:
Good morning, everyone. My name is Delphine Nakache. I am a law professor at the University of Ottawa, but you are right that I am teaching and researching in the Faculty of Social Sciences. But my background is a legal one.
[Translation]
As an outside consultant, I wrote a report for UNHCR in December 2011 on the human and financial costs of detaining asylum seekers in Canada. My presentation today will focus on the detention conditions of asylum seekers in provincial prisons. I will talk about that issue at length because very few studies have been conducted on it. I really wanted to highlight that aspect.
If Bill C-31 passes, the number of asylum seekers detained in provincial prisons will increase significantly. However, there are already a number of substantial issues related to the detention of asylum seekers in those institutions. Therefore, it is of the utmost importance that those issues be resolved before the situation worsens.
[English]
Given that the highest increase in immigration detention is expected in British Columbia, the most likely destination for boat arrivals, my presentation today focuses on conditions of detention for asylum seekers in B.C. But this situation is broadly similar across Canada.
[Translation]
What is the overall situation in Canada?
[English]
During the past three years, according to the CBSA, the use of provincial prisons for immigration purposes has increased for all categories of immigration detainees, reaching over 36% of all immigration detainees.
[Translation]
Asylum seekers are directly affected by that increase. From 2005 to 2009, 23% of refugees were detained in provincial prisons, on average. From 2009 to 2010, that figure was 29%. So there was an increase in the number of asylum seekers detained in provincial prisons. It is important to point out that the vast majority of those people were not detained because they posed a threat to security. They were detained only for immigration reasons. Generally speaking, this means that almost one asylum seeker out of three who is detained under the Immigration and Refugee Protection Act is locked up in a prison-like institution—in other words, a municipal or provincial prison. In most cases, we are talking about a provincial prison.
How can we explain those figures? It's fairly simple. They are due to the fact that Canada has only two CBSA immigration centres, also referred to as immigration holding centres. There are actually three such institutions, but two of them are used for detaining foreign nationals for periods of over 72 hours. There is one centre for Greater Montreal and another one for the Greater Toronto Area. Therefore, elsewhere in Canada, asylum seekers are detained in municipal or provincial prisons. Provincial prisons are also used across Canada to detain low-risk individuals with mental or behavioural disorders.
What is the situation in British Columbia, specifically?
[English]
In British Columbia, detained asylum seekers are brought to the B.C. immigration holding centre for the first 72 hours only, and then are automatically transferred to provincial prisons.
[Translation]
Although there are medium security prisons in British Columbia, all asylum seekers are detained in maximum security prisons. The reasons for that are unclear.
[English]
B.C. Corrections also says that it wants to treat all detainees the same way so as to avoid any discrimination between inmates. Thus, B.C. guards are not informed of the immigration status of detainees
[Translation]
and asylum seekers are submitted, just as all other common prisoners, to all the institutional rules. This may mean that they have to wear prison uniforms and that their freedom of movement is extremely restricted.
[English]
The lack of special consideration for asylum seekers is problematic.
[Translation]
For instance, unlike asylum seekers detained in CBSA centres, imprisoned individuals have no Internet access. Their telephone calls are extremely restricted. Those calls can be made only when asylum seekers are in the common room—so at very specific times of day. In addition, since the calls are monitored for reasons that are understandable in a criminal context, they can be interrupted at any time.
In addition, local calls are free for asylum seekers detained in CBSA immigration holding centres, or IHCs, but individuals detained in prisons have to pay for them. Inmates must use a calling card issued by the penitentiary to make international calls. However, according to my research experience and what I witnessed in British Columbia, the calling cards do not work for all the countries asylum seekers come from.
These are concrete issues, but under those conditions, you can understand that it is very difficult for asylum seekers to gather the documents they need to claim refugee status, especially since those claimants rarely receive outside help.
Regarding correctional centres, aside from the Red Cross that visits those centres at very irregular intervals, no NGOs are allowed to visit asylum seekers in prison. In addition, it is very difficult for those asylum seekers to seek legal advice while in detention. That is much more difficult than for those detained in CBSA immigration holding centres.
[English]
The situation contrasts starkly with the situation in other industrialized countries.
[Translation]
The problematic situation in provincial prisons is exacerbated by a legal uncertainty surrounding the sharing of jurisdiction between federal and provincial authorities. This is actually a context where, under the Immigration and Refugee Protection Act, the CBSA is the federal entity with the authority to detain asylum seekers. However, under the Constitution Act, 1867, provinces are responsible for the care, custody and control of asylum seekers detained in provincial prisons. This means that, although the CBSA has the decision-making authority regarding the detention of asylum seekers, that agency has no control over the way provincial correctional services manage their prisons.
[English]
As noted in my report, one CBSA respondent mentioned that “the situation today reflects a highly ineffective use of taxpayers' dollars, since CBSA is paying so much for the correctional facilities but has no 'control' over what provincial prisons are doing.”
[Translation]
At the end of my presentation, I will talk about the financial cost of detention.
Strict punitive rules in prisons were established with a specific goal. That goal is simple: to establish a framework for common prisoners' detention conditions. So there is no apparent reason for those rules to apply to asylum seekers detained under immigration law and not criminal law. That is why international law clearly stipulates that asylum seekers should be detained in conditions appropriate to their status and not as individuals deemed or recognized as guilty of an offence.
