Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 11 - Evidence - June 22, 2010 - Afternoon
OTTAWA, Tuesday, June 22, 2010
The Standing Senate Committee on Social Affairs, Science and Technology met this day at 3 p.m. to study Bill C-34, An Act to amend the Museums Act and to make consequential amendments to other Acts, and Bill C-11, An Act to amend the Immigration and Refugee Protection Act and the Federal Courts Act.
Senator Art Eggleton (Chair) in the chair.
[Translation]
The Chair: Welcome to the Standing Senate Committee on Social Affairs, Science and Technology.
[English]
Our topic for at least the first hour this afternoon is Bill C-34, An Act to amend the Museums Act and to make consequential amendments to other Acts. Following this, we will resume our deliberations on Bill C-11, An Act to amend the Immigration and Refugee Protection Act and the Federal Courts Act.
In relation to Bill C-34, we have three people here from the Department of Canadian Heritage: Stephen Wallace, Associate Deputy Minister; Lyn Elliot Sherwood, Executive Director, Heritage Group; and Judith Marsh, Senior Policy Analyst, Heritage Group. Mr. Wallace will start and say a few things. Then he will turn it over to Ms. Sherwood for further comments. Ms. Marsh is here to help answer questions.
Mr. Wallace, you may take up to seven minutes or so.
Stephen Wallace, Associate Deputy Minister, Department of Canadian Heritage: Thank you very much for the opportunity to support the work of the committee in considering Bill C-34.
[Translation]
With your permission, we would like to present an overview of this bill, and you can follow along using the document that has already been handed out to the members of the committee.
[English]
With your permission, I would like to hand this over to Ms. Sherwood, who can give you our four- to five-minute presentation on the basics of Bill C-34 via a deck that has been distributed to members.
Lyn Elliot Sherwood, Executive Director, Heritage Group, Department of Canadian Heritage: I would like to briefly situate Bill C-34 in the context of the Museums Act, which it amends, and to briefly review its key provisions. After that, we would be more than pleased to answer your questions.
The Museums Act, 1990, established all national museums as Crown corporations. That act contains three substantive components: The definitions and the preamble; a section which defines each museum individually and describes its mission, mandate and powers; and a section that is applicable to all national museums which deals with matters such as governance. Bill C-34 amends the latter two of those three components.
Elements of the 1990 act that are not amended will apply to the new museum. Bill C-34, for example, does not refer to the appointment of the board of trustees; that is already covered in the existing 1990 Museums Act and will apply to the new museum. Bill C-34 also contains an amendment to the transitional provisions in the 1990 act and consequential amendments to other acts.
The first section of Bill C-34 creates and names the new Crown corporation — the Canadian Museum of Immigration at Pier 21. It also defines its intended purpose with the mission statement:
. . . to explore the theme of immigration to Canada in order to enhance public understanding of the experiences of immigrants as they arrived in Canada, of the vital role immigration has played in the building of Canada and of the contributions of immigrants to Canada's culture, economy and way of life.
It is set at a very general level, which allows the museum to evolve over time within the framework of that mandate. The capacity and powers of this museum are modelled on those of the other national museums; there is no departure from the model that we have discovered works well.
Finally, I would observe about this section that, although the primary purpose of the Canadian Museum of Immigration at Pier 21 is not to amass a collection in the same way, for example, that the National Gallery of Canada amasses a collection, the powers and capacities it has allow it to collect museum material — objects and documentary material — but that is not its primary purpose.
There is an amendment to the Museums Act related to governance. That amendment provides that the first director and CEO of the museum will be appointed by the Governor-in-Council on the recommendation of the minister. Thereafter, renewal of that first term or appointments would be made by the board of trustees with the Governor-in- Council's approval.
The same amendment was introduced for the Canadian Museum for Human Rights when it was created in 2008 under the Museums Act to allow a rapid staffing process in the context of a brand-new board, which is also still finding its feet and charting a course for the museum.
[Translation]
In the section on transitional amendments, the bill contains a statutory appropriation of $15 million to enable the museum to operate until its appropriations have been granted by Parliament through a regular estimates cycle. Before the museum can access the funds, its corporate plan, including its projected operating and capital expenditures, must be approved by the Governor in Council.
Finally, I would like to discuss the consequential amendments and the sections pertaining to the coming into force of the bill. Bill C-34 amends a number of other acts, such as the Access to Information Act, the Expenditure Restraint Act, the Financial Administration Act, the Privacy Act, the Public Sector Compensation Act and the Public Service Superannuation Act. The bill amends acts that apply to federal entities across the board. The museum will be added to the list of federal entities to which these acts apply.
The bill provides that its provisions will come into force on a day to be fixed by order of the Governor in Council, which usually corresponds to the appointment of the members of the board of trustees, so as to make the organization a legal entity but also to help the group of people responsible for making the decisions for the institution.
That concludes my presentation, which ended up taking less than four minutes. We would be happy to answer any questions.
[English]
The Chair: You can have more time, if you want.
Ms. Sherwood: I can talk slower.
The Chair: One of the questions I wanted to ask was about the appointment of the board of directors because I could not find it anywhere in the bill. You are saying the board of directors that already exists would continue on; the bill does not have to establish a board or talk about the structure of a board. In other words, the board that is there is the board; is that correct?
Ms. Sherwood: Section 23 of the Museums Act will apply to this museum. It will be a new board of trustees appointed by the Governor-in-Council in accordance with section 23 of the 1990 Museums Act. It is already covered in the Museums Act in that section of general applicability. Therefore, when the new clauses creating this museum slide into the 1990 act, those clauses of general applicability will apply.
The Chair: How big a board will it be? They are Governor-in-Council appointments, but are there any stipulations as to qualifications, relationship to the facility or anything from the provinces on this? Is it all done by the federal Governor-in- Council?
Ms. Sherwood: The answer to the first part of your question is that the board of trustees for the national museum is 11 people. I do apologize; I referred you to the section covering a director. I will refer you to section 18, which covers the board of trustees.
The stipulation is that members of the board of trustees must be Canadian citizens.
The Chair: So there would be 11 Canadian citizens.
Ms. Sherwood: Yes. I do apologize to the committee. That reference was to section 18 of the Museums Act.
The Chair: This museum's mandate is expanding beyond highlighting the immigration that comes through Pier 21. By the way, Pier 21 is a magnificent facility. I have been there as a visitor. Some of our colleagues in the Senate made emotional comments the other day about the fact that they had actually come through Pier 21 in coming to Canada.
Here, we are talking about more than highlighting immigration through Pier 21, as I understand it. It is celebrating the history of all immigration into Canada, is that not right? There will be displays that will deal with people who might in the modern context come through airports in Toronto, Vancouver and other places as well. How will all immigration to Canada be highlighted?
Ms. Sherwood: The board of trustees is accountable for setting the strategic vision for the museum in the context of the mandate set out in the legislation. Over time, the exhibitions will need to evolve. We expect the new management team to develop an overall interpretation plan that starts with the fact that, because of the emotional weight of that particular historic site, it needs to continue to honour where it is located and its own specific history. It needs to reach beyond that and speak as well to those who may have immigrated to Canada through ports of entry on the West Coast and those who may have immigrated to Canada since Pier 21 ceased to operate as an active port of entry in 1971.
We have arranged to lease additional space for the new museum in adjacent facilities. The challenge for the new museum will be to develop the exhibitions that tell that full story of immigration through the decades and centuries of Canada's history.
The Chair: You will not be lessening or diminishing the facilities that exist there now and how they are designed in terms of the Pier 21 experience. You will not crowd in a lot of newer things to cover the broader theme. You will have an additional building to do that in.
Ms. Sherwood: It is clear that the museum right now does not have within its existing 50,000-square-foot footprint enough space to expand its exhibits. The government is investing in new space on the other side of the wall so there is the opportunity to create a continuous exhibit space on the second floor, and will also be expanding into the immigration annex.
The Chair: Is this an existing building?
Ms. Sherwood: Yes. It does need to be retrofitted by the port authority, but it is adjacent in a way that can allow for a breakthrough wall.
The Chair: If you are going to cover the general topic of immigration to Canada, would there be an opportunity for mobile displays that might be moving across the country so that people who cannot get to Halifax can see these on the West Coast or in the Midwest?
Ms. Sherwood: Yes. One of the expectations over time is that the museum will be creating travelling exhibitions. The other thing that would be equally important for the new museum, as it is for Pier 21, is a website that also allows access to people across the country in a different way from visiting the facility or seeing a travelling exhibit, but which nevertheless brings the theme of immigration alive.
Senator Plett: As I raised my hand, Ms. Sherwood answered, at least in part, the question I had for her.
I am from Manitoba. I am very proud of the wonderful museum that we are getting in Winnipeg. I am certainly looking forward to its completion and looking forward to being part of a group that will welcome the Queen there a few days from now.
I have only been here since August, so I was not part of the Senate when the human rights museum decision was made. It is the first national museum outside of the capital. Were all the same hoops gone through for that? Are many of the rules that you are implementing here similar to what happened with Winnipeg?
Ms. Sherwood: Yes, I can tell you that exactly the same hoops were gone through for the Canadian Museum for Human Rights. It was also created through an amendment to the 1990 Museums Act. All of the powers and capacities that are there in this bill for the Canadian museum of immigration are there equally for the Canadian Museum of Human Rights. The provisions with respect to the board of trustees that apply to all national museums also apply to that museum. The provision with respect to the appointment of the first director was also introduced as a modification for the human rights museum.
The one difference between the two bills, and this is the product of our own learning curve, is that this bill contains a statutory appropriation of $15 million to carry the museum through the first few months until the regular appropriation cycle is established.
Senator Plett: Every museum, then, even in the capital here would have a special act for that particular museum and, of course, they would mirror each other but they would all have a separate act?
Ms. Sherwood: Within the 1990 Museums Act, there is a section that is specific to each museum. It does not have its own stand-alone act, but there is a section, for example, that creates the National Gallery, lays out the mandate for the National Gallery just as this bill lays out the mandate for the Canadian museum of immigration. It then sets out the powers and capacities of that museum. In the Museums Act, there is a section that applies to any museum created under the act which would deal with matters such as the appointment of the board of trustees, how directors are appointed, general matters of governance and administration that apply to all of the national museums that are Crown corporations created under the act.
Senator Plett: I am certainly looking forward to welcoming everyone to Winnipeg to visit the museum there and also going to Pier 21 to visit that museum.
Ms. Sherwood: I look forward to Winnipeg.
Senator Merchant: Thank you for being here. This is a very meaningful moment for me because I am one of the people who went through Pier 21. My family came from Greece. My mother came out to join my father, who had been here two years earlier. We were five children and my mother brought us by herself on a ship. It was a big adventure for us. What I really remember about entering Canada is that we were excited because we were coming to join our father. We did not know as young children that we were coming to a new, strange and wonderful experience, as it turned out. I do not remember much about the arrival, the confusion. At that time many Europeans were coming over because it was a decade or so after the Second World War. Even so, Europe was still in poor condition and many people were thinking of emigrating.
In my own experience with the Greek community, there are whole villages and towns where everyone has someone who went to Canada or Australia. I am just wondering how this museum will relate some of these stories and experiences. My parents are now dead. I am not sure how much consultation goes on when you actually set up the museum. Are the communities themselves going to be involved in some way? So many people come from a community or an island; we always end up in the same part of the country when we come here because one encourages the other to come. What is the overall vision for this museum?
Ms. Sherwood: In order to answer that question, I need to back up to an underlying concept in the Museums Act. The national museums are Crown corporations that are at arm's length from the government. The Museums Act actually specifically prohibits the government from directing the cultural activities of the museum. As a department in presenting the bill, the government approves the mandate, the mission statement for the museum, but the accountability for the development of the actual exhibitions, for the fulfillment of that mission, rests with the board of trustees that will be appointed.
Every time we talk to someone about this museum, he or she has a vision for what it could be doing. Certainly, one of the responsibilities of the new board of trustees will be to hear those ideas and to develop a plan that speaks to all Canadians. That is the core of the mission that it has — not only the immigrants who came directly through Pier 21, who were largely European, but also the other immigrants who have come to Canada and arrived at other ports of entry before it existed or after it stopped operating as a port—- through the Toronto airport today or the Pierre Elliott Trudeau airport in Montreal.
