming from democratic countries where virtually none of the claimants show up for their own protection hearing. However, almost all of them show up to enroll in social welfare and other benefits.
You can draw your own inference from that; I know Canadians do, and they think there is something wrong with it. We are so generous and respectful of our obligations under the UN convention on refugees and the Charter that we will allow every asylum claimant — regardless of which country they come from or the means of their arrival — access to the same high-quality decision in front of an independent decision maker who has been highly trained at the quasi-judicial IRB in a hearing that is consistent with natural justice, due process and the Charter of Rights and Freedoms.
If they can demonstrate they have a well-founded fear of persecution then they will get protection in Canada; they will not be sent back to their country. We will absolutely, in every instance without exception, respect our obligation of non-refoulement of bona fide refugees. Anyone who suggests otherwise is engaged in demagoguery.
I read some of these articles suggesting that we are going through a period like the Second World War where Canada refused to even allow Jewish refugees to land in our territory. That is outrageous slander against Canada's generosity. No one will be barred landing in Canada. Even if they are coming in in a smuggling operation and even though, according to polls, most Canadians would like us to turn around such boats, we will do not so because we have a humanitarian obligation to offer protection to people who need it.
At the same time, what we try to construct here is a balanced approach that also says to the false claimants, "We will send you home after you have had your chance to our legal system relatively quickly."
How does it line up with the other systems? Compared to the Australian, U.K. and U.S. systems, the systems of other liberal democracies that are as respectful of human rights as Canada is, our system will continue to be the most generous.
Senator Wallace: You earlier stated clearly that Bill C-31 would comply with the Charter of Rights and Freedoms. I think as well you made mention of Canada's obligations under the various UN conventions and protocols. I just want assurance that your department feels comfortable that we comply with those protocols and conventions.
Mr. Kenney: The core undertaking in the 1951 refugee convention is non-refoulement — that is to say, a state party to the convention will not return to a country a national who has demonstrated a well-founded fear of persecution. We will absolutely and without equivocation respect the non-refoulement obligation. The key obligation under the Charter, as defined by the Supreme Court in the 1985 Singh decision, is that asylum claimants will get an oral hearing in front of the competent decision maker on an asylum claim where credibility is at issue, and we absolutely respect that Charter requirement as well.
Senator Lang: I would say most Canadians really do want to see our immigration system tightened up to some degree and still be as generous as it has been in the past, but with some rules that are enforced. I think we are heading in that direction. My question has to do with the visa requirement that you referred to a number of times, for the Czech Republic in particular and I believe Mexico is the same. Once the provisions in Bill C-31 are implemented, are we looking into the future where we will not have to require the tourism visa for coming into the country?
Mr. Kenney: I hope so. We have been clear that we hope to get to the stage where we can reconsider a visa exemption for Mexico and other countries. Since coming to office, our government has provided I believe nine visa exemptions to different countries, and we in principle prefer to have visa-free travel and movement of people. It is good for commercial and cultural ties, et cetera. However, I could not in conscience recommend a visa exemption for Mexico, unless and until we are confident that our asylum reforms are working and dissuading large numbers of false claims. We had a problem where, before we imposed the visa on Mexico in the summer of 2009, Mexico was representing the largest number of asylum claims ever in our system. By orders of magnitude, we were getting up to 1,500 claims a month, of which 90 per cent were deemed unfounded by our fair and generous system.
We are hopeful that these changes will allow us to have greater confidence that our system can deal expeditiously with false claims, thereby sending a message to those who organize waves of false claims that they should not target Canada. Once we are in that position, hopefully several years from now, we will be able to go back to the drawing board on the visa.
Senator Seidman: Minister, you said that all EU claims are abandoned, withdrawn or rejected?
Mr. Kenney: Almost all. The written statement was erroneous; it is about 95 per cent.
Senator Seidman: I think you have spoken to that to a certain degree, and it is rather stark in its explanation to us. There has been a lot of criticism about the designated country aspect. Will there be objective criteria, quantitative or qualitative criteria, in order to decide upon what countries should be designated?
Mr. Kenney: I ought to have mentioned that. It is not simply a matter of ministerial discretion. We propose in the bill that countries from which at least 75 per cent of claims are abandoned, withdrawn or rejected by the IRB, or countries from which at least 60 per cent of claims are abandoned or withdrawn, will be considered for designation for the accelerated treatment. Similarly, there will be a consideration of what we call qualitative factors, such as countries with an independent judiciary, that are democratic and generally respectful of human rights, and allow the free operation of non-governmental organizations and so forth; those will be qualitative factors considered as well.
While we are doing away with the rigid and time-consuming advisory committee that was originally anticipated in Bill C-11, we are not necessarily doing away with consultation. The minister and officials will presumably consult with outside authorities, with NGOs. We reserve the right to consult with the United Nations and with parliamentarians on the designation process, but if we need to respond very quickly to an emerging wave of false claims, we have the authority to do so under the amended designation process contemplated in Bill C-31.
The Chair: Do you have any final comment, minister?
Mr. Kenney: I thank the committee for your patience and your thoughtful questions. I am sorry the time is limited. I can see there are many more question. Officials will be available in the next hour. If you have additional questions for me, I would be happy to follow up in writing. I am happy to always be accessible to your committee, Mr. Chair.
The Chair: On behalf of the committee, I want to thank you, minister. I want to thank my committee members because every member of the committee got to ask a question. On the important issue and in this short time, that is really something we should be very pleased with in this meeting and your openness. Thank you.
We will welcome Mr. Hill to the table in the minister's place. As that is occurring, colleagues, there were two questions that were asked of the minister and he referred to the possibility that Mr. Hill might be able to answer those. With your permission, I would ask that we put those questions first. One was from Senator Callbeck and the other was from Senator Cordy. If that is acceptable to senators, then I would turn to Senator Callbeck first.
I welcome Peter Hill, Director General of Post-Border Programs, Canada Border Services Agency.
Senator Callbeck, you had a question that had a specific detail that the minister said might be answered by Mr. Hill.
Senator Callbeck: I am trying to find it.
The Chair: I will then turn to Senator Cordy.
Senator Cordy: My question goes back to mandatory minimums. Section 117 of the Immigration and Refugee Protection Act contains serious penalties already, $1 million in fines and life imprisonment for those who bring in 10 people or more. How many convictions have been made under section 117 of the IRPA and how many fines have been paid under section 117 of the IRPA? Have mandatory minimums for human smuggling been effective deterrents in other countries? The minister and one of the panel members talked about Australia. We hear often about the Australian model, yet the Australian Minister of Immigration, Chris Bowen states:
We already have the toughest mandatory detention regime in the Western developed world, yet people still come to Australia . . .
So I don't think mandatory detention should be seen as a deterrent.
It appears that while Australia certainly has mandatory minimums, the minister does not feel it is working.
Do mandatory minimums work, and could you give examples? What have we had so far in terms of convictions and fines under section 117 of the Immigration and Refugee Protection Act?
Peter Hill, Director General, Post-Border Programs, Canada Border Services Agency: I will undertake to provide to the committee some information that I have available this afternoon. I will ask my colleague from Public Safety Canada to help, and I would also be happy to follow up to provide any additional information I am not able to provide today.
With respect to the Ocean Lady and the Sun Sea, the RCMP has charged four migrants from the Ocean Lady for people smuggling. With respect to the Sun Sea, the RCMP has charged three migrants from that vessel as well as three additional individuals who were cooperating with those three but who were not themselves migrants from the vessel.
There have been a number of charges under section 117 of the Immigration and Refugee Protection Act, but unfortunately I do not have those statistics with me. I will be happy to provide those to you to give you a more comprehensive picture.
With respect to mandatory minimum, the intent, as my colleague and the minister previously have mentioned, is to punish those who are responsible for undertaking that criminal activity. I am not an expert on the extent to which they have been successful in other jurisdictions, but clearly the intent of this bill is to address that type of organized criminality with the full force of the law in Canada.
I have deferred to my colleague from Public Safety.
Mr. MacDonald: I will add a bit more flavour and take into account the questions from before. One thing you said that struck me is that detention is deterrence. Unless I misunderstood, mandatory detention in Bill C-31 is not about deterrence. Mandatory detention in Bill C-31 is about providing the border authorities sufficient time to establish identity and then move to assessing admissibility. That is the key function.
Challenging in a mass arrival is that it is a mass arrival. When 500, 700 or 800 people show up at the border at once, there are severe challenges for border officials to carry out their mandated duties: establishing identity and admissibility. It is a complex thing to investigate a mass arrival. You do not know who the crew is or who people are. You do not know if they are smugglers. Everyone is mixed in together, often without documentation.
For example, in the case of the Sun Sea, which arrived off British Columbia two years ago, I believe CBSA and other enforcement officials collected over two five-ton trucks of evidence and documentation. The amount of physical evidence that can be collected and the number of interviews and cross-interviews that have to happen are significant.
Finally, Australia is a good place for us to look regarding human smuggling. However, their experience is different from Canada's in the sense that Australia has faced smuggling for many years. Right now, they have an enormous possible spike in the amount of vessels that may come. Due to its proximity to Southeast Asia, where a lot of the smuggling networks are, Australia was experiencing smuggling where a small boat from a fishing village would take 10 people to Australia because the sailing time is short. In Canada, due to where we are positioned, the smugglers generally need to go with larger boats and more numbers to try and make their business model profitable. In Australia, that is not necessarily the case.
Therefore, while Australia may receive two or three boats a day — or eight boats a week — that is not the experience here. We do have differences from the Australian model, and some of the Australian comments about effectiveness are about their particular prevention efforts based on the business model they face.
Senator Cordy: Someone on the earlier panel said the detention centres are located in Montreal, Toronto and Vancouver. What happens to immigrants who land in Halifax, which is a port city and almost totally surrounded by water? Where do they go?
Mr. Hill: The CBSA has contingency plans in place in the event of a mass arrival on both east and west coasts. We have drawn on experience with the Sun Sea and Ocean Lady. We would use the partnerships necessary to provide for the detention that would be required, depending on the nature of the arrival.
In the case of British Columbia, we have cooperated with British Columbia Corrections and British Columbia Ministry of Health Services in order to develop those contingency plans. As you pointed out, the CBSA has three immigration detention centres. Our daily population detained at those three, and in cooperation with the provinces across the country, is about 500 persons.
Senator Cordy: Where do we go in Halifax — in the prisons?
Mr. Hill: We would rely on the detention facility in Laval, Quebec where we have 150 places. Toronto is larger: We have 220 places there.
The Chair: If there is additional information with regard to the senators' questions, we will need to receive that by noon on Wednesday.
Mr. Hill: Yes.
Senator Callbeck: I want to thank the witnesses for being here. My question was actually the last question Senator Cordy asked regarding these designated foreign nationals and the facilities for them. You mentioned there are three places in Canada — Montreal, Toronto and Vancouver — and that we have 500 people today that are in those three, plus others, like budget hotels and so on; is that right?