[English]
In recognition of this issue, a 2009 report by a senior official from the U.S. Department of Homeland Security acknowledged, for example, that the detentions of immigration detainees in U.S. correctional facilities “impose more restrictions and carry more costs than are necessary to effectively manage the majority of the detained population”.
The costs are clearly human rights costs. To name a few, asylum seekers in prisons are subject to unnecessary and disproportionate restrictions of their liberty, which impedes their ability to seek international protection. There are also concerns about the safety of detained asylum seekers in B.C. prisons, most of whom have likely never experienced a prison-like environment before and are left to co-mingle with the regular population in prison. In addition, dispersing asylum seekers in high-security prisons, instead of medium-security prisons, is a disproportionate management of the asylum seeker population given the very low security risk that asylum seekers present.
[Translation]
In addition, there are some financial costs involved. Of course, it is difficult to obtain statistics on the financial costs of detention. On that point, I would like to refer you to a 2010 report the auditor general produced on detention in immigration.
:
I'm going to read my statement today in the interest of time.
I'm not going to talk this morning about how terribly expensive our current asylum system is, or how it encourages human smuggling, or how it presents a serious security threat to Canada, or how it undermines our immigration system, or how it damages our bilateral relations with many friendly countries and compromises our trade and tourist industry. I'm not going to talk about why it's the primary reason that our southern neighbour, the United States, has in effect militarized its border with us and, finally, about how it undermines and inhibits Canada's efforts to help resolve global refugee problems.
For over a quarter of a century, every attempt to reform Canada's defective asylum system has met with failure. The primary reason has been the willingness of our politicians, from all sides of the House, to accept the arguments of the powerful refugee lobby that exists in the country, a lobby that has fiercely resisted every attempt to introduce even the most modest reforms in a clearly dysfunctional system. The lobby consists of, among others, immigration lawyers, immigration consultants, the Canadian Council for Refugees, churches, Amnesty International, and a host of other advocacy groups and non-governmental organizations. Many of these organizations receive substantial taxpayer funding for their operations, and many of them do an excellent job in helping the asylum seekers and refugees who get into the country. There's no question about that.
One might question their sincerity in posing as defenders of poor refugees against a malevolent big government trying to close Canada's doors against the persecuted of the world, but they have the right to lobby for a policy change that serves their interest, and I don't challenge that. What is more disturbing, really, is that this lobby has played a dominant role in the formulation of asylum policy for the last quarter of a century. It is almost as if Parliament has delegated its responsibility for policy-making in this area to the lobbyists. The Department of Citizenship and Immigration, for example, actually calls these lobbyists stakeholders, not lobbyists.
You will notice that I make a clear distinction between asylum policy and refugee policy. The refugee lobby does not make this distinction and it likes to mislead the media and the public into believing that all of the thousands of people who annually show up at our borders spontaneously and uninvited and claim to be persecuted are counted as refugees. Now, that is wrong. They are not refugees. They are not refugees until the IRB adjudicates their claim and makes a final decision as to whether they meet the refugee definition.
Since Canada allows everybody and anybody who shows up at our border to receive a quasi-judicial tribunal hearing, with, in most cases, free legal advice and access to the courts, the refugee board, of course, has always had and faced a serious backlog. The backlog now is around some 40,000 people waiting to have their claims heard, which means that if you come in today and make a refugee claim, you probably won't be able to get your hearing for two years or so. The longer it takes for the hearing, of course, the more difficult it is for anyone to decide to send them home, even when these people are not considered refugees. It's almost impossible to do so.
Take the two Tamil ships that arrived, one three years ago and one two years ago. There were some 500 asylum seekers, and to my knowledge, fewer than 20 have been sent home. The rest are still here and will be here probably for another year or two. They're not going home. You can be sure of that.
In 1989 when new refugee legislation was being prepared to address this new phenomenon of people suddenly arriving in Canada claiming to be refugees, Lloyd Axworthy was the minister, and he assigned a professor from the University of Ottawa, Edward Ratushny, to do a study and make recommendations on how Canada should handle this problem.
Ratushny recommended that in order for any quasi-judicial tribunal to be able to function properly, it had to ensure that not everybody had access to it. If you give complete and non-regulated access to any quasi-judicial tribunal, Ratushny said, it's bound to fail. It can't handle the volume and will be overwhelmed by numbers. Of course, that's exactly what's happened with the refugee board.
The legislation in 1989 indeed did include Ratushny's recommendation, which was to clear out very swiftly at the front end of the process anyone coming from a safe third country. There was no point in giving them protection. They already had it in the country they were coming from and, therefore, in Ratushny's view, they should not be eligible to apply, as they would just clutter up the system. He of course was right, but as usual he was not heeded.
Three days before the legislation came in that would have included the provisions for the government to decide the countries that were safe, Barbara McDougall, the then minister, announced that the legislation would come into effect but without enacting the safe country provisions. This of course meant that the board was already running into serious problems.
Two years later, in 1991, the number of asylum seekers coming into Canada had gone up to 67,000. A couple of years later, it was 55,000, then 58,000. It's continued at a very high level ever since because there are no means of screening out quickly those who are evidently not needing our protection.