It needs to find a way in order to fulfil its mandate to reach out to all of us. However, as government officials, we cannot speak to what the new board's decisions will be as to exactly how it chooses to fulfil that mandate.
Senator Merchant: Before you set up this museum, will the government have some consultations with the communities in the lead up to setting up the museum? Has there been any involvement from the immigrant communities thus far, not just the ones that came through Pier 21?
Ms. Sherwood: We have not had direct consultations with the communities. We have been working primarily with the existing Pier 21 Society and foundation. As government, we have not consulted directly with cultural communities.
Senator Merchant: I look forward to going out and visiting the museum. I am sure it will bring back memories. As I say, I do not recall much about it right now, but I think when you are there, you feel differently.
Senator Ogilvie: I will make my comment directed through the question that Senator Merchant just asked. I think it is important to recognize that the Pier 21 museum has existed for some time, and the very issues that you were identifying are those that were the foundation of the establishment of the previous non-national museum, the one developed by the community and by those persons who took it upon themselves to raise the funds to develop the initial museum.
Those of us from Nova Scotia would encourage you, in particular, and all others to visit the museum. You would see that the museum already comprises a great deal of material that includes interviews, examples, photographs and so on of the various communities that have come through Pier 21. It has been described by those who have come back to visit, as you might, to be a very moving experience and to be tremendously reflective of the experiences they have had. It did, indeed, involve a great number of interviews with people who have come through the port, many of whom donated artefacts and so on that give life to the experience.
I will leave it as a comment as opposed to furthering it with a question.
The Chair: That is fine. As I said, I have been there, so I can vouch for that.
Senator Cordy: Senator Ogilvie will be able to give two plugs in the same round. Pier 21 is an amazing place to visit. I am delighted to be part of the committee that is studying this bill to change Pier 21 into the Canadian museum of immigration.
To my colleagues around the table, if you have not been to Pier 21, you should certainly go. It is interesting, educational and very emotional, particularly for the families who came through Pier 21.
I had the opportunity a few years ago to unveil a plaque for the war brides who had arrived at Pier 21. Afterwards at a reception, a number of them came up to me to tell me their stories. They are fascinating. Many of the stories were very heartwarming, but some of the stories were not so good and they reminded me of that.
I said that I thought today was a celebration, so in my speech, I did not tell about the war brides who arrived and there was no one there to meet them; or they arrived and found out that their knight in shining armour or their knight in military uniform was married to someone else when they arrived. There were also some sad stories, but these are stories of extremely brave women who left their families.
One woman told me that when she told her father she was moving to Canada, he shut himself in the bedroom for two weeks and could not talk to her. She was his only daughter. Of course, we think nothing these days of flying from Halifax to London, it is only four hours, but in those days when you left your family, you might never have returned. There are some wonderful stories to be told.
I cannot pass this opportunity up without talking about the work of Ruth Goldbloom, who did an amazing job. She saw a warehouse on the waterfront in Halifax filled with rats and everything else, and she had a vision and a dream that this should be Pier 21, turned into what she hoped and worked very hard on what would eventually become a museum.
In the meantime, she raised amazing amounts of money, talked to people across the country and made Pier 21 a reality. We cannot look at this bill without thinking of the great work she did.
What I am wondering is, how will Pier 21 change if it becomes the Canadian museum of immigration? You talked about some of the physical aspects — enlarging it, overall interpretation plans, travelling exhibitions, which would be wonderful, and the development of a website because there would now be more money available to do those kinds of things. Aside from the physical things, will Pier 21 change substantially now that it will become a museum?
Ms. Sherwood: Certainly, the governance changes in the sense that the board of trustees will be appointed by the government. It is limited to 11 people. The existing Pier 21 board has more than 20 people.
Pier 21 had, over the last few years, articulated a vision beyond the specific Pier 21 site. It had begun to implement that vision — through its travelling exhibitions, its temporary exhibits room and its research centre, which now holds ship records, not only for ships that docked at Pier 21 — in some of its other programming. It did not have the resources to take that vision all the way to fruition.
I think the opportunity is there for the new board of trustees, working with the existing Pier 21 staff who will be offered two-year term positions by the new museum — we have guaranteed that in our agreement — to take the germs of all of the ideas that Pier 21 had as to how to expand its vision and to develop the program that will do that. I am very hesitant to say "and therefore it will have an exhibition on X or Y" because that would be my speculation as to the exhibit that I would want to put in place, but that is really not our role as officials.
Also, because it is explicitly a national museum that is a federal Crown corporation, which by definition belongs to all Canadians, it may approach its mandate not from the site out, but from what is not already present in the site in, if that is not too abstract a concept. I do expect that it will be hearing from people across the country who have, perhaps, very different immigration stories. It will be its responsibility to understand the varying perceptions of the immigration experiences that there are across Canada and to represent that in the museum.
I am not trying to be evasive, but I cannot give you a specific sense that today there is that wonderful Pier 21 exhibit on the second level, and in the Chrysler pavilion next year, there will be this kind of an exhibit. We are simply not in a position where we have the right to do that, given that is the role of the new board of trustees.
Senator Cordy: Will there still be a place for the volunteers? Currently, Pier 21 has a large number of volunteers who work there because they are passionate about what it means to them personally, or to the people of Canada who came through Pier 21 as immigrants. Will that aspect change? Will there still be a place for volunteers in the museum?
Ms. Sherwood: I expect that, as with every other national museum, there will be an active volunteer program. One of the considerations in looking at where national museums are located is whether they do have a strong local base of volunteers to draw on because of their importance. The role that volunteers play today in Pier 21 is very compelling, because many of them have their own immigration stories, and that is part of what brings the facility alive.
Senator Martin: I look forward to seeing Pier 21. I have listened to some of the statements made in the chamber. I listened to Senator Merchant speak about her personal story, and I see my own reflected in that. My father left two years ahead of us and my mother, with three children in tow, landed in Vancouver.
In the stories of all immigrants there are some common threads. For anyone who has gone through such an experience, it is a collective story for our country and the families.
Halifax is a long way from Vancouver, and not everyone has the opportunity to go Pier 21. It is one thing to look at the website and visit virtually, but it is another to see it with our own eyes and feel the stories come to life. Has there been discussion with the minister and your department on having a museum similar to Pier 21 in Vancouver, be it an extension or something separate?
Ms. Sherwood: I cannot speculate about future government decisions, but under the capacities and powers section, this museum, as every other national museum, will have the power to open an exhibition centre anywhere in Canada. The potential to do that is foreseen in the act, although it is obviously a question of resources and government decisions at a given time.
Senator Martin: I like that potential. Although I have not seen Pier 21, I understand there is a multi-purpose space where receptions and weddings take place. Will that sort of multi-purpose use continue after the enactment of this bill?
Ms. Sherwood: All national museums are expected to generate revenues. Proposed paragraphs 15.6(1)(o) and 15.6(1)(p) of the bill contain two very relevant concepts. One is the ability to lease or otherwise make available its facilities for any purpose, and the second is the ability to charge fees for its goods, services, et cetera.
Pier 21 has an amazing track record of revenue generation and a very active program of facilities rental. I would expect that the new board of trustees looking at a revenue plan would want to study very closely how they have managed to be so successful.
Senator Martin: It is also an opportunity to engage a wider community. I attended a citizenship ceremony at the Canadian War Museum last week. It was definitely symbolic, and a memorable experience for me as well. I am sure those kinds of uses will continue.
Ms. Sherwood: Pier 21 has hosted that as well.
[Translation]
Senator Champagne: Senator Martin asked one of my questions. From what I understand, currently you can lease space for social events and that will continue under paragraphs O and P. People should be made aware of that information. I would think that people who came here 50 years ago and who want to have a family reunion with the next generations would definitely be interested in that. What a wonderful location. I hope that the new Canadian Museum of Immigration will let people know they can do that, because it is not common knowledge and people who would like to get together at Pier 21 can hold a family reunion there or celebrate the anniversary of someone's arrival; it would interest someone with descendants who is now part of a Canadian family.
As Canadians, I hope that this is a huge success for all of us. We need to get the word out because not only do we have people who came from overseas, but also many of our people who went off to war from there. I have uncles who left for the war from there. I would think to myself, "Is that one going to leave"? We were almost happy when we heard that one of our uncle's feet were too flat for him to go off to war. They would go through our town, Saint-Hyacinthe, on their way to Halifax. There are also all those people whom we should tell that this would be a great place for a gathering. Thank you for keeping up the good work.
[English]
The Chair: Thank you for that comment.
There being no further questions, I will thank our panellists for being here and engaging in this conversation with us.
Is it agreed, honourable senators, that we proceed to clause-by-clause consideration of the bill?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1 stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 7 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 8 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 9 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 10 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 11 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 12 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 13 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill carry?
Hon. Senators: Agreed.
The Chair: Does the committee wish to consider appending observations to the report?
Hon. Senators: No.
The Chair: Is it agreed that I report this bill to the Senate?
Hon. Senators: Agreed.
The Chair: I shall do so.
We will continue the committee hearing with respect to Bill C-11, An Act to amend the Immigration and Refugee Protection Act and the Federal Courts Act. We have been dealing with this since this morning, and we are picking up a little bit earlier than when we were scheduled. I appreciate your willingness to start earlier.
We will have a disruption around 5 p.m. where we will have to go over to the Senate for a vote. Hopefully, we will be back by 6 p.m. By starting early, we may be able to finish by then. If not, if you can stay around, that is great. That is up to you as to whether you are able to do so or not.
Let me briefly introduce for the members of the committee who we have before us.
We have Janet Dench, who is from the Canadian Council for Refugees. She is here with Elizabeth McWeeny, past president. Ms. Dench is the executive director of the Canadian Council for Refugees, which is a non-profit umbrella organization committed to the rights and protection of refugees in Canada and around the world, and to the settlement of refugees and immigrants in Canada.
From the Canadian Bar Association, CBA, we have Mitchell Goldberg, executive member of the CBA national citizenship and immigration law section. He was admitted to the Quebec bar in 1989 and currently specializes in refugee law. He began his refugee and immigration law practice in Montreal after volunteering for a human rights organization in Guatemala. He is a founding member and former president of Action Réfugiés Montréal, a volunteer organization that assists refugees. In 2008, he was elected to the national executive of the Canadian Bar Association's immigration section, and since 1990, he has represented more than 1,000 immigrants and refugees at all judicial levels.
He is here with Kerri A. Froc, a staff lawyer, Law Reform and Equality with the Canadian Bar Association. Prior to joining the association staff in 2005, she worked as a staff lawyer for the Women's Legal Education and Action Fund, LEAF — I remember it well — and as a lawyer in private practice in Saskatchewan focusing on civil litigation, administrative law, and human rights and constitutional law.
I will introduce Lorne Waldman when he is here. He is not late; we are early. I will introduce him later. In the meantime, we will start with Janet Dench.
Janet Dench, Executive Director, Canadian Council for Refugees: Thank you for the opportunity to talk about this important bill.
The refugee system exists to offer protection to people fleeing oppression. The system must not itself oppress the very people it is intended to protect.
[Translation]
As the act states, the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted. All refugees flee oppression, but some face multiple levels of oppression that require our attention. We are referring notably to women persecuted on the basis of gender, including victims of sexual assault, individuals persecuted on the basis of their sexual orientation or gender identity, children and survivors of torture.
We appreciate that one of the goals of the current bill is to ensure that those who do not need protection are quickly rejected. We do not object to that goal. Our concern, however, is that some measures intended for that purpose will hurt the most vulnerable refugees and may lead to them being denied the protection they need.
[English]
We also recognize that there are major problems that need reform in the current system. These include long delays for many claimants. Bill C-11 addresses this but risks going to the other extreme. Too fast is unfair. Proposed timelines for the interview are 15 days, and for the hearing 60 days or 90 days, depending on the category.