Mr. Hill: Let me clarify and provide some context. The CBSA is responsible for administering three immigration holding centres, which are in Montreal, Toronto and Vancouver. In addition, we have arrangements with the provinces to house immigration detainees. I would say that the provincial institutions are generally housing individuals who are sentenced for less than two years, so these are not maximum security institutions.
As I mentioned, there are about 500 detainees on a day-to-day basis. Looking back over the last several years, generally two-thirds to three-quarters of those 500 are detained in CBSA immigration holding centres. The remainder are cases involving criminality or the higher-risk cases for which our CBSA facilities are not designed.
We are housing a relatively small part of our population in cooperation with our provincial authorities. We are mindful of our domestic and international obligations to ensure that immigration detainees are housed in accordance with immigration procedures, not criminal justice procedures. We take measures in collaboration with the provinces to prevent or at least minimize commingling.
In addition to ensuring we adhere to immigration standards, we have a partnership with the Canadian Red Cross and with the United Nations High Commissioner for Refugees. Both conduct visitations and interviews with detainees to ensure they are being treated properly, in accordance with the laws and international norms.
I hope that is helpful in giving you a context for the immigration detention program. I would be happy to provide further information.
Senator Callbeck: You mentioned the contingency plans. With those plans, how many can Canada accommodate?
Mr. Hill: We have developed our contingency plans using a range of scenarios. We certainly have plans that focus on a scenario similar to the Sun Sea in the order of 500, and we also have contingency plans that look at twice or three times that amount. That is our approach to ensure that we have considered the scenarios that we believe to be possible so that we are as well prepared as we can be to carry out the necessary examinations and investigations.
The Chair: Thank you. I will now go to the list for this round.
Senator Jaffer: To carry on from Senator Callbeck's question, I am only concerned with the unaccompanied minors. Where do you place them?
Mr. Hill: Just to give you a sense of how many unaccompanied minors we have in general, it is in the order of 0.4 per cent. The unaccompanied minors are subject to our starting position, which is detention as a measure of last resort. The requirements of the Convention on the Rights of the Child, as you may know, are codified in the IRPA, section 60, and it provides for the principles that are framed in the way we handle and care for unaccompanied minors. Unaccompanied minors would tend to be housed outside of an immigration holding centre in the care of provincial services. Of course, there may be exceptions for older adolescent minors who have been involved in organized criminality or have been involved in activities that represent security risks to Canada. That category is very small and very exceptional in terms of the caseload that we see.
Senator Jaffer: The minister spoke about our following what other Western nations are doing in terms of what is mandatory. Have any of you heard of how France deals with unaccompanied minors? They have a program called Mineurs isolés, and the maximum that a mineur isolé can be detained is 12 days; there is a Senate study on this that I can make available to you. France does not put them in detention but sends them to a welcoming family, and within 12 days they have a lab that identifies all the papers for the child and then they send them to school.
If you do have unaccompanied minors in a detention centre, do you provide any programs for them?
Mr. Hill: Yes, there is programming, depending on the length of stay in detention, for schooling. There is health programming, so some fundamental programs are available.
The average detention in the last couple of years, and I am talking about the entire population, has been 25 days. In the order of 35 to 40 per cent of our detainees are in fact released within 48 hours, but I would like to underline that those are not the statistics that relate specifically to unaccompanied minors.
I am interested in the Mineurs isolés program.
Senator Jaffer: I will send that to you.
I wanted to ask this question of the minister. There are two designations, the safe countries and the foreign national. Where do the immigration gender guidelines fit in? Are you making sure the guidelines are still being followed?
To you give you a quick example using an easy country, someone comes from the U.K., which we immediately consider a safe country — that is why the minister wants that immediate power — but she has issues of honour killing there. She has come to get refuge here and would obviously come under the quick system, but would the gender guidelines be something that you encourage the board members to follow?
Les Linklater, Assistant Deputy Minister, Strategic and Program Policy, Citizenship and Immigration Canada: As the minister mentioned, the IRB is quasi-statutory and an independent decision-making body, and they have a wealth of evidence and documentation upon which they draw to support decision makers in making cases based on country of origin and type of claim.
Jennifer Irish, Director, Asylum Policy Program Development, Citizenship and Immigration Canada: The board does use gender guidelines in the determination of claims. Although we are shortening the time that claimants have to wait for a hearing, the hearing will be of the same quality as is currently the case. We are not shortchanging the actual hearing at all but compressing the wait time for the hearing to be held.
Senator Jaffer: On the sponsorship and the resettlement, what is happening to the women-at-risk program?
Mr. Linklater: We work with the UNHCR to identify populations that may be particularly vulnerable. We see this increase in the number of government-assisted and privately sponsored refugees for resettlement as an opportunity to be more targeted with the UNHCR to identify populations such as vulnerable women or people in protracted refugee situations who may not be in camps but who are urban refugees, for example, as areas where we might be able to make a sustained difference over a longer-term horizon. If we are able to identify early on to the UNCHR the types of populations where we have matches in Canada through a combination of private sponsors, that would be a population we would want to look at.
Senator Merchant: I have difficulty with the picture of how we handle our refugees. First, I would like to ask why our backlog seems to be increasing; at least, I think we have had an increase. How are you planning to deal with a backlog?
Mr. Linklater: In fact, the backlog at the IRB over the last 20 months or so has decreased by about 20,000 claimants as the board has found some efficiencies. Also, through the Balanced Refugee Reform Act, additional decision makers were named to the board on a temporary basis, and the IRB has managed to reduce the backlog by a third over the course of the last 20 months. With the new approach to the new system, we are hoping to be able, as the minister said, to fast-track individuals from designated countries to a hearing that much earlier and, at the same time, be able to continue to draw down the backlog as we process cases under the new regime.
Senator Merchant: Second, I am bothered by the fact that what we are doing many times is punishing the refugees. You are not able to get the persons who are the instigators in other countries. Once people are here, I look at them differently because they are people who are desperate to get out of a very poor situation. They are people who have worked a long time and have saved enough money to pay smugglers to come out. It is not inexpensive. I look at them not as persons who are coming to take advantage of our social welfare systems. I feel they are hard workers who are coming here to have a better life.
I am an immigrant myself. I was not a refugee, but there are circumstances that drive families to seek a life somewhere else, and that is a very difficult decision to make in any case, to leave behind their families, their language, their friends and to bring their families here.
The refugees are in a much worse situation, and with respect to designated countries of origin, they are safe countries for the majorities, but it is always the minorities we should look out for. Minorities have problems in many places, like the Baha'i did in Iran many times and the Roma are having in Hungary. Are the Hungarians that we mentioned previously the Roma that we are talking about? I would like clarification.
Mr. Linklater: The point you raise around the ability to provide assistance more quickly, as one of the drivers behind this bill, where we are looking at strict timelines to ensure that people who do need protection are not waiting 19 to 21 months for a first level early hearing for the IRB to provide protected person status to somebody who clearly needs it. There is that aspect of the faster timelines, namely, that those who need our protection will not have to wait two years but will get it in a matter of months.
For designated country of origin nationals, as the minister said, and we have been quite clear through the process, every individual will receive an oral hearing in front of the independent IRB. They can make their case for protected-person status based on their own history and how they came to Canada. All of that information will be available to the decision maker, but on a much more expedient time frame for those who do need our protection.
For those who are found not to need our protection, and the IRB statistics around claimants from Europe bear out there are some legitimate claims that are being approved, the vast majority of individuals from the European Union are not appearing for their hearing. For those who do, the IRB has made some positive determinations, which I think speaks to the strength of the system, the fact that an individual is able to make their case in front of an independent decision maker and be accorded status when it is appropriate.
Senator Merchant: Could you give us numbers, then? How many people are we talking about from the European Union that come here and disappear?
Mr. Linklater: We could provide that through the clerk of the committee. I want to make sure you have the appropriate numbers.
The Chair: No later than Wednesday noon.
Mr. Linklater: Noted.
Senator Martin: My first question is regarding your intelligence since the Ocean Lady and Sun Sea, if there have been other cases or situations where we may have had these irregular arrivals, the anticipation of potential incidences in the future and the need for these changes in the bill to address those situations when they do arise.
Could you speak a bit about the development around the world and the work that you have done with your international partners around this?
Mr. MacDonald: That is a good question. Again, that speaks to the business model that we have mentioned a few times.
The Government of Canada has gone out and aggressively taken on a platform to ensure that the next arrival does not happen. That platform is based on three things. One is preventing vessels from departing and arriving here in Canada and working with our international partners, helping with capacity building and investing in known sources and largely transit areas of the world where these operations tend to materialize.
The challenge we are finding is that the smugglers will mount an operation. They will buy a vessel and they will board as many people as they can because it is profit. They may promise to go to Canada, but they may end up changing their minds a day into the voyage, depending on weather and how many people. The business model is always moving. It is difficult to say exactly how many ships were destined to Canada because, quite frankly, they can just change course and go south, north, east or west at any time.
What we know from our prevention efforts overseas and working with key allies is that originally we were seeing just a Southeast Asian network, but the network is now moving around to other parts of the world because they are transit countries. The smugglers also join forces on certain ventures to move people, and then they do not work together again and go work with someone else.
There have been a number of vessels that we believe were destined for Canada, and for various reasons those vessels may have set off for Canada and went somewhere else. The potential is significant. The network is very active.
Senator Martin: With that said, you also earlier talked about the process of dealing with mass arrivals and the complexity of it. I recall reading about all of the legal protocol and the international laws governing that, the operational risks and so on.
As a viewer, when we are watching what was unfolding on television, we think, "Can we not just have them here, identify them and then speed up the process?" It is quite complex. I am curious to hear more about these areas of consideration that make the whole process of identifying and ensuring security as clear as possible. I am aware of quite a few factors involved in this entire process. That is why the time factor is important.
Mr. Hill: The Government of Canada has taken, for some time now — a couple of years — a whole-of-government approach to the issue of addressing the problem of human smuggling under the leadership of a deputy minister level special adviser to the Prime Minister on human smuggling. The leadership that that deputy minister provides to the activities of the CBSA and our colleagues at the RCMP and within the public safety portfolio is critical and has been effective in preventing other ventures similar to the Sun Sea and the Ocean Lady from arriving in Canada.
There have been a number of ministerial press releases or statements that have spoken in some detail about the extent of that success that has been attributed, at least in part, to the collaboration across the public safety portfolio in concert with law enforcement agencies in Southeast Asia and regions abroad.
I would say that the international collaboration between our five-country conference colleagues, as the minister had highlighted, is pivotal to our efforts to stay one step ahead of the human smugglers, which is a continuing problem.
Mr. MacDonald: You raise a good point, as did the minister, talking about interdiction of a vessel on the high seas. What we often hear in our experience with the Sun Sea in particular is, "Why did you not turn the vessel around?" Interdiction on the high seas is largely governed by international law, and states cannot just go and board a vessel; that is piracy. There are certain conditions under which you can board a vessel, flagged, and registered and so on.
In the case of an unflagged vessel, if you do board that vessel, you now own that vessel and whatever is aboard that vessel. That is of concern. What is of most concern, we learned this from the Australian experience, is where the smugglers would actually scuttle, sink or burn the vessel.