The UN convention on refugees imposes one fundamental obligation on its signatories, and that is not to send those back to a country where there is fear of persecution. The convention does not mention asylum seekers. Why? It's because, of course, they're not refugees. They are looking for refugee status and claiming to be refugees, but many of them, as we know—60% at least, via our own IRB—are considered to be not genuine.
With this obligation in mind, surely it's Canada's right as a sovereign country to designate countries as safe for refugees. There is no point at all in not designating all of the European Union countries as safe for refugees. They have full protection through the European human rights tribunals.
The United States is a safe country for refugees. Its acceptance rate is very high, and it has have professional judges deciding these cases. Our safe country agreements should be reinforced there. The United States was not keen to sign that agreement and made sure that if anyone had even a distant relative in Canada, if they appeared at the border, the safe third country provision would not apply. The U.S. authorities knew that 50%, 60%, maybe 80% of the people coming from the United States were coming through the States into Canada to join relatives here.
Such a designation would not be in violation of the UN convention in any way. All of the European countries have safe countries and safe third country provisions. They all do, otherwise they wouldn't be able to cope with the volumes of people pouring into their countries. Germany in 1993 had 493,000 asylum seekers. The following year they changed their constitution to deal with it. We still haven't been able to make any changes in our law, in any attempt to reform it.
I support the bill that is now before Parliament, because in my view it is a modest attempt to make some changes. I don't think it's going to work, quite frankly, because we still don't thoroughly screen out people coming from Europe or the United States. They'll be allowed to make a claim. They don't have the right to appeal to the new appeals section of the board, but they do have the right to seek leave to appeal to the Federal Court.
The timeframes that have been set for them, I think, will be challenged by the lawyers and perhaps by the charter. I don't think they're going to work.
I think there are some good parts to this bill that have to be supported, but my concern is that it doesn't go far enough. This new bill will not work unless it has a system for screening out, at the front end, those people who obviously are not refugees and who do not have the right to claim because they have protection in the country they're coming from.
If you don't send refugees back literally within 48 hours, or asylum seekers within 48 hours, you've got them for good. That's why we've become the target of choice for human smuggling. The smugglers can guarantee that even if you're turned down at the board, you're in. We send very few back.
We're detaining more now, as Madame Nakache has said, and I agree with a great deal of what she said. We should have detention quarters rather than jails to detain these people. But if you don't send them back quickly, you're doomed.
As a final thing, in 1999 there was an excellent report by Lucienne Robillard, the then the minister, called Not Just Numbers. I think the immigration department would do your committee a great service if they could take the chapters from that report dealing with protection and distribute them to the members of the committee. Had we followed that report's recommendations, we would have been in the forefront of countries and a leader in helping refugees around the world, and in dealing fairly, as well, with asylum seekers.
Thank you.
:
Mr. Chair, I have five minutes and I do want to try to get across a couple of points.
First and foremost, I think it's very important that we emphasize that mandatory detention is indeed, from my and the Liberal Party's perspective, unconstitutional and will be challenged.
Not only does Bill raise concerns regarding challenges to our Constitution, I would ultimately argue that it also tarnishes Canada's reputation to be a world leader in dealing with refugees and whole issue of refugees more broadly, where we have 10 million plus people around the world who are in need of some sort of asylum or are in refugee camps and so forth. Our potential to be able to influence that is being tarnished by Bill .
I want to go to the Sun Sea and the Ocean Lady. The Sun Sea carried 492 people and the Ocean Lady 76 people. There are six people who are still in detention. The current system allows us to keep in custody those individuals who are a high risk to Canadian society. They remain in detention. That's an important point that needs to be made.
Ms. Nakache, you made reference to detention. I appreciate your words and that they are based on finances and the fact that it violates the Constitution. Those are excellent points that I concur with wholeheartedly.
The question I have for you is this. There are other aspects to Bill , such that if you are deemed a refugee and your circumstances change abroad, you could lose your status as a refugee or your ability to sponsor a family member, even if you have been deemed to be a refugee for years.
I'm wondering if you can provide a quick comment on that.
:
First of all, I fully agree with you, and I'm sorry if I was misinterpreted on that fact.
Once again, international law does not forbid immigration detention per se, but it states, among other things, that immigration detention has to be done on a case-by-case basis. Mandatory detention per se is unconstitutional and illegal to me, according to international law. I certainly see where you are coming from and I support this view too.
I would be more than happy to provide the committee with some reports that have been written specifically on alternatives to detention. I think these are very good reports that could certainly provide you with an insight on what the possibilities are here, and there are concrete possibilities.
In relation to other aspects of , I think that many of them are problematic. The one that you mentioned, the fact that we can send someone back if the situation has changed in their country of origin, needs to be considered with caution. Why is that? Because if people in the country of destination here in Canada have—I will say that in French—
[Translation]
They have taken root and have really developed considerable ties to the country of destination. In that case, I see it as very problematic—if only from a human standpoint—to send those people back to their country of origin.
Bill contains many provisions I consider to be problematic. Those provisions violate the fundamental principles of refugee law.