A person who has no need of protection and perhaps has arrived with an invented story will have no difficulty with a 15-day interview. However, we ask you to consider the impact on a woman who has been sexually assaulted and who has not yet told anyone exactly why she fled, or a gay man who has spent his whole life afraid to tell anyone who he really is.
Similarly, some claimants will have no trouble preparing themselves and their evidence for a hearing 90 days or even 60 days later — for example, a high-profile political activist who is mentioned in newspaper or human rights reports. However, the persecution faced by women, by gays, by transgender persons, by members of neglected ethnic or religious minorities, are generally under-reported. Finding documentation to substantiate a claim is much more time- consuming.
Rushing such claimants to a hearing before they are ready may well lead to oppressed persons being wrongly rejected.
Parliament needs to ensure that timelines are reasonable and are implemented in a way that is sensitive to the needs of the most oppressed.
A second problem with the current system is the lack of appeal. We, therefore, welcome the commitment to implement, at last, the refugee appeal. However, proposed timelines for filing and perfecting the applications would make it completely meaningless. These timelines are not part of the law, but if implemented as suggested, the law would not serve its intended purpose. In order to function, the refugee appeal division needs decent submissions. It will be difficult enough for a rich, healthy and well-connected refugee to get a properly prepared submission in within 15 days. Imagine a woman who speaks neither English nor French, is dependent on legal aid because she has no money, and is suffering from post-traumatic stress disorder because of the torture she experienced.
A third issue I want to highlight is the quality of decision makers. There is currently extremely inconsistent decision making from member to member, and this is clearly demonstrated in statistics. This makes the current system something of a lottery. It is critical that the selection process of decision makers be improved. For the refugee protection division, RPD, under Bill C-11, members will be hired in accordance with the rules of the Public Service Commission. It is not clear to us that this will mean that the best qualified potential candidates are hired.
Members of the refugee appeal division, RAD, on the other hand, will be Governor-in-Council appointees. Are RPD members simply going to be moved up to the refugee appeal division? Will the same selection process be used? If we have the same inconsistent quality of decision making at the appeal that we currently have at first instance, the problem is simply magnified because appeal decisions have precedential value. Bill C-11 still offers no process in law for the selection of RAD members.
I want to also mention some new issues in Bill C-11. Currently, before removal, refused claimants have an opportunity to present new evidence of risk. Under Bill C-11, there is no mechanism to deal with individual changes of circumstances for 12 months after a claimant has been refused at appeal. Suppose, for example, a claimant learns that several family members have been arrested as political dissidents and she will face the same risk of imprisonment if she is removed. The inability of the system to consider this new and important evidence is a major gap in the law. It is not likely to affect many people, but for those individuals it may be a matter of life and death. Canada will be violating its international human rights obligations if we send them back to persecution.
Second, turning to designated countries of origin, we are strongly opposed to the introduction of a list of "designated countries of origin." It is wrong on principle. Refugee determination requires the assessment of an individual case, not judgments on countries. Such designations also politicize the refugee system in a most unfortunate way. We are particularly concerned about the potential impacts on women, lesbian, gay, bisexual, transgender and transsexual persons, and children and members of racial and ethnic minorities. These are all groups whose fundamental rights are most likely to be at risk in countries that otherwise may seem to be reasonably safe.
Just to conclude with some major recommendations, we recommend that the law be amended immediately to address the major shortcomings. Failing that, the Senate can play an important role in minimizing the negative consequences of weaknesses in the law by giving guidance as to implementation. As a general point, it is crucial that there be full consultation on draft rules and regulations.
The Chair: We will now go to the representatives of the Canadian Bar Association. Mr. Goldberg and Ms. Froc will split their time.
Kerri A. Froc, Staff Lawyer, Law Reform and Equality, Canadian Bar Association: The Canadian Bar Association is pleased to appear before this committee today on Bill C-11, the Balanced Refugee Reform Act. The Canadian Bar Association is a national voluntary association with about 37,000 members across the country. Its citizenship and immigration law section comprises about 1,000 lawyers with expertise in all areas of citizenship, immigration and refugee law.
The primary objectives of the organization are improvements in the law and in the administration of justice. It is through this optic that we make our comments here today.
For the purposes of our appearance here today, we have circulated to you the submission that we made before the House of Commons Standing Committee on Citizenship and Immigration, but of course we will be confining our presentation to the remaining issues of concern after revisions were made to the bill subsequent to the Commons committee report.
I will ask Mitchell Goldberg, who is an executive member of the CBA's citizenship and immigration law section, to make substantive comments about the bill.
[Translation]
Mitchell Goldberg, Executive Member, CBA National Citizenship and Immigration Law Section, Canadian Bar Association: Mr. Chair, when this process began, the Canadian Bar Association felt that there were some fairly significant problems with the bill. We recognize, however, that some major amendments have been made, and, more importantly, we see that those amendments have ensured that everyone has access to an appeal on the merits. There are not even restrictions on applicants from designated countries. We are very glad to see that such a change was made.
As for humanitarian considerations, we were very concerned that there were restrictions on applicants seeking protection on humanitarian grounds. We are very grateful for the work done by all the political parties, who put the interests and protection of refugees above political interests. We can now say that we support the bill, despite the fact that, in our view, there are still some outstanding issues.
[English]
We are concerned about the one-year bar on the temporary residence permits. Just to outline a few remaining concerns, as I said in French, we are not calling for amendments to this bill because we think it respects a very difficult balance that was made among the political parties, but we are concerned about the temporary resident permits that are being banned for one year. As the Canadian Council for Refugees said, there is no provision for new evidence of risk, and that we think is not Charter-compliant.
We are also concerned about the limitations on new evidence at the refugee appeal division, although we do recognize that significant improvements were made on the version that is in the present law. Section 110 of the present law did not allow for any new evidence. Now there are limitations on new evidence, but we are still concerned that it does not go far enough. We are also concerned about delayed implementation of various parts of the bill. We agree with the point of the Canadian Council for Refugees with regard to designated countries. The Canadian Bar Association believes that there should be no discrimination on the basis of nationality. We are concerned that the process politicizes the refugee determination system by creating this designated class.
However, as I said before, we are pleased that at least everyone will have the right to an appeal. This conforms to the concerns of the United Nations High Commissioner for Refugees on the use of designated safe countries.
We want to highlight three issues for regulations that we hope the Senate might consider in your report. First, in order for there to be a meaningful application on humanitarian grounds, it is not enough to have it remain in the act. If the Canada Border Services Agency were to remove people systematically without giving them a chance to make an application, without giving them a chance to have a decision on their humanitarian grounds application, this would render that part of the law meaningless. Right now, people are able to, most of the time, have a decision made prior to removal. We think it is very important that there be administrative policies in place to protect the rights of people having a humanitarian grounds application.
We also agree that you cannot have an effective system — no matter how well crafted it is, no matter how fair and fast it appears on the face of it — if you do not have merit-based appointments. The Senate and the House of Commons have heard this for years from all sorts of people. I hope we will be the last people to have to say this.
There have been improvements in the system over the years. Both governments have made some steps along these lines. However, I think the Canadian people deserve to have a system that is 100-per-cent merit-based, and refugees desperately need it.
I want to note that the Auditor General issued a report last year in which she indicated that most of the IRB, Immigration and Refugee Board of Canada, reappointments are not based on merit. I think she said that, 56 per cent of the time, the IRB's recommendations are ignored by the minister. She issued that report in April 2009.
We are also concerned about the timelines for the information gathering interview — the refugee protection division and the refugee appeal division. I will not repeat what the Canada Council for Refugees' position is because we share those concerns. That said, I would like to go into more detail about the interview.
I have been recently told that the IRB is budgeting four hours for this 15-day interview. You probably know that, right now, on average, a refugee hearing takes less than three hours. Therefore, the interview itself will likely be longer on average than a hearing.
This brings up a whole bunch of problems. There are the concerns that Ms. Dench raised with regard to fairness for vulnerable people. We share those concerns. There is also the potential here for this process to turn into an administrative swamp where a backlog could grow at that very first stage. We have seen this in the past with the credible basis inquiries. We have seen it in the 1980s with the process whereby there were interviews that were not before the decision maker.
Think about what would happen if a refugee claimant and their counsel contest what was supposedly said at that interview. They will be given electronic copies of the interview, but who will pay for transcripts? Will the IRB member listen to three or four hours of an interview? Will the refugee claimant and their counsel pay for transcripts? There is every potential there for the system to break down.
We hope the interview will be used to schedule, as required in the act, and also to identify vulnerable claimants, to identify people who need designated representatives, perhaps to refer people to counsel if they are unrepresented, and perhaps to help them with questions regarding the forms they have to fill out. We hope that process will be done in a way that will be fast and fair.
The Chair: Thank you both. We are now joined by Mr. Waldman, who comes as an independent lawyer. He received his law degree from Osgoode Hall in Toronto. He practices exclusively in the area of immigration refugee law. He is an author and editor of Canadian Immigration & Refugee Law Practice, which has often been cited as an authority by the Federal Court and the Supreme Court of Canada. He has written extensively in the area of the Charter and its impact on the rights of immigrants and refugees. He has written many articles on human rights issues for various newspapers.
Also interesting, he successfully acted as co-counsel for Maher Arar at the public inquiry into the circumstances behind his deportation from the United States to Syria. Welcome. You are on time. We were early. Please go ahead, Mr. Waldman.
Lorne Waldman, Lawyer, as an individual: Thank you for inviting me. I have to say that I find myself in a strange position. Usually when I come to speak before parliamentary committees, I am here to urge the committees to make amendments to the legislation. I thought that would be what might happen this time.
Having said that, due to the parliamentary process and the successful negotiation amongst all of the political parties, what is now before you in the Senate, which I think is a compromise, I am urging the Senate to pass this without amendment. It is the first time I can say this. I have appeared before parliamentary committees since 1976. This is the fifth time I have appeared before either the Senate or the House of Commons, sometimes both, and this is the first time I am making this request.
The bill is not perfect. I think you have heard from the other speakers about things that we might like to see different. However, on balance, I think it is a compromise. The government gave a lot and the opposition parties and the NGOs, non-governmental organizations, gave a lot. At the end of the day, the positive effects of the bill far outweigh the negative ones, in my view. I think it is a compromise that should be embraced by the Senate.
I think we can learn a lot from the process that occurred in this case. Independent of the content of the bill, the different opposition parties worked together with the non-governmental organizations and experts in the field, sought their advice and proposed amendments. The government was flexible enough to enter into negotiations which came up with a compromise. That is something that could well be emulated in the future, given that it is likely — and may well be — that we will have minority governments for some time to come.
Having said all of that, there are positive aspects of the bill. The creation of a refugee appeal division is something that we, as lawyers and non-governmental organizations, have long advocated for. It is an extremely important achievement. It is important that, if the Senate issues a report, one of the things it should highlight is a need to ensure that the members of the refugee appeal division are the most senior, most experienced and most expert members of the Immigration and Refugee Board. They will be the ones who will be charged with reviewing the decisions by the first- instance decision makers. They should be people with the accumulated expertise and knowledge. I would hope the Senate in its report would comment on the need to ensure that the RAD members are senior.
One of the changes of the bill is switching from Governor-in-Council appointees to public servants at the refugee protection division, which is the first level division that will make the initial claims. This was somewhat controversial. Some of the refugee rights groups and others were concerned about this. The key issue here is that experience in other countries shows that, if the positions are entry-level positions that do not encourage senior qualified people to apply, you tend to get very junior applicants who see it as an entry position into the government and who then leave.
What you want to create is a body of skilled, knowledgeable senior decision makers who develop expertise and who see this as a career they want to stay in for a period of time. The expertise you need to be a competent refugee decision maker is not something you gain overnight; it takes a period of time. This was a matter of some discussion, and I would urge the Senate in its report to encourage the government to ensure that the positions created for refugee protection members are senior enough positions to attract senior applicants who would see this as a career and not just as an entry point into the government.
In terms of the categories, PM-6 is what we were talking about as a minimum entry level for this category. If it is anything less than that, you run the risk of creating decision makers who will not be competent and experienced. As all the speakers have said, that must be the key point.