When the minister talked about having to safely go out and receive a vessel and then allow the CBSA time to do the processing, that was very much a factor that we had to look at in terms of when a vessel is coming towards us. That alone is a high-risk endeavour, and that alone takes a multi-agency, multi-department effort, in order to safely receive a vessel in our territorial waters.
Senator Lang: Thank you. I would like to pursue this further. In the minister's statement concerning human smuggling, and I will refer to it, he that a series of provisions in Bill C-31 will help to ensure that the actions of human smugglers will not undermine the integrity of Canada's immigration system. The provisions in Bill C-31 deal with not only the push factors but also the pull factors that result in someone choosing to use the services of these dangerous criminals.
I listened to Senator Merchant earlier today speaking with a great deal of sympathy for these individuals. I think we all share that sympathy. At the same time, these are individuals who are paying $50,000, we are told, to get on a rickety boat that may or may not make it. Obviously, they are in the middle class of the particular society they have decided to leave. We still have our normal immigration procedures that they could apply for and get into the lineup, like anyone else; obviously they have some skills, I would think.
If the Sun Sea were to land tomorrow on our shores after this legislation is passed, what would be different? How quickly would it be processed?
Mr. Hill: I think what would be different is the way the CBSA and partners approach the necessary investigations into confirming the identity and the admissibility of those arriving on that irregular arrival.
The changes to the detention regime are such that the CBSA would be given the necessary time to conduct the investigations that we are required to under the law to determine identity and admissibility before an individual is released into Canadian society.
Under the new proposed detention regime, the agency will have a review of detention at 14 days and then a subsequent review after six months and six months thereafter. That period will allow the CBSA to undertake methodical, comprehensive and necessary inquiries to mitigate the risks that are associated with such an arrival. Often individuals arriving as part of a human smuggling venture are trying to conceal their identity and their past involvement in activities that under Canadian law would represent an inadmissibility. The investigations are complex and very time-consuming, which has been noted by the Federal Court in its recent decisions.
What would be different is that we would have the legislative framework to undertake our responsibilities, to admit those who should be admitted and to prevent those who are inadmissible from entering Canada.
Mr. MacDonald: Three other points would be different. In particular, the Minister of Public Safety would have a new power to designate an irregular arrival. That is key to what we are talking about. Second, you will have the criminal law amendments, hopefully making it easier to prosecute the crime of human smuggling and the minimum mandatory sentences that follow. Third, you will have the changes to the Marine Transportation Security Act, which holds ship owners and operators responsible for the use of their vessels, should you one day be in a situation where you could identify the owners and operators. That is the last part that would be different.
Senator Lang: I want to pursue this line. First, we have identified those individuals who were the actual smugglers and we have another 450 that could be designated as refugees. Do I assume at that stage those refugees will be processed and then able to apply for citizenship, or will they be dealt with accordingly in that they have come to this country illegally and, if they do not meet the criteria, will go back to their country of origin?
Mr. Linklater: If the minister designates it as a mass arrival, the individuals deemed eligible would still have access to the IRB. If there are no security or criminality concerns, they would move forward to a hearing at the IRB. If they are, as the minister said, found to be in need of Canada's protection, they will be accorded protected-person status, but for a period of up to five years. During that period of five years they would not be eligible to sponsor their family members to join them in Canada, but they would have access to the labour market, health care and that sort of thing.
For those who are found not to be eligible for referral to the IRB, the minister is absolutely right. We would not return anyone to a country where they had a well-founded fear of persecution. Those individuals would be referred to Citizenship and Immigration for a pre-removal risk assessment. If it was found that they would face risk if removed, they would be in Canada on a temporary status on an unenforceable removal order. However, if conditions in the country changed we would be able to invoke the removal order for those individuals to be returned.
Senator Munson: Speaking of the Minister of Public Safety, was he invited to be here with us? I mean Minister Kenney was here and gave a good explanation of the bill. The officials are giving —
The Chair: Do you have any questions for the officials?
Senator Munson: The officials I know, but where is the minister?
The Chair: The minister is not at the table, so if you have questions for the officials, please proceed.
Senator Munson: We used to have a thing in the Senate: no minister, no bill. However, we had one minister who did a good job.
In relation to the refugee timelines, I think it is 15 days on the basis of the claim form. There are even some from the government side, along with an immigration lawyer by the name of Chantal Desloges, who said in her testimony that 15, 30 or 60 days are completely unworkable.
She said to the house committee:
I'm telling you as an expert who has worked a lot in this system that it is set up to fail. It is impossible to work with. It's not only a problem for the claimant, it's not only a problem for the lawyer, but I can't even imagine what kind of a nightmare this will be for the Immigration and Refugee Board to have to make decisions within that kind of a framework. I don't know who in the department thought it would work, but I can assure you it will not work. Shortened timelines definitely are a good idea, but this kind of a shortened, accelerated timeline is just too much. It cannot work.
You have made strong comments today about how this can work, and I am curious about the resources. For example, are they provided a lawyer right away? Would resources be available to the claimants in this time frame?
Mr. Linklater: Those are excellent questions. In fact, claimants will have access to counsel and to legal aid where appropriate. Ms. Irish will jump in as appropriate, but at the 15-day point for the submission of the basis of claim documentation fact checking will be done at the IRB to ensure that the document is complete. That will determine at what point, and how, the claim is referred to the IRB for the first level hearing by a public servant decision maker. We feel that gives the IRB and the claimant the opportunity to ensure that all of the information required for the claim to proceed is caught early enough in the process to ensure individuals can tell their complete story, but at the same time not so quickly that they would not have access to appropriate legal counsel or support.
That is for claimants coming from making a claim in a port of entry. For those making a claim at one of our inland offices, the timeline is a bit abbreviated, but essentially the individuals are themselves choosing when they approach the government to make that claim. Our assumption is that during the process of pulling together the basis for their claim they would have had access within their community to legal representation or other resources to be able to ensure a complete basis of claim document. Perhaps Ms. Irish wishes to add to that.
Ms. Irish: The only thing I might clarify is that the hearing does not take place after 15 days; that is when the basis of claim is required to be submitted. The hearing for a port of entry claimant would take place after 45 days. As Mr. Linklater clarified, for someone who makes their claim at an inland office it would be abbreviated to 30 days. These are the time frames for designated country of origin; these are the fastest-track claimants.
Senator Munson: Briefly, would there be an increase to the legal aid component? I do not think there is a whole lot of money there.
Ms. Irish: No, there would be no decrease to the legal aid program.
Senator Munson: Increase?
Ms. Irish: No, there will not be an increase. You must remember that there will be less pressure as a result of the appeal; the Refugee Appeal Division will not be available to all claimants, and at the front end we have abbreviated the previous personal information form to a more streamlined basis of claim system.
We will be running the system with the same legal aid as now. There will be an evaluation of the system at the three-year mark, so if there is any pressure on legal aid or anywhere else, that will be the time that we will assess and take proposed corrective action, if necessary.
Senator Verner: I would like to go back to the interim federal health program. Just now the minister explained what comes under Bill C-31. I would like to hear either his or your comments, just to wrap things up. How does our system, this program, compare to that of other countries?
Mr. Linklater: In my view, Canada provides claimants with better health care than other countries. But for a more detailed comparison, we could report back to the committee with a study on the situation in other countries.
Senator Verner: Thank you.
Senator Callbeck: I want to come back to this backlog again. You say thousands of cases. How many exactly?
Mr. Linklater: I believe at the end of March there were about 41,000 cases in the IRB backlog.
Senator Callbeck: There were 41,000. This legislation is retroactive to March 2009. How many cases will be in that?
Mr. Linklater: No, the legislation will not be retroactive. The provisions around human smuggling and designation of mass arrival will be, but not for refugee determination of new claims coming into the system.
Senator Callbeck: I misunderstood that, then.
On the designated foreign national, if a refugee claim is accepted, he or she cannot apply for permanent residence for five years, right?
Mr. Linklater: No. If an individual enters Canada and is deemed to be a national of a designated country of origin and is not part of a mass arrival, they would go to the IRB for their hearing, and if their claim was found to warrant protection, they could then immediately apply for permanent resident status and sponsor their family members.
If an individual comes to Canada as a member of a mass arrival and is found to be in need of Canada's protection, they would be given protected-person status but would not be allowed to apply for permanent residence for a period of five years, and during those five years could not apply to sponsor their family members.
Senator Callbeck: You have answered my question. Thank you.
Senator Jaffer: As always, I have too many questions. I will start with the travel document. I am puzzled why — and I heard the minister wants to discourage, et cetera — but to have someone accepted as a convention refugee and then to not give them travel documents for five years and then not to allow them to sponsor their family members for five years, that is a penalty that we cannot do under the 1951 convention. Explain to me why you would not see that as a penalty.
Mr. Linklater: As the minister said clearly, the obligation Canada has under the convention is not to refoule individuals to countries of persecution.
Senator Jaffer: That is not the whole act. That is not the only obligation. Article 31 of the convention specifically states that you will not penalize refugees; and another part of the article says that you will not not give papers because you want people to integrate into the country. Refoulement is just one of them, not the whole act.
Mr. Linklater: Beyond that, people will have access to permanent residency after five years.
Senator Jaffer: Five years.
Mr. Linklater: That is a privilege under Canada's immigration system. We feel this is an appropriate measure to ensure that individuals think very carefully about whether or not they will use the services of smugglers, as Mr. MacDonald said, to really attack the business model; that there are other ways and means to come to Canada legally and that individuals should be exploring those before they put themselves at risk by using the services of a human smuggler.
Senator Jaffer: You are a very knowledgeable person on this issue. It is 40 years that I have been a refugee. About 40 years ago I came to this great country as a refugee. I am very lucky to be here. Every day I get up thinking I want to have this system have integrity, but when you say that there are other means — I will get emotional — for a refugee to come, we all travel by plane. We know how hard it is without a visa to come to Canada on a plane. How else will a refugee or a desperate person come to Canada if not on a boat?
Mr. Linklater: We do resettle individuals from a number of UN-sponsored camps overseas.
Senator Jaffer: Let us not talk about that. That is 14,500. We talked about how great that is, even myself. However, there 4.5 million refugees today, as the UN has said. We are taking 14,500 of those. I am not talking about those. Those who do not get into that system and want to come to Canada, how else will they come to Canada? We are a water-surrounded area. We do not let people come here on the plane if they do not have visas from those countries. How will they come here?
Mr. Linklater: In terms of speaking to the integrity of the immigration system, we want to be able to manage the flow of individuals to this country. We do still have a significant number of refugee claims, individuals who come by air either with false documents or with legitimately issued travel documents who then destroy them on the way here or who enter the country and after a few weeks or months in Canada show up at a CIC office and claim to be individuals in need of protection. There are a number of unfortunate situations around the world, and Canada does do more than its fair share of resettling UN-recognized refugees. I think the determination system in Canada for those who do manage to make it to Canada through various means is a testament to our generosity.