I prefer to let other people testify and talk at more length about those very important issues, as you said.
:
Thank you for that comment.
I would like to make two clarifications, and I think it's very important to do so.
Of course, this is the kind of talk surrounding the issue of asylum seekers and refugees. We often hear people say that refugees should be protected and that asylum seekers are provided with less protection. You know as well as I do that the Geneva Convention was adopted in 1951 in a context where, at the time, the terminology issue was irrelevant. Refugees would arrive and automatically be granted refugee status. At the time, the context was very different. Over the years, a distinction has been made between asylum seekers and refugees because destination countries increasingly had to deal with asylum situations and, finally, when people would arrive on their soil, they were refugee status claimants. The fact is that the Geneva Convention only mentions refugees, but that is because, at the time, no distinction had been made between the two terms. It was a post-WWII context, and people were automatically considered as refugees under the convention. The distinction between asylum seekers and refugees was made over time, and determining refugee status has now become a long process.
Unless I am mistaken, you asked why it is illegal or unconstitutional in terms of international law to detain people in cases where information on their identity is lacking, and in other similar situations. You know very well, as do I, that immigration law comes under administrative law and that it's basically a law that allows procedures. Finally, the principle of administrative law is based on considerable discretion being exercised by decision-makers. Why was the system developed like that? Because those in charge thought immigration officers should have the authority to determine the merits of a claim, a situation, on a case-by-case basis. In fact, immigration law has so far been designed to allow immigration officers to make an assessment on a case-by-case basis when an individual comes before them. As a result, everyone is put in the same basket in that context, and that's where things become problematic.
:
Okay, we will reconvene.
We have a little larger group of witnesses this morning because members may have to leave the committee to go and vote. We're not sure when, if indeed at all, but there's a good possibility we will. That's why it's a little unusual and have a larger group.
We have three witnesses on the panel. The first panel is from the Canadian Council of Refugees. We have Loly Rico, vice-president, and Chantal Tie, the working group chair of inland protection. From the Canadian Association of Refugee Lawyers, we have Donald Galloway, co-chair of the legal research committee, and Lesley Stalker, a member at large. Finally, from the Centre de santé et de services sociaux de la Montagne, we have with us today Marc Sougavinski, director general, and Marian Shermarke, clinical advisor.
Good morning to all of you. Unfortunately, each group normally has 10 minutes, but this time you will only have 8 minutes.
Ms. Tie, are you the spokesperson?
:
The Canadian Council for Refugees believes in a refugee system that's fair, independent, and affordable and one that honours our legal obligations under the charter and the UN convention. We have joined with Amnesty International, CARL, and the Canadian Civil Liberties Association in calling for the withdrawal of this bill. Our briefs detail the myriad ways in which Bill is unconstitutional, undermines our humanitarian traditions, and violates our international obligations. We care deeply about all of these issues, but today we'll be speaking only about detention and processing times, from a family values and fiscal responsibility perspective. We're asking that those of you with the power to withdraw this bill ask yourselves: is Bill C-31 compatible with these values?
What does family values have to do with ? If family values means anything at all, it has to mean protecting and preserving the family and caring for children. It means that we don't deliberately do things that we know will harm families and children physically, socially, or emotionally. Two of the ways this bill harms families and children is by detaining designated arrivals on a mandatory, unreviewable basis, and by delaying permanent residence for five years, thereby preventing family reunification. The CCR has asked, how is detaining designated arrivals in jails or detention facilities compatible with protecting children and families? How can you justify placing children in the care of Children's Aid or in jail because you insist on imprisoning their parents?
I say “jail”, because in Ottawa, where I practise immigration and refugee law, people are detained at the detention centre on Innes Road, along with common criminals. They are subjected to locked cells, mandatory searches, sometimes strip searches, severe restrictions on visitations, and mobility restrictions. Men and women are housed separately, with few opportunities to socialize and communicate. If they have mental health issues, they are placed in maximum-security segregated detention.
:
Good morning. I came to Canada 22 years ago as a refugee with my husband and two children. At that time I was five months' pregnant. I am bringing to you my story to explain how important it is to withdraw Bill .
When I arrived, I was protected by Canada, and my children were able to grow up with their father at their side. In my country, my husband was almost killed and he was jailed and tortured. In gratitude for our protection and the treatment we received, we founded a refugee house where we welcome women and children who are fleeing gender persecution.
If we had arrived in Canada after June 29 of this year and this bill was law by then and we were designated on arrival, we would have been be detained, my children and I would have been separated from my husband, my children would have been given to a foster home or stayed in jail with me, and I would have given birth in jail.
At the immigration holding centre in Toronto, there are no facilities to keep families together. Women are in one wing with their children, and men are in another wing. They are only allowed to meet for 45 minutes in the morning and 45 minutes in the afternoon. Imagine yourself in that situation, only being able to see your family for a short time every day, only being able to carry your newborn baby for a short time every day. This is an outright violation of Canadian values.
What I'm trying to say is that we need to focus on the Canadian values of keeping families protected and together. Bill is a violation of these values.
Another way we will be keeping families separated is through the five-year waiting period before applications for permanent residency will be allowed by designated arrivals.