I am making points here; these are not things in the legislation itself. They are things the Senate can certainly comment on and it would be important that they do.
The second key point with respect to the decision makers is that the process has to be an open one. We have been assured by the chair of the IRB that it would be important. However, I think it is important for the Senate to emphasize the need to try to attract the most qualified and experienced people as possible to apply for these positions through an open competition.
With respect to the safe country of origin list, you have heard some of the speakers suggest that they oppose this list. Quite frankly, I agree. I do not think it is something that is necessary.
Having said that, the government did agree to an extremely important amendment. The original proposal of the safe country of origin list would have had the effect of denying people access to the appeal process. The government compromised by changing the legislation so that everyone gets an appeal, and if you are on the safe country of origin list, the effect of that would be to give you an expedited hearing process. This is in keeping with the recommendation made by the United Nations, who appeared before the House of Commons committee and said if this type of list exists, it should not have the effect of denying access to the appeal.
As I said, I agree that it is probably something I would rather not see in the legislation, but it was part of a compromise. At the end of the day, I would not suggest that you vote against the legislation because it is here.
This is not something in the legislation, but one of the concessions that the government made was to include in the legislation and the accompanying regulations a requirement that there is a committee that recommends to the minister what countries would be on the list and the committee must have independent experts. It is important for the Senate to urge the government to ensure that the experts who are appointed to represent the public interest, and to ensure that only countries that deserve to be on the list are on the list, are competent and qualified experts who have the public's confidence, and there should be some kind of independent appointment process for those experts. Again, this is not something in the legislation, but it is something that would be important for the Senate to point out.
One of the key aspects is a change in the process that calls for an interview followed by a hearing. The time frames are not in the legislation, but the government has told us that target time frames are 15 days for the interview and 90 days for the hearing process. I would urge the Senate to state that those are minimum time periods and that anything short of that would not be acceptable.
The key issue that emerges through all of this is the need to ensure that refugee claimants have adequate legal representation. This is again not something that is part of the legislation itself, but when there have been other major changes to legislation, the government has in the past provided funding for legal aid. We believe it is essential that refugee claimants have competent legal representation, especially within the context of a legal process where interviews will be conducted within 15 days. I would urge the Senate to note the need to ensure that legal aid is made available to refugee claimants.
Having said that, as with everything, this legislation was a compromise. Some of us here on the panel could tell you long stories about how we worked with the opposition and with the government to try to come up with a compromise. It is not perfect, it does not have everything we want, but as Mr. Goldberg said, on balance, we support it and we would ask you to pass it.
The Chair: Thank you very much to all of you. We will now carry on a dialogue with the members of the committee. I will start off with a couple of questions.
Ms. Dench, you spent a fair bit of time talking about the 15 days, yet the legislation clearly says at the earliest 15 days, so there is a provision for a longer period of time if some of the conditions that you talked about prevail. Does that not cover the situations you are concerned about?
Ms. Dench: I think we are speaking to our concerns about how it will be implemented. It says no sooner than 15 days, and as you point out, the law therefore provides for it to be potentially postponed because a lawyer is not present, or postponed because a claimant needs more time to get herself ready.
However, it depends on how it is interpreted and how it is implemented. We had a meeting of the Immigration and Refugee Board consultative committee last week, where we were told that Parliament is giving a very clear message that they want the process to be extremely fast. They were not seeing that they could interpret the law in such a way as you are suggesting.
The Chair: This morning, the minister said he wanted a system that is fast and fair. You are saying that you are concerned there is too much focus by officials on being fast and not enough on being fair. Is that right?
Ms. Dench: Yes, and we are hoping that the Senate will ensure that we do not lose the emphasis on fairness and that fairness not be sacrificed for the goal of fast.
The Chair: You also indicated a concern about changes of conditions in various countries. Again, the minister this morning said that he can act fast if there are changing conditions in countries. The political situation can change, and they need to be on top of that in order to ensure they are not sending people back to a condition that may not have existed earlier in the process. Does this not cover that problem?
Ms. Dench: If you are referring to the section in the bill that allows the minister to designate a specific country that would be exempt from the 12-month rule that denies one access to the pre-removal risk assessment, what they have in mind there, undoubtedly, is a change of situation in the country of origin, a change in government or other dramatic political condition.
That will address many people's situations, but the remaining concern is for people who are not affected by a generalized change in conditions but a personal change in conditions. There is not a provision in the bill that allows the minister to exempt an individual because the individual situation has changed.
I provided the example of an individual whose family members had been arrested. It is not the sort of generalized situation of change that would lead the minister to say everyone from this country should now get access to the pre- removal risk assessment, but what about that one claimant who has now received terrifying news that reinforces her fears that she will be put in jail? In fact, if someone looked at it, they might well agree she will be put in jail, yet there is no provision in the bill, as it stands, that would allow her to have those risks assessed.
The Chair: Not even in the human and compassionate area? I sensed that everything was covered one way or the other here.
Ms. Dench: As I say, it is not something that will likely affect a large number of people. There was one amendment brought forward by one of the opposition parties that would have allowed for some kind of reopening at the board so that one could make an application and put in information to say this is what has happened, my family members are now in jail, please take a look at this. However, that amendment did not go through.
There is the option of making an application for humanitarian and compassionate; however, there is no stay of removal in the meantime, and the bill has also specifically said that humanitarian and compassionate decision makers should not consider section 96 or 97 factors, which are the refugee definition and the other risks if you are returned. Therefore, you would be in a difficult situation in which you have new evidence that proves you are a refugee, yet the law says you are not supposed to make reference to the refugee definition when making submissions under humanitarian and compassionate.
The Chair: Do any of other panelists have any comment on this concern?
Mr. Waldman: I think there is validity to the concern in the sense that this appears to be an area where there might arise a circumstance that one will fall within this very narrow gap. We have to consider that.
The bill allows the minister, if there is a change in country conditions, to exempt those people from the one-year bar. You have a right to make an application on humanitarian grounds on an individualized basis, and that covers most. However, there may be the case where an individual has an issue of risk that is excluded because of the amendment and does not come within the change in general conditions. I believe that if such a circumstance arose, there would be a legal remedy available under the Charter. Ultimately, it is quite clear under the Charter of Rights that we cannot move someone to a country where he or she would be at risk. If that circumstance arises as a factual question — it may or may not — if I were the person's counsel, I would make an application under the Charter. I think it would be difficult for a court to sanction the deportation of someone in the face of credible evidence that they would be at risk. The Charter is the ultimate remedy available in that kind of situation.
Senator Plett: I agree with Mr. Waldman and Mr. Goldberg that the bill is not perfect, but 308 parliamentarians worked long and hard at reaching a compromise. I liked the bill better before the compromises, so we at least agree that it is not perfect. However, there were compromises made and I appreciate that we have something.
Prior to coming to the Senate, I spent about seven years travelling coast to coast to coast and had the opportunity to talk to refugees and immigrants across the country. I know this might sound partisan, but I heard repeatedly what a wonderful job this government was doing for the immigrants and refugees in our country. I heard that when in Vancouver speaking to the wonderful Chinese and Korean communities there, when in Brampton speaking to the Sikh community there, et cetera. I repeatedly heard praise for our immigration minister, who has been at this job for a little over a year.
My questions are directed to Ms. Dench's organization.
In the time that Minister Kenney has been in charge of immigration, can you think of something he has done that is praiseworthy? I get the feeling that your organization has feelings of negativity toward the government and the immigration minister.
I will ask my second question before you respond to the first.
Your organization has long advocated an increase in the number of refugees resettled by Canada and for increases to the refugee assistance program, but when Minister Kenney announced a 20 per cent increase in the target for resettled refugees and a 20 per cent increase in the refugee assistance program, you were critical. In fact, you said that it was, and I quote, "extremely disrespectful."
Why would you attack the government for doing what you asked it to do? In your opinion, do most private sponsorship agreement holders agree with you that increasing the number of privately sponsored refugees Canada accepts is, in your words, extremely disrespectful?
Ms. Dench: For clarification on the last point, I think the words are taken slightly out of context. I never said that it was disrespectful to increase the numbers of refugees being resettled. In fact, we were delighted, and I would say that we are very grateful to the current minister for his interest in resettled refugees. We wish to see an increase in the numbers of refugees resettled.
What I said was disrespectful was that the initial release put out by the minister contained an error. I am sure it was not the minister's fault personally, but it suggested that the refugees who were intending to come would be visa-office- referred refugees, and I said it would be disrespectful to make an announcement, which would involve enormous expense from the private sponsors, without first consulting the private sponsors. I asked the private sponsors whether they knew they would now be responsible to pay to bring in the extra refugees that would be selected by the government rather than by the private sponsors, and they said they had not been consulted.
It turned out that it was a mistake in the press release, and the press release was corrected. Of course, that changed the picture entirely.
Senator Plett: I am sure you issued a press release apologizing for your comments.
Ms. Dench: We did not issue a press release initially. Also, the minister never issued a press release to apologize for the error in his press release.
Senator Plett: You are suggesting that you were misquoted, and I am not sure that you were, and now you are saying you know that the press release was in error.
The Chair: We are getting off the topic of Bill C-11.
Ms. Dench: I wrote to the minister's office to explain the circumstances and to apologize for any misunderstanding.
The Chair: I will now go to Senator Jaffer from British Columbia.
Senator Jaffer: I want to recognize the tremendous work that the Canada Council for Refugees does and to thank you personally for the great work you do. I have worked with you for many years. The points you have raised today are very important, and I thank you for that.
I would like a clarification from all of you. I understand that, in 2004, the backlog was 20,000 refugees and that now it is 60,000. What went wrong with the system since 2004? Why is there such a tremendous backlog?
Mr. Goldberg: The backlog was essentially eliminated by 2006 and then the new government almost stopped making new appointments, to the point where up to 40 per cent of the positions on the Immigration and Refugee Board were left vacant, and this created a new backlog. There were other factors, but that was the most important.
To the credit of Minister Kenney, when he was appointed minister, he made a great number of appointments and we got very close to a 100 per cent complement, but by that point the damage was done and a new backlog had unfortunately been created.
Senator Jaffer: Thank you for that clarification.
Mr. Waldman, you have suggested that this is a compromise and a good start to move on to the next stage of this process. Do you think that we should suggest a review in a year, perhaps, of how the new system is working out, with a report to Parliament on how things are going, what is happening with the backlog and some of the concerns that have been raised today?
Mr. Waldman: Having appeared with the CBA at the parliamentary review of the anti-terrorism legislation, I think it is always a good idea for Parliament to review whether the legislation has had the effect that it was intended to have, and whether issues have arisen that need to be addressed. Some of the speakers have already indicated some of their concerns. If I remember correctly, this has arisen in other cases, and I believe that you do not need to make an amendment to the legislation, but rather that you can make a resolution of the committee to that effect. If I recall correctly, you could invite speakers to your committee in a year or two to review how the legislation is being implemented.
You must remember, however, that if the bill is passed, parts of it will be proclaimed immediately but other parts will not be proclaimed for between one and two years, so any review of the legislation would have to wait until the bill has been implemented. I think a year after the bill has been implemented would be a good time to take stock. I am sure that issues will arise.
Part of what has happened in the past is we wait too long to detect the problems. By the time we get around to looking at how things are moving, huge problems have arisen and it becomes much more difficult to fix them. It is a very useful suggestion to make a recommendation to the Senate that a year after implementation, the Senate conduct hearings to see how effective the new legislation is — how it is working and what concerns the NGO community and others have about how it is being implemented.
Senator Jaffer: I commend the minister for bringing the appeal process; I am happy about that, but that will not be implemented for two years. We understand a new process has to be put in place. I would have preferred a year, but the process will not be in place for two years.
What happens in the meantime? There will be no appeals for the next two years, right?
Mr. Goldberg: That is right, and I think that is a very serious concern. The concern that human rights' organizations, lawyers' groups and advocates have had for many years will remain for two years. Life and death decisions are being made and there is no appeal on the merits until the new bill is implemented. That is a very serious concern.