Senator Jaffer: May I ask one more question?
The Chair: I have one more questioner and that will do it, I think.
Senator Martin: I wanted to focus on the Canadians who are so generous in the taxes that we are paying and the kind of openness that we do lend to the world.
In terms of looking at Canadians who are here, with this legislation, what enhancements of security and in what ways will our system be that much better? I am shifting the focus to the Canadians who are watching and will be carrying the responsibility of what we do.
Mr. Linklater: Sure. I would respond in two broad strokes. In the first instance, the proposed changes here will enhance the security and safety of Canadians by allowing border officials the necessary time to ensure that individuals who show up through irregular means are properly examined, identity is established and appropriate risks identified, and those who do pose a risk to Canadian communities are kept off the streets, essentially.
The second broad benefit relates to those who are in genuine need of Canada's protection. The changes in Bill C-31 are designed to ensure that those who do need Canada's protection will get it much earlier than has been the case with the current system. Those who do not need our protection are dealt with much more quickly as well, and we are able to return them to their countries of origin much more quickly than has been the case to date.
The Chair: On behalf of the committee, I want to thank you all for answering the questions that have been posed to you. I want to thank the committee for getting involved and allowing your colleagues to have the opportunity to pose their questions. I would repeat to our witnesses that we would hope that you will be able to provide additional information on the questions where that was asked for, and that it will arrive to the clerk by Wednesday noon. If it does not, we will assume that it is not available.
For this next panel, we have representatives of the United Nations High Commissioner for Refugees. We have Mr. De Angelis, the Representative in Canada, who I understand will be the making the presentation. With him are Michael Casasola, Resettlement Officer; and Nadia Williamson, Associate Legal Officer.
Welcome to all of you. Mr. De Angelis, please go ahead.
Furio De Angelis, Representative in Canada, United Nations High Commissioner for Refugees: Mr. Chair, honourable senators, I would first like to thank you, on behalf of the United Nations High Commissioner for Refugees, for your invitation to appear before the Senate committee and share our comments on Bill C-31, protecting Canada's immigration system act.
The remarks of the HCR, under national legislation, stem from his mandate under the United Nations General Assembly to provide international protection to refugees and to those under his jurisdiction, as well as to help governments find lasting solutions to refugee problems.
As stated in the statute, the HCR fulfils his mandate for international protection, among other things, by seeking to sign and ratify international agreements for the protection of refugees, by ensuring that they are implemented and by proposing changes. The monitoring role of the HCR is once again stated in section 35 of the 1951 Convention Relating to the Status of Refugees and in section 2 of the 1967 Protocol Relating to the Status of Refugees.
UNHCR recognizes the great value of Canada's commitment to refugee protection worldwide, the challenges it faces in ensuring the sustainability of its asylum system, and the high standards it applies in protecting displaced persons seeking asylum and solutions on its territory. The office also appreciates the constructive dialogue with the Government of Canada.
My presentation today is informed by the amendments introduced by the House of Commons Standing Committee on Citizenship and Immigration during its recent sessions. Important amendments were introduced in the text of the bill, most notably regarding the detention regime. These have alleviated one of the UNHCR's main concerns.
Another amendment to the text that gives certainty to the asylum system in Canada is the non-revocation of permanent residence for refugees on grounds of changed circumstances in the country of origin. This is an important recognition that refugees deserve a durable solution to their plight without fear of being stripped of their legal protection.
In relation to other provisions in the bill, I would like to draw your attention to the May 2012 submission to the house standing committee for the detailed comments provided by UNHCR. Based on those earlier comments, in this brief intervention I would like to make the following observations:
Regarding the designation of foreign nationals as irregular arrivals, asylum seekers are often compelled to resort to smugglers to reach safety. The proposed designation of irregular arrivals could lead to a penalization of those in need of international protection. With regard to the grounds for designation as an irregular arrival, Bill C-31 may create two classes of asylum seekers and refugees in Canada based on the designation provisions. Of particular concern is the designation for operational regions. The consequences of the designation include more restrictive regime, no right of appeal, restrictions on the issuance of conventional travel documents, reporting requirements despite the convention on refugee status, and the five-year bar on regularizing status with its implications for family unity.
In this context, the UNHCR's executive committee has underlined the need for family unity to be protected. From a non-discrimination point of view, UNHCR has regularly pointed out the problems associated with differentiated treatment of asylum seekers and refugees, depending on the mode of arrival, as well as the significance of effective remedies being available through an appeal process that offers substantive review, both in facts and in law.
Regarding designated country of origin, UNHCR does not oppose the introduction of a designated or safe country of origin, at least so long as it is used as a procedural tool to prioritize or accelerate the examination of applications in certain situations. The designation of a country as a safe country of origin cannot, however, create the presumption of an absolute guarantee of safety for all nationals of that country. It may be that despite a general condition of safety in the country of origin, for some individuals the country remains unsafe. The UNHCR's written submission makes a number of suggestions for ensuring the adequacy of such designations.
Regarding the restriction of access to asylum on criminality grounds, asylum applicants should not be considered inadmissible unless the individual concerned has already found effective protection or access to a fair and effective asylum process in another country.
Regarding shortened time limits under the new asylum process, efforts by government's authority to decide applications in a timely manner are appreciated. Overly restrictive or very short time frames in the context of a sophisticated asylum process can, however, in UNHCR's experience, lead to increased rates of abandonment and a rise in the number of unrepresented claimants. Asylum claimants do not ordinarily have the knowledge to navigate the legal system.
Even where a claimant retains counsel, enough time needs to be allowed for applicants to apply for legal aid to engage counsel. The consequence of abandonment are, in effect, a final negative decision, where there is no right to an appeal or access to a removal risk assessment for one year after the negative decision.
Regarding the Refugee Appeal Division, the right to appeal is an important requirement of a fair and efficient asylum procedure. At the core of the 1951 convention is the principle of non-refoulement, whereby those with international protection needs cannot be returned to a place where they may be at risk of persecution. The purpose of a second review through an appeal mechanism is to ensure that errors of fact or law at the first instance can be corrected to ensure respect for the principle of non-refoulement.
Regarding restricted access to pre-removal risk assessment and humanitarian compassionate applications, the Balanced Refugee Reform Act and HNCs are important safeguards against the deportation of persons, while not recognizing refugees according to the law but who are still in need of international protection. In particular, given the many categories of asylum seekers who will not have access to an appeal under the Refugee Appeal Division, the availability of such mechanisms would constitute important procedural safeguards.
Senator Jaffer: Thank you. As you know, Canada has increased its numbers to 14,500 for resettled, and I understand the U.S. has 50,000. Is that correct?
Mr. De Angelis: Yes, approximately.
Senator Jaffer: The number is really 80,000 resettled for this year. The U.S. has done 50,000 and we have done 14,500.
Mr. De Angelis: Yes. That is the approximate number.
Senator Jaffer: I want to look at the issue of penalization, and I want to be very careful. I understand your role is neutral, so if I ask a question that is not appropriate, you can just tell me.
We were looking at the 1951 convention, and in it, as you mentioned, there is the refoulement. Then there is the issue of reunification of the family, then the issue of penalties and then the issue of issuing papers in a reasonable fashion so the person can integrate into the community.
Under the foreign designated national category, we will be detaining the person, even if it is a child, from the age of 16. We will not be giving them papers for five years or letting them reunite with their family for five years. Are we in breach of that convention?
Mr. De Angelis: First, important amendments have been introduced in the bill, and that is very important, especially on the detention regime. Those amendments have really alleviated one of UNHCR's main concerns, which was related to prolonged detention without review. In that respect, that was a very important amendment.
Senator Jaffer: Because others may be watching this, what do you mean by that? Before it was one year and now it is 14 days and six months. Is that right?
Mr. De Angelis: Before it was one year without review, and amendments have been introduced with a review within 14 days, the second review occurring after six months. This is for designated foreign nationals. This is an important amendment, which we have recognized and appreciate in that respect.
As I said, other elements of the bill still do not fully conform with the guidance and the standards provided by the executive committees with respect to family reunification and with respect to the issuance of travel documents.
This is a very important bill, and I think the key to good implementation of this bill will actually be the regulations and the way it will be implemented. UNHCR will be very close and will be available for advice on the regulations. We are working together with the government to make sure that the implementation of the bill will conform as closely as possible to international standards.
Senator Jaffer: Thank you.
Senator Merchant: Thank you for being here this afternoon.
Are there other countries we can look to and learn practical lessons from? Are you comfortable, first, with the way that our system designates safe countries? Now we know that it is the minister himself who does so, and I am not questioning the discretion of the minister, but is it enough? Transparency is very important; it is important that other people see the system as being fair in the way that we designate a safe country. There are many jurisdictions where political considerations or trade considerations play a role, so I would like to know how you feel Canada fares in the eyes of the international world.
Mr. De Angelis: As I said in my remarks, UNHCR does not oppose the concept or the notion of designated country of origin, as long as this is considered a procedural tool for assisting, accelerating and facilitating the process of asylum applicants. We have suggested certain mechanisms in order to reinforce the designation in that respect, and I think part of our submission was the introduction of a panel of experts, of course. That was one of the recommendations that was submitted. However, in general, the concept is valid and should be used for assisting the government in the processing of asylum claimants for the better, to make it simpler and to facilitate the process when needed.
Senator Merchant: Is this the direction that other countries, the countries we look to, such as Great Britain, Australia, New Zealand and some of the European countries — Senator Jaffer, for instance, gave us an example of what they do in France with youth. Are there other things we should be thinking about?
Mr. De Angelis: It is difficult for me being here as a representative to Canada to comment on the details of other countries' legislation. Of course, there is information that is available, which is collected and compiled.
UNHCR presents comments and has presented comments to the EU CEAS on asylum, which is a compilation of the EU rules and regulations; the same standards apply to those regulations. Besides country by country, the EU member states, as you know, are part of the same system of regulating and trying to harmonize the asylum policy and systems so that UNHCR's comments and remarks are presented to the entire compilation of those rules and regulations. I can definitely provide them to the committee, but not at the moment, with specific details, if necessary. Of course, this will have to come from headquarters and from the representatives of the concerned countries.
Senator Merchant: Do you have an opinion about the mandatory minimum sentences that this bill brings in for smugglers?
Mr. De Angelis: In that respect, I would not go into the details of sanctions for smugglers. In principle, we definitely support a country's efforts to combat human smuggling. At UNHCR, we always say that human smuggling is a globe-wide problem and must be confronted according to the international mechanisms that have been put in place, for instance, the United Nations Convention on Transnational Organized Crime, the Palermo protocol of 2002, to which Canada is party. The international mechanisms are there.
We are saying the reason human smuggling remains and is encouraged at the global level is that sometimes asylum seekers have no alternatives. In particular situations, from being a criminal activity smuggling becomes a way to safety. It is important to distinguish between fighting the criminal activity and the asylum seekers who sometimes are obliged to resort to that activity in order to reach safety. It is possible to make that distinction. That is what we want to say.
Senator Merchant: Thank you so much.