Most of the women who come to our centre have left behind young children. In the current process it takes them roughly six years to reunify with their children because of the delays, especially if visas have to be processed through the Nairobi office. With the five-year waiting period, they will be separated from their children for 11 to 12 years. This could mean half of a child's life. This will have a strong emotional and social impact, because these children will need to have specific programs and support to be appropriately reunited with their mothers and fathers and vice versa. We are seeing the social impact on the families that are reunified after eight to ten years.
Refugees feel tremendous guilt at having been safe here while their children and spouses were left behind in precarious situations. Families need to go through a process of recognition where children need to be reacquainted with their mothers and the mothers recognize and accept that their children are no longer their babies, but adolescents. Families need help to make this adjustment, which sometimes is impossible. Often they need counselling to adapt.
The CCR asks: How is deliberately separating refugees from their families compatible with family values?
:
What does fiscal responsibility have to do with Bill ? We believe fiscal responsibility is about spending taxpayers' dollars wisely. The CCR is committed to an affordable refugee protection system. When money is wasted, it is not available to fund the important task of providing protection. Right now, we understand from Mr. Dykstra that only one percent of refugee claimants actually need to be detained.
Our current system is doing an individualized risk assessment, which works well to protect our society and ensure the integrity of the immigration system. The figure we used was 6%, from CBSA data, which means that 94% of refugee claimants on average do not need to be detained. If this bill passes, we will be detaining 100% of designated arrivals for a year. The math is simple. Ninety-four percent of the people we will be detaining will not need to be detained, if past experience serves us well.
There is no reason to believe that a smuggled refugee claimant is not a genuine refugee. A refugee's mode of arrival tells us nothing about the genuineness of the claim. The UNHCR has repeatedly pointed out that many genuine refugees arrive irregularly and without papers. The reason is obvious: If you're being persecuted by your government, it is hardly likely to give you travel documents or an exit visa to facilitate a visa application to Canada.
The cost of detaining the 94% of claimants who do not need to be detained for that year is huge, if we use the CBSA's figures of $200 a day or $73,000 a year. But if refugee claimants were given work permits and were able to maintain employment and become taxpayers, the cost differential would be enormous.
There's now compelling evidence of the devastating impact of the cost of mandatory detention in Australia. The figures are all in our brief. Look at them. Let's learn from the Australian experiment instead of repeating its mistakes.
And remember, none of these cost estimates take account of the enormous human cost of detention, the impact on the physical and mental health of the detainees, which is severe. Neither do they take into account the future cost of managing these impacts once the refugees are accepted and join our communities as permanent residents. These include documented incidents of—
:
Mr. Chairman, members of the committee, we thank you for hearing us today on this important democratic exercise.
I am Marc Sougavinski. I am the CEO of an organization called the CSSS de la Montagne, a public health and social service organization in Montreal. Mrs. Marian Shermarke, our expert in immigration, is accompanying me.
[Translation]
The CSSS de la Montagne is a professional university organization of the Réseau de la santé et des services sociaux du Québec—Quebec's health and social services network—specializing in issues related to immigrants and refugees. The CSSS has a special program called PRAIDA. That is a service with over 60 years of experience and expertise in the reception and integration of asylum seekers. PRAIDA—formerly SARIM—brings together a team of workers and doctors that was created for the specific purpose of providing support and appropriate monitoring to asylum seekers, rather than leaving them to their own devices and without resources in Montreal.
In about 60 years, PRAIDA has dealt with over 350 claimants and has provided them with support. The experience is concrete. We are a public organization. We do not undermine government goals. We are state professionals, and we care about effectiveness and equality in the fast and fair provision of services, to paraphrase Minister Jason Kenney.
[English]
We agree with that.
[Translation]
Among other things, PRAIDA has agreements with all Canadian immigration services and works closely with border services. We want to take this opportunity to highlight the excellent co-operation between our services.
We also care about the protection of Canadians. We are against criminals and abuser of any kind, and we want to make sure that the money invested in the programs is invested in a way that is judicious and useful to Canadians. Finally, I want to specify that we are a health and social services organization. There are all kinds of needs in that area, and we are not looking for more work or an increase in human suffering. There is enough of that as it is.
[English]
So I hope no one will say that we somehow have some kind of conflict of interest in the matter.
[Translation]
What's disturbing about the bill is the image it conveys—it makes it seem as though most asylum seekers are swindlers and liars who absolutely need restrictive, even punitive, measures. There is the idea of good guys and bad guys, where most claimants are bad guys. We are thinking of those people whose claim is denied, for instance. That may be a popular belief that's easy to spread among uninformed crowds, but for people like us who have been receiving asylum seekers for 60 years, that is untrue.
There are certainly some people who abuse the system, but as in any area of human activity, such as politics, fraud and system abuse are not committed by the majority, even though popular belief may indicate so. Prisons are for criminals, and we agree with that. However, they are not a place for refugees, vulnerable individuals, mothers and their children—not even those who are 16 years old. The emphasis placed on imprisonment and the potential consequences for children make us very uncomfortable.
[English]
Also let's be honest: a jail is a jail. Don't believe those who will tell you that it's just a light form of detention. It's not what is happening. There's no such thing as light preventative jail time. A jail is a jail.