We hope that the minister will use his powers to provide maximum flexibility in terms of looking at applications on humanitarian grounds, pre-removal risk assessments and temporary resident permits, et cetera. Many tools are available that are, in our opinion, poorly used or inefficiently used that hopefully can help mitigate the damage that will continue to go on for the next two years.
The Chair: This morning, I raised with the minister this matter that parts of this bill will come into effect immediately, parts of it not for a couple of years and one part of it even for three years. He indicated today that it is his goal to get the whole system into effect within a 12- to 18-month period. I will just pass that on.
Do you have anything further, Senator Jaffer?
Senator Jaffer: If I may, did either of you want to speak about the appeal process and the concerns? More than the appeal process, you did mention the humanitarian compassionate process, but the thing that concerns me is that you have to show hardship and not refer to the original application. I understand, if I am not mistaken, that you have to show further hardship and not refer to your original claim. May I get your comments on that?
Mr. Waldman: This amendment was a compromise. The government's view was that, given that persons would get a refugee claim, where issues related to risk as understood in the definition would be considered, there was no need to have that as part of the humanitarian and compassionate review. There is some logic behind that. Aside from the situation that Ms. Dench mentioned, where there is a change that occurs after the refugee decision, it makes sense to have an expert refugee body make those types of decisions.
The concern, however, was there has been a recognition in the jurisprudence, and also by those of us who work in the field, that there are people who assert risks that do not come within the refugee definition. The refugee definition is basically it has to be a particularized risk directed at you. There are some exceptions, but that is the general concept. There are some situations where the refugee board will find you may be at risk, but it is a risk that is faced by everyone; it is a generalized risk.
The jurisprudence has excluded that from the refugee definition. The concern we had with the way the bill was drafted was that we were worried that, if you exclude any consideration of risk from the H & C, that would get lost. Now the rule is, if it is something that is not a particular risk, it is not part of the refugee system, but it can be considered in the humanitarian application. The introduction of the amendment that said that, notwithstanding, you can consider anything that is related to the refugee definition — you can consider hardship — was intended to cover those generalized risk situations.
I think it probably does succeed in doing that. Again, it was a compromise, but I think it works to alleviate many of the concerns we had over that particular change.
Senator Jaffer: May I come on a second round?
The Chair: There is no one left on my list, so you might as well keep going.
Senator Jaffer: Ms. Dench or Ms. McWeeny, did you have any comments to make on that?
Elizabeth McWeeny, Past President, Canadian Council for Refugees: I would like to respond to Senator Plett's comments earlier, particularly around the response that the CCR gave to the announcement on the increased resettlement. Certainly, we have always advocated for increased numbers for resettlement.
In addition to what Ms. Dench and others have already said, we were also concerned about the linkage between that announcement and the conditionality of getting the legislation through, getting the reforms through on the protection side. In our mind, those two should never be linked. Protection is a right; asylum is a right. Resettlement is something we do as responsibility sharing with other nations. It is in addition to, but not conditional or contingent on, our obligations for protection.
When the two announcements were made one day after the other, with very strong remarks from the minister around we will get the resettlement when we get the reform, that caused us quite a bit of concern.
With respect to have we found anything to praise the minister? You do not want to go there? Fine.
The Chair: No, we have gone through that conversation. Let us stick to Bill C-11.
Ms. McWeeny: In terms of Bill C-11, one of the other things we probably should be looking at very carefully is going back, again, to the timelines. I am a sponsorship agreement holder, but I also work with refugees in protection.
To really emphasize the 15-day thing, I interview refugee claimants when they first come to the office; and my first opening line is, "Why should Canada accept you as a refugee? Tell me what has happened to you." You might get one sentence. It takes a very long time for some people to be able to tell their story.
They do not even trust themselves to be able to speak the words; it is not just about trusting the person they are telling it to. We have to be very sensitive to the fact that some people cannot say what has happened to them until there is a certain level of comfort with the interviewer, with the people who are helping them prepare. As an NGO, not a lawyer, I used to help them prepare their PIFs, personal information forms. That was a very long process.
When we go to the interview now, we are looking at something which, if it goes beyond the administrative, has the potential to disregard that vulnerability. It is very important that when the Senate makes its report, that is something which is given a lot of weight.
Senator Seidman: Thank you very much for coming to discuss these very important matters this afternoon. This bill has probably been a labour of compassion and commitment for this minister and for the government for about 18 months by now. With consultation meetings with the stakeholders, other political parties and lots of advice from experts, we have a non-trivial bill that many people may say is not perfect, but it very clearly provides remedies for parts of the system that are very broken.
Mr. Goldberg and Mr. Waldman, you have both spoken to this and you work actively with asylum seekers as legal advisers. Could you tell us a bit more about why you think these proposed changes are necessary to Canada's refugee system?
Mr. Goldberg: The first thing I can tell you is that 20 years of working as a refugee lawyer, one of the most terrifying things for my clients is walking into that hearing room without knowing who the refugee protection division board member will be. They are right to be terrified, because there is a huge difference between various members. That is statistically borne out. Some members have a 5-per-cent acceptance rate while others have a 90-per-cent acceptance rate, from the same country. We have had to work all these years without an appeal on the merits. It is true that people could make a leave application to the Federal Court to ask in writing for permission to hold a hearing for the lawyers to argue on points of law, not on credibility issues or on the merits.
There are limitations to this process as I mentioned, with regard to new evidence but, depending on how it is implemented, which I emphasize, this has the potential to have a serious impact on these life and death decisions. When I say "depending on how it is implemented," I am thinking about the fact that the IRB, as Ms. Dench mentioned earlier, was told last week by the minister's office that they would like to see the delays for the refugee appeal division at 15 days. In other words, we would have 15 days to file a notice and written submissions. I hope this is not true. Maybe it is just a position that the minister wants to haggle with us. I do not know but, if it is true, it would make a mockery of the system.
The IRB would be very concerned because there would be a flood of applications to extend the deadline and very poor-quality written submissions. Let us remember that, only in exceptional cases will there be oral arguments, so it will all succeed or fall on the written submissions.
If the 15 days is in the regulations, then the minister is not serious about having an appeal on the merits.
Mr. Waldman: I will add briefly to that. I agree with what Mr. Goldberg said. It strikes me that, having done this for a few more years than Mr. Goldberg, the lack of a real appeal has caused us the greatest difficulty over the years. The fact that there will now be an appeal is a huge positive step forward. I agree that the Senate, as a contribution, could urge the government in implementation to ensure that the time periods made pursuant to regulation for the appeal process at least echo those in the Federal Court, where you have 15 days to file the notice and 30 days to file the material, which is still tight but doable. However, 15 days in total is not a reasonable time frame. To give with one hand and take with the other by making unreasonable time frames is not a reasonable way to operate.
It is also important to acknowledge the commitment of the government to adequately resource the new system. As long as I have been doing refugee law, one of our chronic problems is the constant lack of sufficient resources in the system to do our job. The boards and the tribunals are constantly accused of being inefficient when, in fact, the reality is they are not given enough resources to do what they are supposed to do. You have to understand that the decision- making process is often complex and time-consuming. You do not want to rush it if you want to get it right. Given what is at stake, you want to get it right.
The government has made it clear that it will commit the resources. If that does comes to pass, it would be extremely important.
Remember, every time a new system is implemented, one of the main challenges is dealing with the backlog. We will have a huge backlog. The government is saying they will try to whittle away at it over the course of the next year to year-and-a-half until the new system is implemented, but still there will be a backlog. They will have to ensure that there are transitional resources in place. Even if you have a system that works perfectly to deal with the new cases, but it is saddled with 20 or 30 existing cases, it will not be able to function. There have to be sufficient resources initially to deal with the backlog and then to deal with the new system.
The commitment of the government to sufficiently and adequately resource the system would be an important change from what we have seen over the course of the last many, many years, with both governments — a chronic under-resourcing that creates backlogs.
Senator Seidman: I hear both of you saying that what we have now is a whole lot better than what we have had in the past. I thank you very much for that.
Senator Eaton: This is a fascinating discussion because nothing is black and white.
Mr. Waldman, we heard from the minister this morning. He said that $500 million is being poured into the system. In this day of fiscal restraint, there is a lot of goodwill.
My difficulty in listening to both Ms. McWeeny and Ms. Dench is that, from a Canadian taxpayer's point of view and perhaps sounding heartless, I am hearing from you ladies that every person who wants to jump the queue is giving our refugee system a bad name. They are jumping the queue and are not bona fide refugees. They are perhaps economic want- to-be immigrants who do not want to wait in line. Is there perhaps a solution that, because you have worked for many years with refugees, do you ever tell someone that they do not fit the criteria? You are an immigrant not a refugee. Perhaps you should go back to your country and apply as an immigrant. Does that ever happen? Do you ever give your expertise to the other side of the fence?
Ms. Dench: You might be surprised to know how much that is part of the daily bread and butter of many of our member organizations. They are constantly dealing with people, some of whom need protection, others who have been badly advised by someone else to make a refugee claim when they do not have any basis for such a claim. Our organization has been very consistent over many years in raising these issues with the government knowing, as we do, that some people who make claims do not need protection and should not be in the system and that we need to have effective ways of recognizing and dealing with those claims.
Senator Eaton: Do you communicate this?
Ms. Dench: We have raised it many times in meetings with the department. We have made recommendations of our own for dealing with such cases. Taxpayers have these same concerns. We also have concerns for ensuring that the refugee determination works well and has the support of Canadians. We do not want to see it broken down. I do not think we are as far apart as you might think. It is difficult to make a refugee determination —
Senator Eaton: The impression you give when you talk about the bill is that nothing is good about it. This country needs a lot of immigration. It worries me when organizations such as yours come before a committee and say very little good about the bill or what has been arrived at in consensus. It does not help because it promotes a greater backlash amongst Canadians who see this as a really good piece of legislation that has been arrived at in the House of Commons.
Ms. McWeeny: I will respond to that, and perhaps Ms. Dench might add to it.
The system we had prior to Bill C-11 was a good system. It had a lot of problems in it but, as we know, it has been recognized worldwide as an example and model.
I disagree with Senator Plett in that I did not like the bill when it was first tabled. I, Ms. Dench and a number of others at CCR were somewhat involved in the discussions around what amendments could happen, and certainly what could happen within the discussions at the committee level.
We ended up with a fantastic step forward from where we began. I think we all recognize that. There were some very key pieces in the original legislation that we were dismayed and horrified at because they not only did not fix what was already in the system, but they actually took a step back.
That being said, there have absolutely been some steps forward. However, as we take those steps forward, one of our jobs at the Canadian Council for Refugees is to point out where the weaknesses are. That is what we do; we are not set up to praise. We are there to be observant and to speak for and about the weaknesses because we want to have a better system for refugees, as does every Canadian. We do not disagree on that. We want a good system, but it has to be a system where people do not fall through the cracks because of the way the system is set up.
That is where we started with our submission today. We do not want to see a piece of legislation that is, in and of itself, oppressive and exclusionary. We want the complete opposite.
Senator Eaton: Listening to you, you went all through the bill and you basically had very few good things to say about it. I am sorry if I got the wrong impression.
Ms. McWeeny: We had very few good things to say about it at the beginning; that is certainly so. In terms of how we reached the amendments at this point, our point is to still strive for better, and that is why we raise the points we do.
Senator Eaton: We should take a first step and pass this bill and you can work forward from there.
The Chair: I think we canvassed that.
Mr. Waldman: I just wanted to add one thing on that point about economic immigrants. Mr. Goldberg and I are lawyers and we see this in our office all the time. It is a huge problem. Part of the problem, really, is the consultants, both the unlicensed consultants and even the licensed consultants. The problem is that people are encouraged to make fraudulent refugee claims by people who do not give them good advice. Usually, by the time they end up in our offices, they are already well down the process.
There is a huge problem here. To be honest with you, I have complained to the RCMP many times about consultants. They tell us they do not have the resources, they do not have the staff, and they do not have the interest in prosecuting. As long as we have situations where there are unscrupulous consultants who take advantage of people and take large amounts of money and encourage them to engage in fraudulent activities, this will continue to be a problem.