Senator Lang: To follow up on Senator Merchant's question with respect to the provisions for the smugglers and the provisions for mandatory minimums, do I take it that your position is that those who do make the conscious decision to resort to human smuggling and are involved in it should be severely punished?
Mr. De Angelis: No, I do not think I said that. Let us say it clearly: People who leave countries seeking safety as asylum seekers and are obliged to resort to smuggler rings in order to reach safety should be considered, first of all, as asylum seekers.
Senator Lang: I am speaking of the smugglers themselves, the people who organize and prey on these people and put them in situations that are very unsafe and, obviously, are very inhumane.
Mr. De Angelis: Absolutely, we consider that to be a criminal activity. As I said, there is an international dimension and mechanisms that have been put in place in order to combat this activity. I am referring to the Palermo protocols.
Senator Lang: Perhaps I could go in a different direction with respect to a question here, and that is with respect the United Nations, whom you represent. Canada, obviously, is doing its part in respect to dealing with asylum seekers when they come to our country. We try to be as generous as we can and work within the framework and our capabilities of dealing with situations such as this.
What is the United Nations doing as an international organization from the point of view of trying to negate the human smuggling starting at these ports of call? What exactly are you people doing?
Mr. De Angelis: The United Nations is a large system. As you know, it is composed of many different aspects. The organization I represent is the United Nations High Commissioner for Refugees, which is a humanitarian agency created by the General Assembly, particularly on the issues of refugees and international protection.
There are many other activities in the world that are regulated by other processes. As I said, there is an international convention on transnational crime, which is the international response to international crimes. Within that process, which is also a UN process, several protocols have been established, three at the moment, and one of them is combating smuggling activities; another one is combating trafficking; and the third one is on weapons. Those are the elements that the United Nations as a system has put in place. We must always remember that the United Nations is an intergovernmental organization. That means it is a tool in the hands of government. Governments are there within all the United Nations systems and mechanisms to provide guidance and direction. UNHCR itself is regulated and governed by the executive committee, which is a body composed of some 80 countries, of which Canada has a leading role and has the responsibility not only to approve the budget but also to provide the guidance that is necessary.
The United Nations works as well as countries put it into a condition to work.
Senator Martin: Mr. De Angelis, thank you very much for your presentation. You commented about Canada's role and the work that we are doing to ensure that we are doing our part and, in some respects, more than our share.
For the integrity of the system, we have this new legislation. Previously, some of the officials were talking about your office's role in certain oversight partnerships. Would you speak a bit about, for instance, if there were a detention of irregular arrivals, the role that you would play in ensuring that these protocols, conventions and international obligations are being met.
Mr. De Angelis: If I understand correctly, UNHCR has a role in all countries, which derives from its mandate. It is a role of monitoring the application of the 1951 convention. We have been called also the guardian of that convention. This role is accepted because it is part of the convention itself, through Article 35. Countries accept that UNHCR has that role.
In the implementation of that role, I am actually here and having a discussion with you. I am trying to give the experience of now 60 years of work from the organizational points of view in that respect, and the experience that also comes from dealing every day in the field, as we say, and that means on the front line with this particular situation. We always appreciate, of course, working as closely as possible with the government enforcement agencies because when it comes to then providing regulation, writing rules and regulations and implementing them, that is where the value of the law is applied. We always welcome, of course, a close partnership with the government in that respect, as we are having it now.
As you know, IRPA, the Canadian refugee legislation, allows us to monitor the proceedings of the Immigration and Refugee Board. We have continuous interaction with respect to the execution of their work. We appreciated this closeness very much.
Senator Martin: That is very reassuring to me and to all of us around the table, namely, that in the monitoring of your ongoing work in Canada on behalf of the UNHCR, the accountability and the transparency of the overall system will be in full view.
You mentioned earlier that you look forward to the ongoing dialogue with the government and the different agencies regarding how everything will be implemented. My question was with regard to your visible role and the ongoing close relationship that you will have with all of these agencies.
Mr. De Angelis: Thank you.
Senator Cordy: We know there are refugees who seek to come to Canada, to a safe country, and who are leaving desperate situations behind.
In this bill there are planned cuts to the Interim Federal Health Program. This will mean that refugees who have left such desperate situations will no longer have access to essential health care services.
Canada is a signatory to the United Nations convention relating to the status of refugees. We are also signatories to the 1967 New York protocol. As signatories, we have a responsibility to ensure the equal treatment of refugees and those seeking asylum in Canada. That includes access to social services and to health care. Are we breaking our trust if we will not be providing health care services to refugees who come to our shore?
Mr. De Angelis: The changes proposed to the Interim Federal Health Program are not really part of Bill C-31, so that would go beyond my appearance. I am not sure if I should actually go in that direction, given that my appearance here is on Bill C-31. I also know that this is still in transition. The government has not yet completed its work to see how to implement those changes, so it is premature for us to comment.
The Chair: Senator Cordy, to clarify, did you say Canada will be withdrawing all health services?
Senator Cordy: Not all.
Mr. De Angelis: This is part of the federal budget cuts as we understand them.
Senator Cordy: Yes.
Mr. De Angelis: It is not part of the legislation.
Senator Cordy: It is the budget. You are right, it is.
Senator Lang: Chair, I think it is important that the record be clarified here. My understanding of the evidence from what we learned earlier is that these refugees will be given the same health programs that any other Canadian is eligible for. That is my understanding.
The Chair: You can check the record tomorrow, but to try to put it into perspective I think the minister indicated that there are two or three levels of health care service. The basic health care will be brought back to the level provided to any citizen within the province.
Senator Lang: Yes.
The Chair: The issue then gets into supplemental benefits that go beyond that into those kinds of issues. The transcript tomorrow will be available to all committee members. We will clarify that fairly clearly.
Senator Lang: I think it is important for the record.
The Chair: Mr. De Angelis, could you answer some general questions? I very much appreciate your point that you do not want to get into too much comparison of countries, so I will try to ask a straightforward question.
There are other countries that have a designated country of origin policy; is that not correct? I will not get into a comparison of their designations, but there are other such countries?
Mr. De Angelis: Yes.
The Chair: Could you give us an example of such a country?
Mr. De Angelis: Member states of the European Union have that mechanism. That is what I said: Comments that UNHCR provided to the European Union on the compilation of the UN laws on asylum provide already the same comments, because comments are provided on the same standards as we provided our comments to Canada.
In general, we also try not to compare one country against the other. That is a difficult exercise also because in general we have that standard and we like to focus the attention of countries on the existing standards and we never encourage a sort of rush to a minimum common denominator, having one country lowering standards that will have an immediate impact and the effect of all other countries rushing to that low denominator. There is the potential for initiating a vicious circle when we start comparing because there will be a rush to a lowest common denominator, and this is definitely something we would not like to see.
The Chair: No, I appreciate that very much. That is why I did not want to put you in the position of having to make that comparison, just to answer the question based on your earlier presentation that such a designation exists in other countries.
Senator Martin: Knowing that you were in Ukraine before you came to Canada, there was mention of the Roma and how there was a high percentage of asylum claimants from that region. They are a democracy with various social programs in place. Also, I am aware of the European 10-year plan for Roma integration. Having been in Europe, are you aware of this plan and what member countries are doing to uphold their responsibility? The fact that Canada has a huge percentage of the Roma claimants coming to Canada versus anywhere else, it is quite a burden on our system.
Mr. De Angelis: Without entering into the details of the plan that is evolving rapidly, including the fact that it is more than a year since I left that region, the remarks that I made on the safe country of origin applies very much to what we are saying because a European member state may be designated as a safe country but still this does not mean that 100 per cent of the citizens of that country may be by default safe. We are seeing unfortunate, I must say, developments in Hungary with respect to intolerance, xenophobia and racism, which are very worrying. We know that asylum claimants in Canada are also recognized, although not the majority of them. A number are recognized, which gives credit to the fact that also from safe countries there are genuine and sincere asylum applicants who are in need of international protection.
Senator Martin: Yes. The point to further add is the fact that within the European Union and the member states, with such a plan and a focus on identifying and recognizing some of the discrimination and hardships that they face, as a Canadian, I uphold our right to have that balanced approach and to be open and generous as we are but to look at the numbers and say that there are some huge discrepancies, and when the EU membership is already focusing on that, that there needs to be that better balance.
Mr. De Angelis: That is why the designation of country of origin is a procedural tool and must be applied as a procedural tool.
Senator Martin: Yes.
Senator Jaffer: May I ask a supplementary?
The Chair: You may.
Senator Jaffer: Thank you, Mr. Chair; I appreciate your generosity.
We do hear a lot about the Roma and the challenges they have, not just in Hungary but all over Europe. Could you tell us challenges the Romas face in Europe?
Mr. De Angelis: This is a very loaded question.
Senator Jaffer: Answer whatever you can of it.
Mr. De Angelis: You are right, I am a European citizen and in the course of my life I have seen this since the time I was a child. However, I do not think I can really go into details about the challenges.
Senator Jaffer: Would you be able to say that some of them certainly are persecuted?
Mr. De Angelis: The fact that some asylum claimants are recognized as refugees by definition means that there is discrimination that in certain situations amounts to persecution. We can say this because asylum claimants are recognized, in a certain number, as refugees. As I said before, there is an overall need for more tolerance and openness in the European society. I think this is a general comment that I can easily say.
Senator Jaffer: Without pushing you too much, would it be correct to say that some Hungarian people who are identified as Roma are accepted here in our country as being persecuted and are being given asylum?
Mr. De Angelis: Yes, there are a number. I do not want to say the exact percentage because I may not be correct, but a number at the end of the year are being recognized as refugees in Canada.
The Chair: Thank you to Mr. De Angelis and his colleagues for being with us today, and to my colleagues for their questions to you.
We now have two presenters. Since there was not a decision as to which order to go in, I will start with Mr. Kurland, Lawyer and Policy Analyst, to be followed by Mr. Showler, Professor from the Human Rights Research and Education Centre, University of Ottawa. Is that correct?
Peter Showler, Professor, Human Rights Research and Education Centre, University of Ottawa, as an individual: That is correct. I am the director of the Refugee Forum there.
Richard Kurland, Lawyer and Policy Analyst, as an individual: Yes, Mr. Chair.
The Chair: Both of you are appearing as individuals. Now that we are on the proper footing, Mr. Kurland has the floor.
Mr. Kurland: Thank you for inviting me here. I will forgo the traditional intro and overview in light of the expeditious treatment and substantive questioning undertaken earlier today until now by the senators before us. I have been at many Senate hearings over a long number of years. I want to point out that it warms the heart that the parliamentary process digs right to the bone and elicits the information from the witnesses with questions — that I have seen from the back as an observer — that surprised experts in the field.
With that in mind, the overview here is quite simply that there is no perfect legislation that has flowed from a Parliament in my recent memory. This is one of the most controversial areas in Canadian law and one cannot expect perfection. The appropriate balance, however, is drawn; almost everything in the proposed legislation cannot be perfect. There are bumps in the road. That is why we have other controlling institutions, including our judicial system, and our other institution, the fifth estate.