We are in agreement with having shorter delays for someone to receive an audience, but not to the point that it prevents the person someone from preparing their case.
[Translation]
Currently, the time frames are too short and even harm the so-called good refugees—if we are to follow that questionable logic.
We feel that it is unthinkable for Canada to consider imprisoning children or separating them from their parents. All of you are probably parents, and I am sure I don't need to explain that in detail. This measure makes no sense and must absolutely be corrected.
Ms. Shermarke will talk about more specific clinical issues.
:
Mr. Chairman, I join Mr. Sougavinski in thanking you for the opportunity to come before you and to share with you our concerns with regard to Bill .
[Translation]
The idea behind Bill is to reduce the activities of smugglers and criminals by punishing asylum seekers who come to Canada through underground channels. We feel that this bill is an academic exercise because it will not put a stop to claims by individuals who turn to smugglers to bring them to Canada, so that they can seek asylum for their protection. That academic exercise will, on the contrary, put asylum seekers' lives at greater risk. Those who do arrive may be in bad shape.
I want to share the story of two young Chinese nationals who left China for Hong Kong with a smuggler. From there, they fell into the clutches of other smugglers who took them to Thailand. Then, they left for France and, from there, to South Africa. From South Africa, they went to Brazil, in order to finally join their father in Canada, a father who was an asylum seeker, an accepted refugee. Those young people were abused on their way here. They lived in terrible conditions and were assigned to hard labour. They were in the clutches of smugglers for much longer than expected.
[English]
So we have to be careful about what we wish for.
[Translation]
I am now getting to my comments on the time frames provided for hearings. We think that the time frames for meeting hearing requirements are too short. Those time frames do not take into consideration the reality of asylum seekers. By not taking into account the context within which asylum seekers arrive, Bill sets them up for failure at their hearing.
The reality of asylum seekers is that, within those very short time frames, they must also get their bearings in a society whose language they do not speak. They have to find housing. They also have to initiate the immigration claim procedure and find a lawyer.
Regarding the medical aspect, it is important to understand that those people have been damaged by many traumatic experiences in their country of origin and also by what they have suffered since their departure. During that period—which is part uprooting and part quest for safety—asylum seekers, although traumatized and vulnerable, focus all their efforts on maintaining their physical and mental integrity so that they can reach their final destination.
That concerted psychological effort is often a last-ditch attempt that the country of refuge must match by providing the best possible reception and integration. If the host society fails to fully provide the required protection, the asylum seekers' mental and physical integrity will once again be compromised. That is another possible source of trauma, which makes those individuals even more vulnerable.
I have decided to limit my remarks to five clauses that are in the bill. I'd like to draw your attention to clause 10, the clause that talks about designating foreign nationals.
I'd like to move on from there to talk about the mandatory detention clauses, and I'd like to try to clarify some of the arguments from the earlier session about the constitutional issues. I'll try to be as simple as possible, although time is not on my side in that regard.
Thirdly, given that I'm a law professor, I would like to deal with something a little bit more arcane, but which I think is quite important. That is clause 16 of the bill, which deals with the refusal to grant travel documents to refugee claimants until they have gained permanent residence or some sort of status within the country.
Let me address the clauses dealing with designated foreign nationals and mandatory detention—clause 10 as I said, and clauses 23 to 25. The issue I want to raise is the constitutionality of the provisions dealing with mandatory detention. Let me try to explain why the constitutionality issue is so important to the Canadian Association of Refugee Lawyers and why we find it so puzzling that the constitutional issues have not been addressed in these clauses.
The puzzlement, the mystery of this, relates to the fact that the issue of detention has been dealt with exceptionally clearly by the Supreme Court of Canada in the last five years. Normally when you mount a constitutional challenge, you identify that you've got an uphill battle. The issue may require analogies to be drawn to other areas of law. It may require complicated arguments. But here we have a record from the Supreme Court of Canada in the Charkaoui case that has made certain matters explicitly clear.
First, they say that detention is an extreme measure. That's their language.
Second, the issue is not the constitutionality of detention per se but the constitutionality of detention without prompt and independent review. That is our concern, that we institute and maintain a system with review of decision-making. We are not promoting having no detention; it's the unconstitutionality of detention.
I think that's the briefest way in which I can refer to the issue of constitutionality. I'll take up the issue should you have questions for me.
Let me go to the issue about the travel document.
:
Good morning, members of the committee.
My remarks today stem from a basic premise, which is that everyone in this room is committed to the protection of people who are at risk of persecution in their countries of origin, and that no one in this room would applaud or welcome the refoulement, or return, of persons to a place where their lives or liberty would be at risk.
This has to be our touchstone. As we go through the bill, we have to ask ourselves whether the provisions of the bill impede or enhance our ability to identify those who are in need of protection.
I would like to share my concerns about two groups of claimants who are, in my experience, likely to fall through the cracks and face refoulement under the ultra-fast timelines of Bill , regardless of our good intentions.
The first group includes those who are traumatized because of past persecution.