Senator Eaton: That is why Minister Kenney instituted the interview where you could determine what had been written by a lawyer and what the real refugee story was.
Anyway, thank you, Mr. Chair.
Senator Merchant: Thanks to all of you for explaining to us the different aspects of this legislation.
I want to go to the safe country of origin. Can you maybe explain to us a little bit how this will work and what you foresee? You said something about politicizing the refugee system. Can you maybe just elaborate on how this bill now, as it has been reworked as a compromise, will work?
Mr. Goldberg: The Canadian Bar Association believes that the very concept of designating certain countries as being "safe" is problematic. The situation is constantly shifting; what might be safe for some people is not safe for others. The example often used is gays, women who fear domestic violence and children.
It might be that a country has elections, like Mexico does. They have elections every four years, but there are many other extremely serious human rights concerns in that country, from police, human rights activists and journalists being killed; there are thousands of assassinations every year; and a corrupt judiciary and police force. Yet the minister has been saying very publicly over and over again that he foresees Mexico would be on that list.
Therefore, that is of very great concern to us. We think this should continue to be an individualized process where an IRB member looks at the merits of each case individually.
Let me just say this. The beautiful thing about this whole process — and I am sorry if I am jumping ahead — is the way all the political parties worked together. The minister reached out to the opposition. All parties endorsed this legislation. In addition to that process, other things were going on behind the scenes where various stakeholders and organizations were involved with bringing the parties together and advocating on these issues. It is something that could make all Canadians proud.
I want to say that one of the key players in this beautiful process was the Canadian Council for Refugees, which has been really incredibly constructive and which has made a very significant contribution. You will not read about that in the media because it is all behind the scenes. Nobody is out there taking credit, but I think they are the conscience of Canada, and they make me proud.
Senator Jaffer: Hear, hear.
Senator Merchant: By politicizing, do you mean there are other pressures on governments that would come into play when they declare a safe country? Mexico, for instance, is a trading partner. Are there other pressures you are afraid will come into this?
Mr. Goldberg: There are some criteria in the law which, as we say in French, are worth what they are worth. We know from recent experience that, from the Federal Court of Appeal, they will not enforce that if we were to try to appeal to the court. It will probably go nowhere because they consider it a political process.
Ms. Dench: From our perspective, our concern is that, once you get into identifying countries as complying or not with human rights, inevitably there is a risk that it can have some impact on the diplomatic side. For instance, if there is a country that you have put on the safe country list and you decide to take it off, they may take offence at that.
That is something that has to be worried about around the cabinet table, which is really not desirable. Refugee determination is always a little bit difficult because you are talking about human rights abuses occurring in another country, and whether a state is able or willing to protect its citizens.
The only way it can work is if you manage to insulate it from the political realm. You would be trying to say, "This is just about an individual recourse for an individual; it is not about labelling or casting criticism on a country." The refugee determination systems, generally, are able to keep away from that. Certainly, in Canada for many years, we have kept away from that.
Our concern is that you are getting back into those kinds of dangerous political zones.
The Chair: We have run out of time, unless there are any closing remarks.
Mr. Waldman: I agree. I think the problem with the list and why we opposed it originally was because of the risk of it being politicized. We have seen how it was politicized in the case of Mexico. Another example was the South African refugee who was accepted because he was a white fearing persecution and because he was white. That created this huge diplomatic incident between South Africa and Canada.
It is clear that refugee determination, although it is supposed to be an individualized determination by an independent tribunal, becomes a political issue when it reaches the news. The problem with creating a list is that you create a situation where you are politicizing the refugee determination system.
Having said that, it was so important to put the criteria in so that the government can say, as an out, in any occasion, "You are not on the list, but the criteria require that a certain percentage of claimants come from a certain country, and you do not meet that criterion or the other criteria." It lessens the impact.
I do share the concerns. Having said that and from my point of view, at the end of the day, it is something I can live with, given the amendments.
The Chair: We have run out of time, but I thank all five of you for being here and for contributing to this discussion on Bill C-11. You have all provided valuable input.
Colleagues, we will now suspend for one hour. We will come back in one hour. I will bring the officials back from Citizenship and Immigration Canada and the Canada Border Services Agency, I believe. You can ask questions if you had any questions for the officials from this morning when the minister was here, or you can ask any additional questions. I have questions and perhaps you do, too.
Following the officials, we will go into clause-by-clause consideration of the bill, which will take us to seven o'clock.
We will now suspend. I would like to thank our panellists.
(The committee suspended.)
(The committee resumed.)
We shall resume our consideration of Bill C-11, an Act to amend the Immigration and Refugee Protection Act and the Federal Courts Act. I welcome back four officials who are here to help us in that regard. From Citizenship and Immigration Canada, we have Les Linklater, Jennifer Irish, John Butt and Luke Morton.
We heard from the minister this morning when you were here. We have heard from a few other people on Bill C-11, and that raised some questions. Members, if I could get your names down for anyone who wants to ask questions of the officials, I will start it off.
The representative of the United Nations High Commissioner for Refugees, UNHCR, indicated that they were pleased with the bill as amended but indicated that, in testing they have done of people who have gone through the system, 30 per cent do not have proper legal representation or interpretation. Can you comment on that situation? What do you do about those situations? I hope I am characterizing what he said correctly. Maybe some of you were here and heard it, but 30 out of 100 is a large percentage of people.
Jennifer Irish, Director, Asylum Policy Program Development, Citizenship and Immigration Canada: The UNHCR does regular monitoring of Canada's asylum system, which includes monitoring of IRB hearings and also port of entry procedures. The 30 out of 100 that UNHCR was referring to refers mainly to the lack of counsel available at port-of-entry procedures. When a claimant comes to the port of entry, there is an admissibility interview and some initial information is taken on the claim. Under the future system, most of that information on the claim will actually be done at the triage interview, the information-gathering interview at the 15-day mark.
With respect to counsel at IRB hearings, over the past five years — we double-checked with the IRB — approximately 89 per cent to 94 per cent of claimants do have counsel at the RPD or the first-level hearing.
The Chair: Do you think that, under the new procedure, this will be a problem? Do you think the representation or interpretation problem will be improved upon? You say it happens at the initial stage, and that is not relevant to the stage where the interview will take place.
Ms. Irish: Counsel is not normally available at the port-of-entry stage and would not be under the new system either. The advantage of the new system is that claimant information would also not generally be taken at the port of entry; it would be taken at the information-gathering stage by an IRB public servant.
The Chair: Second, Mr. Goldberg from the Canadian Bar Association indicated a concern about the appeal period, that there is 15 days to file notice and provide the brief or whatever is required to justify the case. He felt that was an extremely short period of time. Could you comment on that?
Ms. Irish: Yes, it is envisaged under our new model that there would be a 15-day period under which the appeal would have to be filed and perfected following the first-level decision. That period would be in regulation, so it would be the subject of gazetting and consultation. It is envisaged that it would be a 15-day period following the first-level hearing that would include both an application for appeal and the perfecting of the appeal.
The Chair: Is that not rather unreasonable? Right now, if there is an appeal to the Federal Court, they have 15 days to file the appeal but they have, I understand, up to 30 days to perfect it, as you say, or put the case. This condenses the whole thing to 15 days. Is that not rather unreasonable?
Ms. Irish: We believe that it is a sufficient period of time. When you compare it with international practices, it is actually, if anything, a longer period of time compared to other countries. We do feel that 15 days is a sufficient period of time for this process, but as I mentioned, it will be subject to gazetting. There will be a pre-publication period and a consultation on those time frames when the time comes.
The Chair: In other words, when the regulation is published in the Canada Gazette, people will have an opportunity to comment and indicate at the time if they see that as a problem, and there could be a change made at that point?
Ms. Irish: That is correct, chair.
The Chair: In the humanitarian and compassionate grounds consideration, there is mention of an applicable fee. What are those fees and what is the rationale for that provision, particularly talking about refugees here, not regular street immigrants. We are talking about refugees.
Les Linklater, Assistant Deputy Minister, Strategic and Program Policy, Citizenship and Immigration Canada: In fact, the humanitarian and compassionate category of immigration is meant as an avenue or an opportunity for individuals who do not meet other criteria of the act and regulations to be able to seek and obtain permanent residence. There is a fee for a request for humanitarian and compassionate consideration that is normally charged to all applicants, including those who may have been through the refugee determination system and found not to be refugees but are in Canada and seeking to remain. This also applies to people from overseas, for example, who may be members of an extended family but who are reliant on relatives in Canada for care and support and who wish to join their relatives here but do not meet the definition of the family class. They, too, can ask for a humanitarian and compassionate consideration of their file.
Because this is not a protection stream per se, but is a special opportunity for individuals to seek permanent residence in Canada, a fee is normally charged. We are seeking to clarify that in the proposed package to ensure it is well understood that, in making a request for humanitarian and compassionate consideration, a fee will be levied.
The Chair: What kind of a fee are we talking about?
Mr. Linklater: It is consistent with the application fee for permanent residents, which is $550 for an adult applicant.
The Chair: You are asking that of refugees, people who come here in some cases penniless?
Mr. Linklater: In the context of refugee reform, this agency application would be for individuals who have been found not to be refugees.
The Chair: I thought we were talking about refugees. That is what Bill C-11 is about.
Luke Morton, Senior Legal Counsel, Manager Refugee Legal Team, Legal Services, Citizenship and Immigration Canada: That is part of the confusion. As Mr. Linklater was saying, this codifies current practice. Anyone can apply for the H and C, humanitarian and compassionate, and there are no charges in the refugee system to go to the refugee protection division or to apply for a pre-removal risk assessment. However, outside of the protection system, you have this humanitarian and compassionate application, and currently everyone is charged the $550, and this is simply codifying the current practice into the legislation.
The Chair: What if the person is a refugee?
Mr. Morton: If they were a refugee, they would presumably get protection at the RPD and they would get landing that way. This is a non-refugee stream, the H and C. You have the protection stream, which is the refugee protection division, refugee appeal division, potential PRRA, pre-removal risk assessment, given the time frames on the pre-removal risk assessment. Outside of the protection system, you have the humanitarian and compassionate, which is not a protection or —
The Chair: I hear what you are saying. You are saying that a refugee, a person who ultimately can be found to be a refugee, would not be eligible to go through the humanitarian and compassionate grounds?
Mr. Morton: That was part of the discussion earlier with some of the witnesses. One of the amendments is to carve out of the H and C application the 96 and 97 risk factors. As was explained earlier, it is to clarify that the H and C is not a protection proceeding. You have sufficient proceedings at the IRB — you have the RPD, the RAD and the PRRA. The H and C is not a protection proceeding. It is a humanitarian and compassionate proceeding.
Senator Jaffer: You were in the room when the Canadian Council for Refugees spoke about the hardship from the humanitarian and compassionate point of view. Can you explain from your point of view whether their concerns are legitimate?
Ms. Irish: I can certainly explain the rationale behind the proposal.
Senator Jaffer: "Legitimate" is not the right word. What is the rationale for the government?
Ms. Irish: The rationale for separating risk considerations from the H and C is to make clear that there are two different streams. The refugee system will continue to be dedicated to assessing risk, which, in Canada, is embodied in sections 96 and 97 of the IRPA, Immigration and Refugee Protection Act.
In the future, H and C will not be able to look at these risk factors, so that will remove an important redundancy in our system. Rather than having two arms of the Canadian government looking at the same application under the same criteria, effectively now, if you are a refugee, you will be expected to go through the refugee determination system. If you have humanitarian and compassionate considerations, you can file separately for those. There will be no overlap in terms of assessment of risk.
To ensure that an H and C application can still consider risk-like factors that do not meet the threshold of sections 96 and 97, it was made clear in the amendment that humanitarian and compassionate consideration can consider hardship factors.
I do not mean to try to come up with an exhaustive list, but factors like generalized country situations, systemic discrimination, best interests of the child as well as traditional agency factors can continue to be considered in the humanitarian and compassionate consideration process. Anything that meets that threshold of sections 96 and 97 risk will be the purview of the Immigration and Refugee Board and the refugee status determination system.
