THE STANDING SENATE COMMITTEE ON SOCIAL AFFAIRS, SCIENCE AND TECHNOLOGY
EVIDENCE
OTTAWA, Monday, February 9, 2026
The Standing Senate Committee on Social Affairs, Science and Technology met with videoconference this day at 1:59 p.m. [ET] to consider the subject matter of Parts 5, 6, 7 and 8 of the Bill C-12, An Act respecting certain measures relating to the security of Canada’s borders and the integrity of the Canadian immigration system and respecting other related security measures; and, in camera, for the consideration of a draft report; and, in camera, for the consideration of a draft agenda (future business).
Senator Rosemary Moodie (Chair) in the chair.
[English]
The Chair: My name is Rosemary Moodie, I’m a senator from Ontario and the chair of this committee.
Before we begin, I would like to do a round table and have all senators introduce themselves.
Senator Burey: Sharon Burey, senator for Ontario.
Senator McPhedran: Marilou McPhedran, independent senator from Manitoba.
Senator Senior: Paulette Senior, senator from Ontario.
[Translation]
Senator Boudreau: Good morning. I am Victor Boudreau from New Brunswick.
Senator Arnold: Good morning. I am Dawn Arnold, also from New Brunswick.
[English]
Senator Mohamed: Hello. Farah Mohamed from Ontario.
[Translation]
Senator Petitclerc: Good morning. I am Chantal Petitclerc from Quebec.
[English]
Senator Hay: Katherine Hay, Ontario.
Senator Osler: Flordeliz (Gigi) Osler, Manitoba.
Senator Muggli: Tracy Muggli, Treaty 6 territory, Saskatchewan.
The Chair: Senators. Today we are studying the subject matter of Parts 5, 6, 7 and 8 of Bill C-12, An Act respecting certain measures relating to the security of Canada’s borders and the integrity of the Canadian immigration system and respecting other related security measures.
As our study examines the subject matter of these elements, the report of this committee will be made to the Standing Senate Committee on National Security, Defence and Veterans Affairs, or SECD. The final report on Bill C-12 will be made by the Standing Senate Committee on National Security, Defence and Veterans Affairs to the Senate of Canada.
At this point, I would like to say a few remarks. Senators, I’d like to thank you for making the change from starting earlier at twelve o’clock today to accommodate our meeting with the minister and officials.
I’d like to first reflect on the very tight timelines provided to us by the motion referring Parts 5, 6, 7 and 8 to our committee. We have set aside more than 10 hours of study for this bill. This committee is scheduled to study this bill from Monday through to Wednesday, which is an exceptionally compressed time frame for legislation of this scope and complexity.
Bill C-12 proposes significant changes to Canada’s immigration and asylum framework, including expanded ministerial powers, new eligibility rules for refugee claims and changes to administrative and enforcement authority.
Given the importance and potential consequences of this legislation, this committee has an obligation to conduct a thorough and balanced review. We are the chamber of sober second thought, and we play a critical role in the democratic process.
It is regrettable that the Minister of Immigration, Refugees and Citizenship was unable to appear before us earlier today.
Ministerial testimony is an important element of parliamentary accountability and assists senators in understanding the policy rationale and safeguards underlying government legislation. We understand that there are still efforts being made to have the minister appear before this committee.
As the committee continues to expect meaningful engagement from the government at all levels, we, as members of the Standing Senate Committee on Social Affairs, Science and Technology Committee, or SOCI, believe and are keen on working with the Government of Canada to ensure that all government bills are studied in a rigorous and efficient manner.
Our schedule over the coming days will include hearing from a broad range of stakeholders — refugee advocates, legal experts, civil society organizations, provincial and municipal partners and individuals with lived experience of the asylum system.
As senators, we have a constitutional responsibility to provide sober second thought. We must also ensure that the integrity of this committee’s process is protected. I know that our committee will use this time efficiently to ask focused and analytic questions and to engage constructively with our witnesses. With that, I’ll turn to our first panel.
Joining us today for the first panel, we welcome from the Immigration and Refugee Board of Canada, or IRB, Manon Brassard, Chairperson; Roula Eatrides, Deputy Chairperson, Refugee Protection Division; and Roger Ermuth, Executive Director and Chief Financial Officer. Thank you for joining us today.
For your opening statement, you will have five minutes, followed by questions from committee members, Ms. Brassard, the floor is yours.
[Translation]
Manon Brassard, Chairperson, Immigration and Refugee Board of Canada: Thank you, Madam Chair, for the opportunity to speak to you about the Immigration and Refugee Board of Canada.
[English]
As you know, the Immigration and Refugee Board is a quasi‑judicial tribunal. It was established in 1989.
We report to Parliament through the Minister of Immigration, Refugees and Citizenship. Our mandate is to resolve immigration and refugee matters efficiently, fairly and in accordance with the law. As an administrative tribunal, we must use our expertise to hear and decide a high volume of cases. The IRB issued 102,000 decisions last year. That’s a record for the IRB. Of those, over 78,000 were decisions from the Refugee Protection Division.