There's an inherent conundrum in our refugee system, and it's this: The people who have been severely persecuted in the past and are most in need of protection are often the least able to tell their stories. There has been extensive scientific research into this. Many people think that the first story a claimant tells is likely to be the truth, so it's important to get the account before the claimant has a chance to colour his or her story. But in fact, it typically takes a great deal of time to get a coherent and accurate account. There are a number of reasons for this, but for reasons of time, I won't go through them. I'd happy to answer questions later, if you would like elaboration on the scientific reasons trauma impedes the ability to share a story.
The problem, for practical purposes, is that the more severely traumatized an individual, the greater the likelihood that he or she will be found lacking in credibility. The person's account is likely to be found incoherent, inconsistent, vague, or contradictory. So the claimant is likely to be dismissed as lacking in credibility.
The only way to counter this is to educe medical, psychological, or psychiatric reports that corroborate the physical and mental scars of trauma. And this takes time. It takes time, because claimants who are traumatized often will shut down their experiences. They don't want to talk about them; it's their way of coping. The accelerated timelines under Bill will impede our ability to identify those who have suffered persecution.
The second group I am concerned about are those who are in detention. As you've heard this morning, detention in all centres outside Toronto and Montreal is in correctional facilities. Correctional facilities are designed to manage people who have been convicted of or charged with criminal offences. These are typically people who are quite difficult to manage. Moreover, correctional facilities impose quite severe restrictions on the ability of people inside the facility to communicate with the outside world. These restrictions apply to refugee claimants. There are severe restrictions on incoming calls. There are severe restrictions on outgoing calls. There is no access to Internet. There is no access to email. As a result, claimants have a great deal of difficulty obtaining identity documents or other evidence germane to their claims, such as complaints they may have filed with the police in their countries of origin, medical reports from hospitals, and so forth.
They also have—
Thank you to all of our witnesses for appearing before us today. This is indeed a good exercise in democracy. We welcome your comments and input as we are studying Bill .
I'd like to make a few quick points if I may, and elaborate in the short time that I do have about the bill and about Canada and what Canadians expect of good government when it relates specifically to the issue of immigration and refugees. As Canadians, we take great pride in the generosity and compassion of our immigration and refugee programs. But Canadians have no tolerance for those who abuse our generosity and take unfair advantage of our country. I'll allude to some examples of that.
Canada remains one of the top countries in the world welcoming refugees. In fact, we welcome more refugees per capita than any other G-20 country. Canada welcomes one in ten of the world's resettled refugees. That is more per capita than almost any other country on the planet. In fact, our Conservative government has increased a number of refugees resettling each year by 2,500 people.
Bill C-31 proposes changes that build on reforms to the asylum system passed in June of 2010 as part of the Balanced Refugee Reform Act, as you may know. The proposed measures in this new bill will provide faster protection to those people to whom I believe you're all referring, those who genuinely need refuge, and faster removal of those who do not.
I want to speak a little bit about the processing times. With the measures in Bill C-31, the time to finalize a refugee claim would drop from the current average of 1,038 days to 45 days for claimants from designated countries and 216 days for all other claimants. Surely for someone who is fleeing persecution in their country or torture or possible death, to be in limbo in a system for 1,038 days is traumatic.
If we can get those folks processed faster into Canada and reduce that period to as short as 45 days, or an average of 216 days for those who are not coming from designated countries, that will speak to compassion, to faster family reunification, and to the humane aspect that we all want to see in dealing with people who really need our help and support.
As a government, we have a responsibility to ensure the safety and security of Canadians. I don't think anybody in this country would want to permit anyone into their neighbourhood without knowing who they are, without somebody knowing their identity. That's important. As we heard in earlier testimony, and some of you alluded to hearing the testimony this morning or perhaps on other days, it is incumbent on us to identify people before we allow them into our country.
I'm going to use two, what I believe to be, fine examples of what can happen if we do not exercise that responsibility. The Sun Sea and Ocean Lady arguably carried many people who were fleeing persecution in their country and who needed our support and help. On the Sun Sea, four people were found to be a security risk and one was found to have perpetrated war crimes. Five people were denied entry. From the people on the Ocean Lady, 19 were deemed to be a security risk and 17 were found to have perpetrated war crimes. This was a total of 41 people. Had they not been detained, had we not taken the time to identify them, to ensure the legitimacy of their claims plus who they were, we would have permitted 41 people into our neighbourhoods around our families, around our children, around parents.
The Chair: You have two minutes.
Mr. Costas Menegakis: I have two minutes left? I've used five already?
Okay.
It's a general question, not for you specifically, but a government has to ask, is it good government? Are we looking after the interests of our citizens if we simply say that we won't focus on the less than 1% of the total refugee claims of 10,000 to 12,000 people per year, and welcome everybody into the country without the proper time to identify who they were, which detention allows us to do? Certainly that would pose a security risk for us.
There is no Canadian, I can assure you, no one in my riding of Richmond Hill, who would be supportive of that.
Do I have a minute left?
I'm going to pass that minute to Ms. James because she asked me to, and I'm kind. Thank you.
I appreciate being a visitor today in the committee.
I actually have two questions, and I'd like to just ask them and then allow the panel to pick and choose up to our five minutes—or seven, I'm not sure. It's seven, thank you.
One is that in the earlier session there were some questions, from Mr. Dykstra in particular, on alternatives to detention and I don't think we got very precise answers.