On the whole, I wholeheartedly support the key components, notably the controversial listing of countries — particularly from Western democratic nations in Europe — that have supplied Canada with an inordinate number of refugees, having heard the Honourable Minister Jason Kenney earlier in the day say 5,000 a year; 5,000 from one country, Hungary? That is my line of thought.
You should know in advance, cards face up on the table, that I have issues with detention. Six months, whether it is in a hotel as has been described by some or in a maximum penitentiary described by others, individual rights and liberties are deprived. Under who's say, what circumstances and what are the conditions for release? I am uneasy about that.
What happened — and I will close with this — is that with the proposed legislation, we are elevating the impact of a law resembling the War Measures Act. In the absence of real or apprehended insurrection, we are increasing the potential scope of detention of strangers coming to this land, and that is alien to our Canadian values, historically. I tread cautiously. The government will have the tools to deal with the issues of that day, but until the day comes where mass detention becomes normal in this country, I trust the government.
Mr. Showler: Unfortunately, I must take a contrary position to my colleague. We have known each other for years and he is an esteemed colleague. I greatly admire Mr. Kurland's opinion on many areas of immigration and refugee law. However, today there will have to be a difference of opinion.
First, thank you very much for the invitation to attend. I appreciate it. To speak on Bill C-31, I have provided you with two written submissions. One is from the Canadian Association of Refugee Lawyers, whose membership includes virtually all of the leading academics and most of the leading refugee lawyers in Canada. The second submission is from the Refugee Forum, of which I am the director. The forum essentially studies and researches asylum systems with a view to making recommendations for Canadian refugee policy.
Before I talk about the particular issues, I would like to say that I speak from my own experience. I have been a refugee lawyer for many years, but then I was an Immigration and Refugee Board member for many years as well, and then I was the chairperson of the Immigration and Refugee Board. Finally, for the past 10 years I have been an academic teaching refugee law and researching it. I really speak from personal experience of 25 years of thinking about the business of making refugee decisions, what works and what does not.
I also must say that I am not here with any particular axe to grind, for or against refugees. My allegiance is to the Canadian refugee system, one that will make fast, fair, accurate and efficient decisions.
However, in my opinion, Bill C-31 falls far short of that objective. Very briefly, I will say why. I will have to depend on your questions and your review of the written submissions for the details.
I will briefly refer to the short time limits of the claim process itself, and the designated country of origin list, and make some reference to the designation of group arrivals.
For the time limits, the regular refugee claim will now be 15 days to provide a written document explaining the claim itself, 60 days to prepare for the refugee hearing and then 15 working days to prepare and complete an appeal. That is the essential system. I must tell you that there is simply not enough time for many refugee claimants to meet that standard.
In my view, there will be more unrepresented claimants, more mistakes and omissions in the written stories submitted, more incorrect refugee decisions, fewer appeals and more badly prepared appeals, all because of the lack of time.
For each stage just a little more time would make a huge difference. For example, there are 15 days to file the basis of claim form. Thirty days would be sufficient, which is a difference of only 15 days. Do we really want to set the entire claim process off on the wrong foot to start because of 15 days?
The entire process is too rushed, and I ask why. Why are we rushing? It is true that the current refugee system is far too slow, on average four to six years on the processing of claims, there is no doubt about that, to the point of removal. However, that is not a justification for going to the opposite extreme. By allowing claimants a small amount of additional time, essentially going from seven months to nine months for the process, you would achieve fairness.
The government's justification for shortening the process is to discourage fraudulent claims. I wholly endorse that objective, but there is no practical difference between seven and nine months. Most refugee claimants, whether fraudulent or not, gamble everything to seek asylum here in Canada. They sell their houses, incur debt and use their savings. If they are returned to their homes within one year, returning without a home, without a job, without money, I assure you the second wave of fraudulent claimants will not be coming. You will still get claims, but desperate people who are legitimately refugees will come, whatever the deterrents. Those are my comments on the process itself.
In regard to the designated country of origin list, claimants on the designated country of origin list have less of an opportunity to make their claim. I am speaking about so-called safe countries, but because the country is safe for a majority of people in the country does not mean there is not a minority of people, often particular minorities, who actually are at risk.
The second thing to think about is that their burden to prove their claim is as onerous as any other claimant's. It is not different. However, under their process they receive only 30 days rather than 60 to make their claim. Second, they have no appeal. Third, there is no automatic suspension of their removal while they seek judicial review in Federal Court. This means that a DCO claimant could be removable within 46 days of making their claim. For some claims, undoubtedly with that brief time frame, we will be sending people back to persecution who are valid refugees.
Let me move quickly on to the third group, which is the designated group arrival. My friend partially referred to this. This covers anyone who is a claimant who is within a designated group — all persons. First, there is mandatory detention for at least two weeks and for most of them, practically and probably, for six months. That is the first thing that occurs, unless it is children under 16 years of age.
The claim for most of them will be decided in detention. I promise you that during detention, which is often mixed criminal populations in medium security prisons, it is not easy to prove a claim in those circumstances, particularly for vulnerable witnesses and people who have already been tortured or persecuted before. That is the circumstance.
Next, they do not get an appeal. As you probably are aware, even if their claim is accepted, the two things that happen are, first, they cannot apply for permanent residence or get a travel document for five years. The government was clear that this was an intended punishment to deter them from coming in boats or any form of group arrival. The consequence of this is they will be separated from their families for six to eight years. That is the practical consequence. If those families are able to escape to a third country where they are at risk because they cannot get a travel document, they have no means of providing them with assistance.
This will cause immense suffering to some people, and they will be some of the most vulnerable people. Worse yet, it is not an effective deterrent. If you look at the submission from the Refugee Forum, it will give you all the sociological analysis and statistical data to show that the only country that did a pure mandatory detention program in order to deter claimants was Australia. It was a gross failure, and their senior officials have now acknowledged that was a failure. That is our justification for causing this suffering for these people.
In conclusion, because I realize my time is tight, Mr. Chair, the Commons standing committee heard over 40 witnesses who tried to speak to the problems in the bill. A few dispensed with the whole bill, but most of us tried to point out the criticisms, the errors and the flaws and recommend reasonable alternatives. Out of that only two substantive amendments were proposed by the committee. One was when they realized, in regard to loss of permanent residence, they made a mistake and did not understand their own law.
This bill will damage the lives of asylum seekers. It deserves to be carefully and fully reviewed by Senate. I am asking you to please take the time to identify the flaws in the bill, craft reasonable amendments and return a far better bill to the House of Commons.
If you pass the bill in its present form — I am sorry to say this — you will be complicit in causing immense and unnecessary suffering to people who need Canada's protection. If you do that with only three days of consideration of an immensely complicated bill, then you will have failed in your constitutional duty. That is a harsh thing to say, but I have personally seen the consequences of bad refugee decisions and the consequences of sending vulnerable people to prisons. I feel it is my duty to come forward and point out that you have an important and powerful role in the passage of this legislation. If you pass it in its present form, there will be immense human suffering and you will have had a role in that. I am sorry to say that.
The Chair: Thank you to you both.
Senator Jaffer: Thank you to both of you for your presentations. It is very hard to follow you, Mr. Showler.
Mr. Showler: Did you not understand what I said? I hope that is not the case.
Senator Jaffer: We will study this not for three days but for two days. As a lawyer when you were the chair, you know this bill well. Mr. Kurland and I have worked together. You are both knowledgeable about this issue. I will start off with the issue that bothers both of you and keeps me awake at night: the unaccompanied minor. Let us forget Europe and talk about the Somalian child who will come to our shore. The minister and everybody else here has not talked about the boat. We know that if someone comes by plane and does not have proper identification documents, they can also become an irregular arrival in a group. They can be detained for 14 days and up to six months. The Convention on the Rights of the Child says it has to be in the best interests of the child. Does the detention of a child breach the Convention on the Rights of the Child?
Mr. Showler: In my opinion it does. Detention should always be the last resort, and often it is the first resort. You referred to several things. In terms of the designation of the group, we know that it is virtually carte blanche. We do not know the number or the grounds. However, if there are sufficient numbers, they cannot process them in a timely way, or if there is any form of association or involvement with any criminal organization. Well, excuse me: Virtually everybody who cannot get here with a visa will have to resort to the use of some form of organization that provides false documentation. It will be easy to do that. The concern is the mandatory detention, and there are two aspects. First, there is the two-week detention, which we already know. Unless they have their real identity in their back pocket or their uncle waiting for them with their real identity, they will be detained for six months.
Second, even if parents accompany children, they are still detained if they are 16 years of age or older. Only those under 16 years are not detained. Even there, it will be de facto detention because, as we have seen on the West Coast of Canada, the choice is between staying with your mother in the Burnaby Detention Centre or going with a stranger who speaks a different language you have never heard. Remember, we are talking about asylum seekers where we do not know to what degree they have already been traumatized. Yes, in many ways it violates the convention.
Mr. Kurland: I do not think it is as clear-cut. There is a difference between detention and youth protection. We will not allow a 7-year-old or a 12-year-old or a 15-year-old youth out into the Canadian population unsupervised with no guardian and no protection. The proposed law allows for both the provinces and the feds to work in tandem to protect the life and safety of that child for the duration of the period in custody. It is not a mandatory six-month period. Again, flexibility is built in. The minister testified this morning to the effect that if there is new information or if conditions change, there may be a release of that individual.
I am not undercutting my fundamental point at my uneasiness with a detention of this kind; however, I would like to put numbers around it, and I will close.
We are talking about a mass arrival system that historically has affected 1,000 people over a period where we took in 300,000. With 1,000 people, it was three boats over a 20-year period. I do not anticipate an ongoing issue. It is more sporadic periods that magically time with the anointment of a fresh immigration minister in this country. I agree that the tension is not within our Canadian value system when dealing with the vulnerable and the strangers to this land; but I do not think it is as harsh as has been portrayed.
Senator Jaffer: I had asked the minister about the refugee convention, not providing papers, detaining, not giving permanent residence for five years to the designated foreign national and not allowing the foreign national to sponsor their family after they have been found to be a convention refugee. Are we breaching that convention?
Mr. Showler: Which convention?
Senator Jaffer: The 1951 Convention Relating to the Status of Refugees.
Mr. Showler: That is a more difficult and complicated question. Yes, I know the convention. This is not a debate between Mr. Kurland and me; but unreviewable detention for six months means it is not reviewable. When the largest boat arrived two years ago with 492 people, it represented 2 per cent of the number of refugee claims that year. It is ironic that this incredibly draconian legislation all of sudden was supposed to be a tremendous threat to the Canadian refugee system. With due respect, Mr. Kurland is pointing out how miniscule it is. He is correct in that, but one wonders what is the point of the legislation. With regard to the 1951 convention and your question, one of the principles contained within the UNHCR guidelines, which are neither legislation nor part of the convention and to which we are a signatory as part of the Executive Committee, is family reunification. That is a fundamental, recognized value.