Senator Jaffer: That helps. In this H and C, one of the factors presently, if I am not mistaken, is how a person has established themselves; they have a job here, for example. Would that continue under the H and C?
Ms. Irish: Establishment considerations will continue to be a part of humanitarian and compassionate consideration, although we imagine that for an asylum claim coming into the new system, they will be spending less time in Canada. We expect the number of establishment cases to go down as the reforms take hold.
Senator Jaffer: There is just one more thing that I do not quite get. Please help me. I get what you are saying that the refugee determination system is separate and the H and C system is separate. Where does PRRA fit in?
Ms. Irish: Under the amendments put forward in the standing committee, the PRRA function will now be transferred to the Immigration and Refugee Board.
Senator Jaffer: That will be under the IRB, right?
Ms. Irish: That will be under the IRB as well. That is part of that streamlining of the machinery. Those risk decisions will firmly become the purview of the Immigration and Refugee Board.
Senator Jaffer: The risk factors, the same factors that the refugee determination board assesses, that can apply to PRRA, unlike to H and C?
Ms. Irish: That is correct.
Senator Cordy: It has been a long day for you, I am sure. I would like to go back to the question that the chair asked, that I had asked the minister this morning, which is the time frame for appealing. It is not in the legislation. Ms. Irish said it would be in the regulations. We look at what the Federal Court has — 15 days to give notification of the appeal and then 30 days to have all the documentation ready.
When I asked the minister, it seemed like there was a bit of flexibility, but when I hear that a number may actually go into the regulations, that leads me to believe there would be little, if any, flexibility. If it is put in the regulations, it will be gazetted and you said there would be consultation. Who would you consult with? Would it be the people you consulted with to draft the bill?
Mr. Linklater: During pre-publication in the gazette, anyone is welcome to make comments on the draft regulations as presented. We would expect many of the stakeholders with whom we have consulted will offer opinions on any number of aspects of the regulations including the time frame we would propose which, at this point, is likely to be 15 days.
Senator Cordy: That would be 15 days not just notification but 15 days with your written submission?
Mr. Linklater: As I understand it, that is correct.
Senator Cordy: My understanding is that this new appeal board will deal only with written submissions, that the person would not appear before them. Is that correct?
Mr. Linklater: In point of fact, the refugee appeal division will have the opportunity to call for an oral hearing under circumstances where they deem it warranted. We would foresee that a number of the appeals will be dealt with on a paper basis but where there is cause, the member will be free to convoke an oral hearing.
Senator Cordy: If the adjudicators or board members felt there were questions unanswered in the appeal, they would call. However, that would be the exception and not the rule; is that right?
Mr. Linklater: We have dealt with criteria and Mr. Butt can expand on those in some detail.
John Butt, Manager, Program Development, Citizenship and Immigration Canada: There are criteria spelled out in the legislation about when there would be an oral hearing with respect to an appeal. That is where there is evidence that raises questions with respect to the credibility of the appellant where the issue is central to the decision to be rendered by the refugee appeal division, and where the assessment of the credibility of that evidence would be determinative of the appeal. Those are the three criteria spelled out in the legislation.
Senator Cordy: I would want to be assured that you have the right balance between expediency, because you do not want the backlogs we had several years ago of 60,000, with fairness.
What about a refugee claimant who wishes to appeal and does not have legal counsel? Is there any provision made for them, or would they have 15 days? I am using 15 days; we do not have the regulations because we do not have the law yet.
Mr. Butt: The regulations, as you say, are not drafted but certainly most claimants, as Ms. Irish pointed out, have legal representation at the refugee protection division. They do have someone who can assist them once a decision is rendered in terms of filing an appeal. It would be in relatively few cases that a person would be unrepresented before the refugee protection division and, therefore, would not have access to legal advice with respect to the appellate options available to him or her.
Senator Cordy: Do we do anything to help those who do not have legal counsel?
Mr. Butt: Certainly, the major provinces who receive refugee protection claimants today have legal aid plans that fund legal protections before the Immigration and Refugee Board.
Senator Cordy: I know in Nova Scotia it would probably be challenging to get someone to do your report within a short period of time.
Mr. Butt: It is true that the Province of Nova Scotia does not provide immigration and refugee legal aid.
Senator Cordy: Would it be different if you lived in some other provinces?
Mr. Butt: Again, in Ontario, Quebec, Alberta, British Columbia, Manitoba and Newfoundland, the legal aid plans do fund representation before the Immigration and Refugee Board.
Senator Cordy: If you are in those provinces, you are more fortunate. There is no national plan; it is all done by provinces?
Mr. Butt: The provinces make the choice as to whether they will fund those programs. The federal government provides financial assistance to the provinces for those programs.
Senator Cordy: It provides funds to provinces that provide legal aid for those who need it?
Mr. Butt: Yes.
The Chair: I asked the minister this morning about the personal information form. I want to clarify this. Some people have indicated a concern about getting rid of that and going to an interview because they are concerned that the person who conducts the interview might not quite interpret the way they mean to present their case. The personal information form gives them an opportunity to put it in their words, consult a lawyer and get it right in their opinion. The interview will now take that over.
Is there no room for a written document still? I am trying to keep within the same time frames. I understand that. I thought the purpose behind the personal interview was to cut down on the time it took. If someone wants to do a printed one, wants to consult a lawyer, cannot quite express it, for language and other reasons, is there a possibility of that or does it have to be the interview?
Ms. Irish: During the interview, the interview officer will be engaged with the claimant to bring out the story behind their claim. They will use as a basis, we understand from the board, a form that will structure the responses. It will not be the generation of a personal information form or that cumbersome a process, but there will be a process for structuring the claim into a digestible report that would then be transmitted to the first-level hearing.
After the interview takes place, the claimant would get a recording of the actual interview but, in addition, a report on the claim will be transmitted to the first-level hearing. That report will be available to the claimant.
The claimant, in fact, can add to that report any time up to the period of disclosure, which is currently 20 days in advance of the hearing. Up to that point, the claimant can add any information or change any information in consultation with counsel up to the point of the interview. All of this will be the subject of procedures that will be developed by the Immigration and Refugee Board.
The Chair: I see. A person will do the interview and the interviewer will fill out a form. The claimant will be able to see that form and determine if something does not quite represent what they were saying, or they can consult with their lawyer and the lawyer might indicate that. There could then be adjustments made before it is submitted for the first level. Is that right?
Ms. Irish: That is correct. I believe, in accordance with the testimony of the executive director in the House of Commons, they indicated that someone could add to their report. They could not necessarily substitute, but they could add to that report and clarify the reason for the additions right up to the period of the hearing.
The Chair: That is good. Thank you for that.
Senator Jaffer: Adding to the chair's questions, I have done refugee work for a long time. I have yet to meet a genuine refugee who at the first meeting will tell you what has happened to them. You all know this. I am not telling you anything new. There is an issue of trust of authorities because they come from a country where they do not trust authorities. There is an issue of trust just generally, in addition to being confused.
I felt satisfaction when the minister talked about the vulnerable people, if I am not mistaken, getting more time. I believe that, for the genuine refugee, there will be a lot of vulnerable people. I have great concern because in all my years, the minimum time it took for me to take a refugee through the process was 16 hours on a straightforward case. I believe you will all be doing your job diligently, but you will find that during the first process, there may be a backlog. I hope I am wrong, but I share that from my experience of being a refugee lawyer for over 20 years.
You must have given a lot of thought as to how you came up with this process.
Mr. Linklater: It is important to note that there are not prescribed, or there will not be prescribed, time periods around the conducting of the first-level information-gathering interview. It will take as much time as it takes.
Where there are cases of obvious trauma or distress, the employee of the board will have the opportunity to adjourn the proceedings to allow the person to collect himself or herself or to reschedule at a time that will be more conducive to the sharing of the information.
I take your point wholeheartedly. I think it is a strong rationale through this new process that an entire new appeal division is being proposed to ensure those individuals who do have legitimate claims, and may not receive the appropriate decision at the first level, do have an opportunity to bring forward information that may not have been available at the first hearing, or to add to what had been discussed at the first hearing.
Senator Jaffer: Further to that, besides gaining the trust of the person is obtaining the documentation. You know that most people do not leave their countries with documentation. Just to collect all of it takes up to six months. If they have come from a conflict zone — you know the issues, so I will not get into them.
I will give you a quick example. I had a Burmese client who said if one were abducted and taken to Thailand, forced to do things against their will and contracted AIDS as a result, upon returning back to their village, they would be killed if it was discovered they had AIDS. No one would believe a story like that, right? I had to collect all kinds of documentation because I even found it hard to believe. I am talking about years ago; now it is different. That document gathering takes months. This particular one took me two years to complete.
For me, the challenge is how to get the documents and how to prove whether what the person is saying is true. I think your intentions are good. I agree with you that we need to hasten the process. I am just very concerned in that I do not want us to fall on our faces before we even start. I share with you my angst.
Mr. Linklater: With the new system, the fact that the expertise that has already been inculcated and developed at the IRB with the members as they are now, having that expertise — the documentation centre, the understanding of the broader country trends and the constant gathering of information — available to the officers who will be doing the first-level information gathering, to the public servants who will be making the first-level decisions, as well as to the appeal division members will be helpful in terms of ensuring the decision making is as robust and current with trends as it can possibly be.
Senator Jaffer: My last question is on humanitarian and compassionate. The UNHCR article was speaking about sur place. Would that come under hardship? Say they are out of the refugee process and something happens in their country — they used Uzbekistan as an example. Because of hardship and issues, they would come under the category of hardship in H and C. Is that correct? Do you agree with that?
Mr. Morton: I will make a general comment about sur place, and then Ms. Irish or Mr. Butt can follow up.
The basic notion of sur place, as you well know, is that something has happened to make you a refugee since you left your country of origin. When you were in your country of origin, you were not a refugee; you left your country of origin and something has happened. There are different events that can happen. Sometimes it is something such as a coup d'état at Tiananmen Square; there are a whole range of different country conditions. There is a smaller category, in which a person might be protesting in front of an embassy and has created a refugee sur place by that person's action.
The most common situation we see of refugee sur place is there is a change in the country conditions in their country of origin. That is a background. Ms. Irish could add to that.
Ms. Irish: We gave this considerable thought. There is a unique provision in the bill that has not gotten a lot of attention. Proposed subclause 4(2.1) of the bill allows an exception to pre-removal risk assessment if there has been a change in country circumstances. This was meant to address the exceptional considerations of people who have gone through the first level hearing and an appeal, but while they are in the removals inventory, they are refugee sur place fundamentally by a change in country conditions. Under the provisions of the bill, they would be barred from the pre- removal risk assessment.
This provides the opportunity for that particular cadre of people who are barred from pre-removal risk assessment and where there has been a change in country circumstances, there is a procedure whereby the minister can provide an exemption to the bar on PRRA. That exemption will be exercised by the Department of Citizenship and Immigration Canada, who will make a recommendation to the minister when we hear about a change in circumstances, for example, as was the case in Uzbekistan most recently. Then we could exempt that class of nationals from the bar on PRRA to permit them to have a pre-removal risk assessment. It will not mean that we could actually make a decision that they would be able to stay in Canada indefinitely, but that they would be entitled to an assessment of the risk under that provision.
Senator Jaffer: Then what will happen to them?
Ms. Irish: Then they get a pre-removal risk assessment, which will also be done by the board, because the pre- removal risk assessment function will be transferred over. If that risk assessment is found to be in favour of the claimant, then the claimant will get protected person status as if they had gone through the asylum system.
The Chair: Are there any other questions of the officials? There being no other questions of the officials, I will say thank you very much to you and excuse you. I appreciate your spending a lot of time waiting for this call back, but it has been helpful to our deliberations.
Colleagues, we are now at the point of proceeding to clause by clause, if you are ready to do that.
Hon. Senators: Agreed.
The Chair: Okay. There are 42 clauses here, and I have not been able to come up with a logical grouping of them to save going through 42 different calls here, but I will go through them rapidly. Please yell out the number if there is any number that you want to say anything about or move an amendment to.
Are we ready? Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1 stand postponed?
Hon. Senators: Agreed.
The Chair: Clause 2 carry?