I know in the international refugee law realm there are quite a few sets of guidances, if you like. There are guidelines on alternatives to detention. There is a clear presumption in international refugee law against detention. The test is that of necessity, and then the alternatives that are available are part of making out the test of necessity. If anybody can talk a little bit for the benefit of the committee about what generally is understood by alternatives, that would I think help us all.
As for my second question, I too am obviously troubled by the fact that there's a mandatory 12 months without review, because again, then the whole necessity of detention just cannot be reviewed. That's just a given. We're not contesting the idea of detention; it's the idea that it can't be reviewed against a proper test.
But I'm equally troubled by the fact that if a refugee claimant is determined to be a refugee, we have all these provisions that basically penalize them in relation to other refugees. Permanent resident status doesn't come for five years, and travel documents aren't available. Family reunification can't occur because of the permanent residence delay.
To me this feels like we are using these refugees as a deterrent instrument for other refugees to say that we don't want you coming in this way any longer. I wonder if anyone can comment on whether that alone is a violation not just of morality, but also of any legal provisions that you would know of.
Those are my questions.
:
Thank you, Mr. Lamoureux.
There are really two points that I would like to make. One is that genuine refugees who are fleeing often cannot stick together. They end up in different countries. There are families I know in Victoria who have very close family members in Sweden. They need to be able to go and see these family members to look after them. They need the travel document in order to do so. The travel document is something that we undertook to provide when we signed on to the refugee convention.
Clause 16 tells us that from now on we're going to give a narrow interpretation of the refugee convention and only supply this travel document to refugees. If they have come here in an irregular manner and are designated, we're only going to give this travel document to individuals after they become permanent residents, after the five-year process, or after they gain a temporary permit.
When it signed up to the convention, Canada attached a reservation. The reservation that it attached said that for two articles we would like to give a narrow interpretation of the phrase “lawfully staying”. These two articles relate to the provision of welfare services. Canada did not exercise its right to attach that reservation in relation to eight other articles, one of which is article 28. In other words, with full knowledge of what we were doing, we signed up to this international regime of granting families who had been split up the chance to go to other neutral countries in order to meet up with their family. That is what's at stake here in clause 16.
It looks like a very odd interpretative clause. I think it's essentially important, that it is really vital to understanding what we're doing. I fear that it may have been attached there because of a mistake. I fear that it is actually there because the government, or the drafters, were actually concerned about people returning, using this document in a way that they are currently not entitled to do. If you go to the passport office, if you go to their website, you will see that these documents are not valid for return to the country of origin.
I'd like to start where you took us, Ms. Stalker.
Everybody in this room is on the side of people who are persecuted around the world. I just want to say that this is a government that has taken the case of people like Aung San Suu Kyi, a personal hero of mine, to new heights; this is a department that is led by perhaps one of the most ardent advocates for human rights that our government has ever seen in this portfolio; and I personally am the founder of the Canadian Constitution Foundation. I think we'd be on the same page in many areas. I walk shoulder to shoulder with MPs throughout the House in that area.
So when I hear something such you said, Chantal, calling us a nation of human rights abusers, I take great exception. As my colleague Ms. James said, we have to balance. We have to care for people who come to our country like you, Ms. Rico, and we do; but we also have to care for the safety and security of our nation.
Going back to the Constitution, that's why there's a reasonable limits clause in section 1. It says, as you know:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Sure, Ms. Shermarke, we can take the case of an individual and say, this person will be discriminated against in an unfair way. But we have to look at the overall system. We need to preserve our refugee system and make sure that we can identify the 41 persons mentioned by Mr. Menegakis and keep our Canadian society safe. If we fail in that important mission, Canadians will rebuke the whole refugee program, and we as parliamentarians will not be able to stand in front of them and say, yes, we want to continue to welcome refugees to our shores.
So we have to do the balancing act. Please don't demonize those who want to make sure there's security for Canadians and say that they are anti-refugee.
An hon. member: Hear, hear!
Mr. John Weston: I'll turn it back to you, Mr. Dykstra.
I want to clarify one point. I was sent a note concerning Ms. Tie's comments with respect to what the minister said when he was here. She said that the penalties were meant to be punitive. He actually said that it was a deterrence measure. There's a big difference, from the perspective of what people may think of the word “punitive” versus the word “deterrence”. I think it's important to note that.
One of the things we have in front of us that Ms. Sims asked for yesterday is a document from Citizenship and Immigration that notes the top 10 source countries of refugee claims in Canada. You may not have this in front of you, so I will describe it. Hungary is now the number one country on the list. In 2006 it had 26 individuals seeking asylum; in 2007 it was 23; and in 2008, the year we lifted the visa restrictions on that country, it was 302. It's interesting to note that in 2009 it went to 2,532, and in 2010 to 2,333.
I do a lot of reading. I keep up on what's happening in the EU, and I didn't see anywhere that there was a terrible civil war or any type of oppression happening in Hungary during 2008 and 2009. But somehow, with the lifting of those visas, we had over 2,300 more people seeking to claim asylum in Canada.
Perhaps I could direct this question to Mr. Galloway. Do you agree that our system here in Canada is broken and that we need to fix the refugee system?