What we are doing here is exactly the opposite of family reunification. I am a parent. I assume that many people around this table are parents. Those families are in one of two locations; it is not just reunification. If we use Sri Lanka as an example, that place is still a hellhole where human rights violations are committed virtually every day. Imagine your family over there not knowing the degree to which they are at risk; you cannot do anything about it, and you cannot go back because you do not have a travel document regardless. It is awful. That is a not a legal term, but it is awful.
Mr. Kurland: I draw from the experience of the gap in family reunification in the Greater Toronto Area from the social segment emanating from the Caribbean. The delay in live-in caregiver family reunification had palpable negative adverse results on those family groups. There is a clear correlation between delay of family reunification and the cost to the taxpayer. A cascade of social problems develops over time. Again, it comes down to what I perceive to be a legislative attack on the business model of mass arrivals and human smuggling.
That is the appropriate political message, and I think it is a fair trait to have on the books until such time as a review in court can consider the pros and cons. Until then, a deterrent is out there.
Senator Lang: I would like to follow up on the question of detention. At the outset, I think it is very important for legislation of this kind because over the years, more and more Canadians were losing faith in the immigration system. We heard stories over and over about how an individual would arrive in this country and take maybe 10 years to go through the system — a system that was failing and did not work. At the same time, we need a system that has a deterrent so that individuals who are legitimate asylum seekers realize that at the other end there will be some responsibilities and the deterrence so that they cannot just arrive, pick up the telephone and move the family to Canada.
No one around this table wants to be ungenerous. We are all good Canadians, and we have all come from somewhere, though it might not be in our generation — it could have been five generations ago. Regardless, we have all arrived in this country from somewhere.
It is important that we realize at the outset that we do have a lineup of legitimate individuals who have applied to come to Canada. They are in a queue, have abided by the rules and are going through the system. On the other hand, we have a situation where we are told that individuals can pay up to $50,000 to get on a leaky boat and risk their lives to come to this country with the understanding that, under the old rules, you would be in the door and would get into the house.
I would say that, in my judgment, this legislation is well overdue. One can argue that 7 days is better than 10 days versus 30 days, and probably with some legitimacy.
I want to talk about the question of detention, which you both have raised. I do not understand how else we would handle things if we have a massive group of individuals coming into this country. How else would we do it other than to detain those individuals in close proximity, so that they can be dealt with accordingly? Otherwise, I would submit you might as well not have a system; you might as well open the door and say, "We will see you in 10 years."
Mr. Kurland: From what I have seen, the driving force is the public perception of a hemorrhaging wound on our sovereignty; we lost control. That cannot be the way we run a system. We gamble the integrity of our immigration program. We put on the line, because of unfavourable public opinion, the historic support for our refugee determination system.
For political communication purposes, yes, something has to be done. Find an alternative. I was unable to find an alternative.
Mr. Showler: I can find lots of alternatives. I agree with you, senator. First, that is why I pointed out that the most effective deterrent is people arriving back in those communities. I mentioned that deterrence did not work; we saw the statistical reason the mandatory detention did not work.
However, you will see reference to it in the submission: There was a paper by Roslyn Richardson, a sociologist in Australia, who interviewed the people who had come anyway who are now very unhappy. They talked about the reason they come. What would you guess would be their principal source of information? It was the smugglers. The smugglers will not be pulling out directives from CIC telling them the consequences.
Second, even ones who were told about mandatory detention did not believe it because Australia is a nice country and it has human rights. They would think exactly the same of Canada.
That is why I say effective communication. You have enough time for six, seven or nine months, but if people return rather than waiting the average of four to six years before coming back, I agree completely that it affects the integrity of the system. However, within one year, if a significant number of people go back directly to those source communities and say, "I am broke, I did not get any work, and I have been sent back," I assure you that will dry up those sources. They will not dry up the people who are desperate. That is the second challenge.
I completely agree about a large arrival — say, a boat of 400. I was the chair when those four boats from China arrived on the West Coast. We had a tremendous logistical problem dealing with that and addressing that in terms of our immigration division. The immigration division does the detention reviews. I hope you all know that the review procedure is 48 hours, then seven days and then every 30 days after that. For a group, I think that is too much review. I would completely support two or three weeks for the first review and then, after that, a schedule that would be more reasonable.
That is not what this legislation does, however. Remember that, for a long time, it was mandatory detention for one year. It took a lot of talking to get them to back off to six months. It is unnecessarily long.
Second, it is referred to in our submissions that there is a major report by a professor on the detention and prison systems of Canada. If it is a large group, there is only capacity for 299 federal detainees across this entire country. Here is what happens: If you get a large group — and this is what happens in B.C. — they go to a landlord. The landlord is the provincial government, and the provincial government has control of that population.
While I agree with Mr. Kurland that the children would be in the Burnaby detention centre, the other detainees — particularly mandatory detention for six months — will be transferred to medium security prisons. First, those prisons are overcrowded. Second, they have staff trained to deal with prisoners. Third, they are put in with a mixed criminal population. Finally, frequently what happens — and what has happened already, but not with groups — is that the detainee does not speak English or French, is not the "right colour" and is vulnerable. In many instances, they put them into solitary confinement, presumably for their own protection. However, the treatment that will happen in medium security prisons for refugees is potentially quite horrific. There is reference to some of that literature in this written submission.
That is not a happy detention place. That is not what will happen. Mr. Kurland, I would ask you to agree with me on this point.
Mr. Kurland: It is not a happy little detention centre. We have left off the intelligence card; much of the justification has been intelligence-related. Look at how many billions have been spent since 9/11 — domestically, internationally — with security and intelligence grids, and memoranda of understanding with other countries and service partners. Is someone suggesting that we cannot identify a human being in less than half a year? I think not.
Senator Cordy: Mr. Kurland, you said we cannot expect perfection in a bill, and I agree with that. As time moves on, we often see things that have to be changed or that do not work that we thought would, or the reverse. However, I do believe that as the chamber of sober second thought we have the responsibility to look at legislation, and if we feel there should be amendments, we have a responsibility to bring those amendments forward.
I think we would all agree around the table that the current system is too slow. However, Mr. Showler spoke about the new time limits in the bill. I have received a lot of emails and letters from people talking about the new time limits. Specifically, they were talking about the 15 days for the appeal. If you are looking at an appeal, you are reviewing all the evidence presented at the IRB. By the way, the IRB recently announced they will no longer provide transcripts, therefore you have to listen to the tape; you cannot get the written transcript of what went on. That is quite time consuming.
You have to look at other documentation that was presented, background materials, and prepare legal documents. The work involved in preparing an appeal would be comparable to a judicial review at a Federal Court. That is what I got from the people who were in contact with me; I kept reading that over and over again.
Yet, for these appeals, 45 days are allowed. Therefore, when I was reading emails from people, some felt that 15 days was designed to restrict access to the appeal procedure. Chantal Desloges, an immigration lawyer who was a witness on the house side, spoke about the 15 days for the appeal process: "Shortened timelines definitely are a good idea, but this kind of a shortened, accelerated timeline is just too much. It cannot work
You briefly spoke about it in your presentation. Could you expand on the need for an amendment in this area to change the new timelines brought forward in this bill?
Mr. Showler: In my written material, you will see the recommendation for 45 days, which is exactly the same as the Federal Court. It is 15 working days, so that adds up to about 21 days.
You left out the most important thing to mention, which is that you need a lawyer. Please do not assume that the lawyer you will get is the lawyer that represented you the first time because many hearings go badly. There are many incorrect decisions, not because of the board member but because there has been poor counsel.
First, you have to find a lawyer, and we already know that the legal aid regimes in Canada right now are very intimidated by this bill. In many instances, they will not be able to provide assistance. If they do, there will have to be a process of seeking it.
Second, 21 working days are for what we call perfection of the appeal. It is not just to make it but it is to perfect it. With the amount of work that has to be done, most fair, reasonable and hard-working refugee lawyers will say that 45 days is just nice but barely adequate to do the judicial review. You are doing the same thing.
You mentioned the other technicality. When this was first proposed, everyone was so aghast at 15 working days, so the board said they would provide a written copy of the transcript with the written decision. At the time, as a former chair, my first reaction was, "My God, the cost. This is no ridiculous." The government will have an incredible cost. What are they doing? They are buying an extra 30 days. It is a classic example of what I am talking about, penny wise and pound foolish. As a result, as I said here, there will be fewer appeals, and far more of the appeals will be badly prepared. We are undermining our own appeal system.
Remember that from Bill C-11, the original bill, if we get into the discussion of balance and perfection, we can go in that direction. However, the particular concern there was this appeal was the justification for this fast process. Remember that a lot of the fast process is at the back end of the system: no pre-removal risk assessment for a year, no humanitarian application.
I wrote a report before Bill C-11 that the government accepted, and what I talked about was fast, fair and final. Good first decision, good appeal and then very prompt removal. However, if you have 15 working days, I am sorry, there is no one in this country who understands refugee decision making who would say that will yield a good appeal. It means poor front-end decision making and then fast removal. That is why I say that will end in our sending refugees back to persecution.
Mr. Kurland: What we expect is Ferrari speed for a moped budget. History has the lesson here. Back in 1989, it was the credible-basis hearing system with the Honourable Minister Flora MacDonald, who had the same challenges and brought in a functioning, expeditious system for one reason only: The federal government directly paid the refugee lawyers to do the cases within a certain timeline. Guess what? Standards were achieved. After year one and year two, time moved on, the federal budget diminished, that flow of funds diminished and the processing times ballooned and went out of control. If you want Ferrari service, be prepared to pay for it.
Senator Cordy: What about the comments I am hearing that people are feeling this is a way to restrict access to the RAD, that it is so fast and there is so little time to get an appeal together, that people will say, "I cannot do it," and the government is doing the end runaround saying, "We will have fewer appeals"?
Mr. Showler: That is what I am saying. That is what will happen; there will be fewer appeals. First, many people will not be able to afford a lawyer, and second, because of the timelines, lawyers will decline. People come in and have five days to prepare and they say, "I am sorry, I am unable to do it." There will be fewer appeals.
However, I am not sure I agree with a Ferrari. I think the analogy of Ferrari versus mopeds is a little extreme.
This is important for you to know: The government has frequently referred to the Australian government system and some of the European systems. For example, there was mandatory detention in Australia, but guess what? They also had available lawyers provided for by the government. They do have this designated country of origin list, for example, in the Netherlands and in most of the European countries. Most of them also provide counsel.
Where Mr. Kurland and I fully agree, and I have been begging the government to do this for years, it may look like an up-front expense, but if you have reliable counsel — and I am not talking about private lawyers. I would be content with clinics; there are several models — you would have a far faster and efficient system and get rid of all the consultants. Frankly, speaking of my own sister and brethren, we would get rid of the lousy lawyers and it would be a faster and more efficient system. I agree with that.
The way it is now, there are not many people who will have access to that appeal.
Senator Cordy: Thank you.
Senator Martin: I think the one thing we all agree on is looking at the integrity of the whole system and doing what is best for our system in Canada.