Hon. Senators: Agreed.
The Chair: Clause 3?
Hon. Senators: Agreed.
The Chair: Clause 4?
Hon. Senators: Agreed.
The Chair: Clause 5?
Hon. Senators: Agreed.
The Chair: Clause 6?
Hon. Senators: Agreed.
The Chair: I will save your voice: I will consider it carried unless I hear somebody say "stop." Otherwise you will do this 42 times.
Clauses 6, 7, 8, 9, 10, 11 —
Senator Jaffer: May I suggest that we say if there is anything that anyone does not agree to, to save your voice too, and we agree to all of them?
Jessica Richardson, Clerk of the Committee: We have to do them unless you group them.
The Chair: Apparently I have no choice. There is this procedure here.
Senator Jaffer: Sorry.
The Chair: Clauses 11, 11.1, 12, 13, 14, 14.1, 15, 16, 16.1, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 27.1, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 37.1, 38, 39, 40, 41, 42.
Shall clause 1 carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill carry?
Hon. Senators: Agreed.
The Chair: Does the committee wish to consider appending observations to the report?
Senator Jaffer: I would appreciate if the committee would consider two very short observations, if I may read them to you.
The two observations are what Mr. Waldman had suggested, and I would ask the committee to consider an observation to have a one-year review after the implementation of the act to see how the bill is operating and if there are any concerns about the implementation.
My second observation, if the committee agrees, is to recommend that any appointments to the refugee protection board must be of senior positions, at least — as he put it — PM-6 or higher, and they must go through a public and open process. It is basically to have senior, experienced people from the IRB as members of the refugee board, and that the Senate committee or both houses look at the review after the implementation of the bill, which I imagine will be two, two-and-a-half to three years from now. Those are my observations.
The Chair: I think what he was saying was a review after one year of implementation, not a one-year review.
Senator Jaffer: After which would be about two to three years.
The Chair: You are suggesting a review by both houses?
Senator Jaffer: That is my suggestion, the Senate or both houses.
The Chair: Colleagues, just a procedural thing before you either put other things or want to agree or disagree with those. The wording can be reworked a little bit by the steering committee before the presentation of the report with the observations, if it is your wish to have them.
That would mean that Senator Ogilvie, Senator Martin and myself, before we present this to the Senate tomorrow, in addition to adopting the report, would file a page of observations along the lines that Senator Jaffer has mentioned, but we will tidy up the wording. That is the normal way these things are done. I will just put that before you, if you wish to go with that.
Senator Eaton: Do we vote on the amendments? The observations?
The Chair: They are not amendments. They are observations. Yes, we have to decide whether you agree with the observations or not.
Senator Seidman: Since the government officials are still in the room, I wonder if it is possible to consult them to see if they have some advice or clarification that they might give us on both of these observations. Can we perhaps ask someone to come back to the table to clarify and give us some advice?
The Chair: Do you have anything? One of them is a review after one year of putting it in place, which the minister said would be 12 to 18 months. The other is that we have a high calibre of people considered for the refugee appeal division. Do you have any comment about that?
Ms. Irish: Certainly. First of all, with respect to the review, there is an evaluation that is already foreseen for the three-year mark. This is an internal evaluation of the functioning of the system. The purpose of that is to ensure that the assumptions that went into the planning for the new system of valid assumptions, that the system is functioning well, there are no pressures forming where there had been different pilot projects launched under the new system, that those are functioning well and can continue.
That is already envisaged for the three-year mark. It was envisaged as an internal evaluation.
The Chair: That is an internal departmental review?
Ms. Irish: The results of that evaluation will go to the minister, and then the minister is to report the results to cabinet with any recommendations.
The Chair: Senator Jaffer is recommending a parliamentary review. In order to coincide with that, if there is to be an observation of a parliamentary review, it should probably come at the time or after you do your internal audit. That is after three years, you say?
Mr. Linklater: We are looking at the three-year mark for the broad evaluation across the new system.
The Chair: Three years from now?
Mr. Linklater: From the implementation of the new system. Three years from that date, which we think will probably be — as the minister said this morning — Royal Assent.
The Chair: Then there is the situation with respect to the calibre of people that go into it. Again, Mr. Waldman's point earlier.
Mr. Linklater: The IRB has made very firm commitments to observing the requirements of the public service management act and the Public Service Employment Act in terms of the staffing procedures for new decision makers at the IRB to ensure maximum flexibility for deputy heads, including the chair. Those authorities are delegated and allow them to use a number of tools to be able to ensure that fairness and competence are part of the hiring process.
The Chair: What about this PM-6 level that Mr. Waldman suggested?
Mr. Linklater: Again, the board is looking at the various permutations and combinations for the staffing of those positions. There is a cost issue associated with this, and certainly our costings have been developed on certain assumptions, which I believe are generally in the PM-5 toPM-6 range for members of the board.
The Chair: Anything else you want to clarify with the officials?
Senator Cordy: The three years technically would be 2015, because the minister said it would likely take two years before everything is implemented?
The Chair: Twelve to eighteen months, he said.
Mr. Linklater: It would likely be 2014. We are looking at an implementation schedule of 12 to 18 months following Royal Assent, so three years following that.
The Chair: If there is nothing more for the officials, I will excuse you again. Thank you.
Senator Plett: In my opinion, Senator Jaffer is suggesting that we are giving direction, not making an observation. I think there is a difference. I think we are writing directives by accepting those particular observations, and that I have a problem with. We are passing the bill unamended. I struggle with observations, period; however, certainly, I personally cannot support these observations because I think we are directing someone to do something, and that is not our position.
Maybe it can be reworded, Senator Jaffer. However, I am not sure that I am happy with allowing the steering committee to reword it in their way. Maybe it can be reworded in a way that I would be a little happier with it. At this point, I think we are directing Parliament to do something, and I do not think that is the right thing to do in an observation.
Senator Ogilvie: I was going to ask Senator Jaffer if the response with regard to the review met her general objective as an overall purpose. My thinking was along the line of Senator Plett — that the observation would be that we strongly support the concept of the full review as presented to us and on the time frame.
Senator Plett: That I could support.
The Chair: Is it not also a question of whether we want a parliamentary review? I think what Senator Jaffer has said is that we can coincide with this review, the internal departmental, but then do we want a parliamentary review?
Senator Ogilvie: It comes down to how you word it so that it becomes an observation, which is really the issue, and then if you felt that the review is appropriate as described — I do not want to put words in the senator's mouth — the observation might be, "and we would observe that it would be helpful if the results were made available to the two houses of Parliament" or some such wording. I am not trying to create this; it is your suggestion. However, I think the critical issue for a number of us will be that it is an observation as opposed to an instruction.
Senator Jaffer: In the haste of things, I am not looking at direction and I want everyone here to be comfortable. I am glad this has happened. Obviously, I expected them to be diligent. Why would I have expected anything else? They already have it in place. Because things happen and things get out of hand, as we have seen with the backlog, if all of my colleagues agree, I think there should be not direction but observations, and we should look at the parliamentary review suggestion.
The Chair: We note that there is a plan for a review by the department and ask that the minister submit that to the two houses of Parliament. Then the two houses of Parliament can do as they wish with them, and it would probably undertake a review. That is the normal thing that happens around here. Does that sound okay?
Senator Plett: I am not sure I understood that, chair.
Senator Ogilvie: The critical thing will be in the language of writing. Again, as I think the chair has indicated, it is difficult to write these things in committee. The critical thing will be to get a general sense of the observation and then, as per the chair's suggestion, that it be drafted in some form. We are meeting as a committee tomorrow morning. Perhaps it would be possible to have draft observations made available to the committee as a whole tomorrow morning and this could be further considered at that point.
Senator Plett: Sure.
The Chair: Yes, that is a good way of doing it.
Senator Eaton: I want to make sure I understood Senator Eggleton. An evaluation would take place the way the department has planned, every three years.
The Chair: It said "in three years." It did not say "every three years."
Senator Eaton: In three years, at the three-year mark, but we would ask the minister to make that evaluation accessible to whatever committee, either in the Senate or in the house, or both, and it would be up to the committee to evaluate whether they had to go further.
The Chair: Yes.
Senator Seidman: I concur with Senator Ogilvie, and I appreciate what you are saying, Senator Jaffer. I appreciated the clarification that there is already a built-in evaluation process at the three-year mark, so the one-year does not make a whole lot of sense. Indeed, if we could have something worded along those lines as we have now discussed, I would be in support of that.
The Chair: Okay.
Senator Cordy: This is three years after implementation, not after Royal Assent.
The Chair: Right. They are estimating that the three-year mark would be 2014. Does that cover your point, Senator Eaton?
Senator Eaton: Yes.
The Chair: Senator Martin?
Senator Martin: Yes. I just wanted to express support, so to speak, in the second point that Senator Jaffer made, but I am mindful of the importance of the wording. I did hear all of the witnesses today, including the officials, speak about how important it will be to have decision makers who are well trained and culturally sensitive and who have experience, because of the claimants and their vulnerability when they are being interviewed. I think those concerns were shared by everyone, and by all of us.
We also heard that we already have good training that takes place. According to the High Commission representatives, they are pleased with the high standards, so just to maintain that, and I think that comment was borne out.
The Chair: We can have both of these here tomorrow morning. In that way, instead of just the steering committee, it will be the whole committee that will see these things in writing in front of them tomorrow morning. You can decide then what you want to do with them.
Senator Seidman: I did want to speak to the second one, which I feel is more directive. I do have trouble with it from that point of view, that in a way we are interfering with a management system that will be put in place. We had it very well described here. I just have trouble with that kind of a directive, which is not an observation.
The Chair: It can be worded in such a way that, "We believe there should be the highest and best people in these positions." That is not a directive.
Senator Seidman: Okay.
The Chair: We can put it in that wording.
Senator Seidman: We will not put in levels, PM-6?
The Chair: No.
Senator Cordy: I was going to say, too, "that the committee was pleased to hear the government officials state that . . ." That is definitely an observation.
The Chair: There are different ways you can word this. What you are doing, though, is putting some emphasis on these things because they are of concern in the implementation of it.
Senator Ogilvie: Following up on Senator Seidman and Senator Cordy, and with regard to your first intervention on this, Senator Jaffer, if we were to try to develop language around what has just been said, something to the effect that, "The committee was pleased to hear from all officials that the quality of personnel will be critical to the success of the program, and we urge every effort to secure appropriately qualified personnel," something along that line?
Senator Jaffer: Absolutely. That sounds good. Thank you.
The Chair: Sounds good.
Senator Ogilvie: I think we can make progress on that.
The Chair: I think that gets the point across, without it being a directive.
We will get some wording up for tomorrow morning on that. Is there anything else on this?
Subject to those observations, then, I can ask you the final question tomorrow about the report being submitted to the Senate.
That is it for tonight. Tomorrow morning at 8:30 a.m., we will have Minister Finley with us to talk about Bill C-13, relevant to the military personnel and the amendment to the Employment Insurance Act. That should not take more than an hour. When we are through that, we will go back to this and finish up on the two little points of this, the observations and the report of the bill into the Senate tomorrow.
Senator Champagne: Is that all we have to do tomorrow?
The Chair: That is it.
Senator Champagne: Must we start this early, then?
The Chair: That is when Minister Finley can be here.
Senator Eaton: Do we not have another bill, Bill C-40, now?
The Chair: Bill C-40 is still on the floor of the Senate. It has not yet been referred here. It is being held for debate.
Tomorrow could be our last meeting, and should be our last meeting. There is no meeting in the afternoon. When we finish this tomorrow morning, that should be it, unless sometime next week you want to come back to deal with Bill C-40.
I do not know what the leadership on both sides of the house will say, but Bill C-40 is on the establishment of a national seniors day. What is being proposed is October 1. If it ends up getting held over to September, it would still be in time. It is a short bill. I do not see it taking very much time. That is something we will have to wait for the leadership of the two parties to determine whether or not it needs to be dealt with by committee before we rise for the summer, but it will not be this week; that is for sure.
We are in this room at 8:30 a.m. tomorrow morning. Thank you.
(The committee adjourned.)