I am not a lawyer, and I commend both of you for your expertise and viewpoint. When I looked at the legislation, I was looking at it from the point of view of a tax-paying Canadian looking at irregular arrivals, of which, you are right, in the last 20 years there have not been that many. However, when that incident happened in 2010 and we saw it play out on television, it was overwhelming, even for the viewers, to understand what was going on. In the same way, we do not understand the process that you must undergo to ensure that you provide good counsel for your clients.
I am thinking about the officials that were sitting here and all of the legalities and the responsibilities they need to address and how complex the system would be to ascertain identity and admissibility, et cetera.
Looking at this bill, we know there is a gap in the system, and we anticipate that it could happen. Therefore, coming up with a mechanism and a regime is important. I applaud the government for that.
However, with respect to the concerns regarding detention, we also heard the officials talk about the detention of children being the last resort. The best interests of children would be in mind. Looking at the numbers they provided us, unaccompanied minors are 0.5 per cent of what we have received thus far. On average, 25 days in detention, and 35 to 40 per cent of all detainees were released within 48 hours. With respect to these scenarios you are providing, I think we need to do those things in order to ensure we keep everyone accountable.
My question is specifically about your expertise as lawyers. I understand that we are replacing the information-gathering interview, which was much more cumbersome from the BRRA, with the basis of claim documents, which is supposed to be simplified. Would you speak to how much more simplified it is or what the difference would have been between the two?
Mr. Showler: Sure. First, I do not just speak as a lawyer. Remember, I was the Chair of the Immigration and Refugee Board. I was in charge of these decisions. To me, that is important because I think about that perspective.
The issue is one of information gathering. For the average refugee member, you need to have the information because you want to have figured out the issues. Ordinarily you send back questions and identify the issues before the hearing because hearing room time is three hours. You want to complete the hearing in three hours; otherwise, if you have an adjournment, it is a tremendous wastage of time. You really need the relevant information. If you do not have the relevant information or half of the information, I can assure you, the great concern of this interview under the previous system is that it will be horrendously expensive.
Senator Martin: That is not happening. Is that correct?
Mr. Showler: That is not happening. The problem is this: If you do not get the correct information at the beginning, then what happens is you cannot form your opinion of the claim accurately.
Second, and this has happened to me in hearings, you go off on wild goose chases because you do not have the relevant information. If the reason you do not have it is the difference between 15 and 30 days, that is what I am questioning. You want to have time to get the correct information. It takes five to ten days to get a legal aid lawyer and an interpreter.
I have written an entire book on this. Half of the time vulnerable complainants, even fraudulent ones, do not know what is going on. Fifteen days is not sufficient time to find someone to assist them to present the correct, relevant information in order to start the judicial process.
Senator Martin: I understand that the IRB can make such adjustments on a case-by-case basis and will be able to under this new legislation, that it is not entirely black and white.
Mr. Showler: It is pretty black and white, but there can be written applications for an extension of the 15 days. I am telling you that they are having enough trouble finding a lawyer to prepare the claim let alone make an application for extension. Some lawyers have said they will do it in every case. At that point the whole system will run down.
Again I question, what is the magic of the extra 15 days? I linked all of this to the concept of deterrence. What do those officials say they have gained? I know all the officials you are talking about, and they have never made refugee decisions. Because board members are judicial appointments, they have not had the opportunity to comment on whether those will be helpful.
Mr. Kurland: I am convinced about that extension in terms of time for preparation. Either properly resource counsel so that counsel has the time to listen to the individual story or add days to the process.
Senator Seth: Thank you for being here, Mr. Kurland and Mr. Showler.
As a medical doctor for many years in Toronto, I have seen how certain refugees abuse the Canadian health care and welfare systems, costing taxpayers millions of dollars a year.
What kind of conditions or undertakings will immigrants and their sponsors have to follow under Bill C-31?
Mr. Showler: Not refugees but immigrants? I am sorry; I do not understand the question.
Senator Seth: Can a refugee be sponsored by relatives? If so, how? What will be their responsibility?
Mr. Showler: They cannot be. The refugee class is a specific immigrant class. In order to be in it, you have to be recognized as a refugee overseas and resettled, which is the resettlement program, or you arrive in Canada and prove that you are a refugee. It has nothing to do with sponsorship from relatives.
Senator Seth: This has nothing to do with refugees?
Mr. Showler: It has nothing to do with refugees. There are many tiny bits of Bill C-31 that have to do with other issues, and this is one of them. This is already in the law and this bill is making it more certain. This is for persons within the family class. It is not just relatives; it is family class relatives who sponsor their relatives. It could be their children under age 22; it could be parents.
Often you give an undertaking that you will support them instead of their receiving social assistance. This holds sponsors accountable. It is a tiny technicality on immigrant sponsorship that has been slipped into this.
Senator Seth: What happens if people who have relatives in Canada come here and claim to be refugees?
Mr. Kurland: If a person claimed refugee status but had an alternative option under Canada's immigration system, they did not have to play the refugee card. They could have been sponsored as a parent, grandparent or dependent.
Senator Seth: In my practice I have often seen people claim refugee status while they have relatives here. They want to be sponsored. What happens in those circumstances?
Mr. Kurland: In those circumstances the dividing line is pink or blue outcome. The person was a refugee, got their permanent residence, and it stops there. It is food for thought, though, on future policy.
Mr. Showler: There are instances where people who arrive have relatives but the relatives are not necessarily sponsoring them. Remember, it must be a close family relationship for sponsorship.
Senator Seth: I am talking about brothers and sisters.
The Chair: We are getting away from the central issues here and I would like to pull us back to that.
Senator Wallace: Mr. Kurland, as you pointed out in your opening comments, no system is perfect. That does not mean that we as legislators do not strive to find perfection. It is probably an elusive goal, but we have to push ourselves and push the system to get the absolute best we can.
If I understood correctly, you believe that Bill C-31 is an appropriate balance of the rights and obligations of those seeking refuge in this country with the wishes and desires of the Canadian public and the Canadian government.
You touched on a number of issues in your presentation. In saying that you believe it is an appropriate balance, can you give us some examples of the major issues that you see requiring balance and that you believe have been balanced by Bill C-31?
Mr. Kurland: First, Bill C-31 addresses the intake issue. I differ with many colleagues across the country in the approach that the bill should not be examined in light of whether it complies with existing law. Our function is to bring the law to the point where it should be. On the intake side, I have difficulty coming to grips with refugee claims emanating from a Western democratic country in the heart of Europe, such as Hungary. The minister today said there were 5,000 claims. These are individuals who have the right — not the privilege, the right — to go to neighbouring countries to live and to work. I fail to understand why our refugee determination system attracts so many when other countries in the world attract so few.
There is a difference between discrimination and persecution. Yes, there is discrimination. Yes, Canada and other countries are working on it. Unless we modify Canada's refugee intake process, that flow from Hungary will continue to grow, displacing the vulnerable from other countries that do produce refugees that merit asylum protection in Canada. Our resources and our quota are limited. They should not be pushed to claimants who have other practical options. If the way to fix this is to introduce a mechanism to declare that countries like Hungary merit expeditious treatment or other elements that we have heard today and on other days, that is the way to do it. This is probably the number one reason why, in the past, while we have a gold medal winning refugee system, the trunk was a little heavy, and the mileage on the vehicle was not as it should be. We are now more nimble. That is probably my number one.
Senator Wallace: Thank you for that.
Senator Jaffer: There are a number of things that have not been raised. I will ask you, and, if you do not think that you can answer, I respect that. One is biometrics. I am completely in favour of biometrics in the sense that it has to happen. However, in 2002, when I was very involved with this issue, we shelved it because of the privacy issues. I do not know if there is a framework or the infrastructure in place to protect the information of refugees. We know what has happened at HRSDC, with the Job Bank and other things, and how information has gotten out. Is there the infrastructure for privacy protection with biometrics?
Mr. Showler: My understanding is that there is not. It is an incredibly complex problem. People use biometrics as though there were a magic solution. Remember that biometrics is also fingerprints and photographs and all kinds of other things. In my recommendation to the Commons committee, I recommended that they had to look at it from the point of view of information security. The great challenge is the inadvertent sharing of information with international partners who have very different objectives and, quite possibly, very different human rights records than we do.
I am not aware of any framework available out there. It is certainly an issue going forward.
Mr. Kurland: There is a framework out there that is available right now, and it works: You hive off to the private sector —
Senator Jaffer: But we are not —
Mr. Kurland: — the enforcement of the privacy rights. The Province of Quebec has done it. The Province of Quebec provides exemplary damages for violation of the right to privacy in the Quebec charter. Lawyers will have a class action around CBSA faster than you can say recours collectif. There is a mechanism out there: Privatize it.
Senator Jaffer: But it is not in place?
Mr. Kurland: Not federally.
Senator Jaffer: When I practised, if a refugee case came to me and we were in trouble, we had HnC and PRRA. Both of these cannot now happen for a year after the refugee claim has gone sour, which means that these people can be deported, and then their HnC and PRRA can be looked at it because there is a year's delay. What I understand is that now you either go the refugee route, the HnC route or the pre-assessment route. You cannot have both. What will happen?
Mr. Showler: What will happen is one of two things. If there is a good refugee decision and a reliable appeal to catch the mistakes, then there would be deportation. There are some people who are not removable from Canada for various reasons. We are aware of those. Sometimes a country is collapsing; it is in civil disorder. It would be those persons who, after a year, if they are not removable, could apply for the PRRA or for the HnC in appropriate circumstances.
There are a couple of exceptions to the humanitarian limitation, again involving children or an exceptional health issue that relates to section 97.
If I may, Mr. Chair, I have to say one thing. As to your question, senator, with regard to balance, this is a perfect example. I completely support a designated country of origin system. Mr. Kurland has overstated the issue in terms of the Roma and protection. Setting that aside, my view of balance would be an expedited system so that you can still make your refugee decision in 60 days, can still take an extra 60 days to do the appeal and can expedite those and do those first. I assure you, as to the fraudulent aspect — and they are not all fraudulent but a significant number are — that if they are returning, in six or seven months to those Roma ghettos in Hungary, that is the most effective form of communication to stop that flow from 5,000. In my view, that would be the way to do it.
Senator Jaffer: Can I ask one short question?
The Chair: Short.
Senator Jaffer: Do both of you see, in your experiences, that, for the safe country option, gender guidelines are being applied?
Mr. Showler: For the designated country of origin, DCO, the general view is no, and I think that that is correct. One of the problems with safe countries — and I mentioned the fact that safe countries are not always safe — is that, frequently, the persecutor in those countries is not the state. Often, though not always, it tends to engage gender issues. When I said that DCO claims can be onerous to prove, they are the types of claimants that are not even particularly good at bringing those kinds of claims forward. They certainly need as much time as anyone else.
Mr. Kurland: There is gender protection in there because it is in that qualitative factor, and the minister spoke about it earlier today. It is there.
The Chair: Thank you very much. Thank you to my colleagues for your questions and the enthusiasm of the discussion today.
To both our witnesses, on behalf of the committee, I thank you both.
(The committee adjourned.)