Year over year, it is a 42% productivity increase. And it was also beyond our funded capacity at the time of 60,000 cases.
[Translation]
To resolve that many cases, we have harmonized, streamlined and standardized our processes across the country. We now manage our inventory of cases on a national level, we’re making better use of technology, we have automated our processes where possible, and we are managing the inventory in a way that maximizes the time dedicated to hearings.
[English]
The high volume is nothing if our hearings are not conducted in a way that upholds natural justice and procedural fairness. Our reasons for the decision must meet the tests of the Supreme Court decision of Vavilov. They must offer sufficient justification, be transparent, and be easily understandable for the reviewing court, but most importantly for the claimants themselves.
As is to be expected, we hear cases daily that involve Charter‑protected rights — life, liberty, security — and it can’t be reduced to a checklist exercise.
[Translation]
How do we know the decisions meet the test? We look at how often our decisions are overturned. Last year, about 4% of the decisions of the Refugee Protection Division and 1% of the decisions of the Refugee Appeal Division were overturned by the Federal Court.
[English]
I would like to turn your attention to our challenges. You all know about inventory at the Refugee Protection Division, or RPD. It stands now at just below 300,000. How did we arrive there — three years of historically high levels of intake: 156,000 in 2022-23; 176,000 last year; and, in this current year, by the time the fiscal year ends, we estimate it will be between 95,000 and 105,000.
Last year, we were funded for 60,000; we finalized 78,000. With Budget 2025, we are ramping up to 90,000 next fiscal year. To contrast it with the previous 10 years, intake was, on average, 29,000 per year, and the Board finalized about 26,000 cases per year.
[Translation]
Since the pending asylum claims are relatively new — 86% of them were referred less than two years ago — an asylum claim decided today will have been in the queue for approximately 24 months, including the seven months required for the Canada Border Services Agency to complete a security screening. Obviously, for security and integrity reasons, we don’t process cases until the preliminary security screening is complete.
[English]
A case being sent to us today, given our current capacity, will wait around 44 months before a decision is issued. The IRB‑funded capacity is 70,000 claims for this fiscal year.
The IRB has invested to increase its productivity. Some of our projects have already delivered results, and others are about to become reality. We have seen real, concrete progress, and that’s why I’m confident that the IRB can continue to successfully meet the challenges ahead and play its part in a much larger in‑Canada asylum system.
With this, Madam Chair, I turn the floor back to you and look forward to our exchange today.
The Chair: Thank you, Ms. Brassard. We will now proceed to questions from committee members. For this panel, senators, we will have four minutes for your questions, and that includes the answer.
Senator Burey: Welcome. Thank you so much for being here, and thank you so much for your hard work and for that little summary of the work that you do.
If passed, Part 6 of Bill C-12 is talking about the in-Canada asylum system. The strengthening Canada’s immigration system and borders act would introduce a new section 100.1 to the Immigration and Refugee Protection Act, which requires that the minister be provided with and given the opportunity to consider the documents and information relevant to all refugee claims before they are referred to the IRB. I have a few questions.
To your knowledge, how does the current referral system work? How does IRCC’s input currently affect referral, scheduling and refugee protection decisions?
I’m going to ask a few questions because my time will run out.
To your knowledge, how will this new requirement modify the in-Canada asylum claim system? I think that is the most important question.
The next question is: Are you aware of a GBA Plus analysis that was done on this bill?
There were three questions, and the ones I want to know: To your knowledge, how will this new requirement modify the in‑Canada asylum claim system, about GBA Plus, and how would it affect refugee claimants?
Ms. Brassard: I’ll start with the third and last question on the GBA Plus analysis. I’m not fully aware of how the department came to it. I would hesitate to provide any answer on that.
On the current referral process and the new referral process, right now — as I mentioned earlier — we have about 300,000 cases pending; about a third of those are pending, and we can’t do anything with them because we do not have a front‑end security screen, and we don’t want to proceed without that element.
In this new system, the department would refer cases they deem complete, and, with that — subject to what we see in the regulations — we expect the front-end security screening, for instance, would be part of the file.
It would be the decision of the department, the minister, to appear before us and intervene in a case so that when we get the case, it would be complete and we would have a whole lot less effort as an organization to go back-and-forth with the department. Will you confirm that you are going to intervene? Yes or no. The file should be a lot more complete. For us, it would reduce the back-and-forth that we have at the registry level. In a way, it explains how the referrals are made now.
The Canada Border Services Agency, or CBSA, when they come at the point of entry, they receive the file. They do what they call “one touch.” Once they have the basics of the file, they refer it to us, and we wait for six to seven months, on average, for them to give us the front-end security screening. What this would change is where the file would wait and the file would no longer be with us. This would give us complete files.
Senator Burey: Thank you.
Senator Hay: Thank you for being here.
I have a question with regard to information sharing and data.
This new Bill C-12, the addition around information sharing, creates expansive new information sharing authorities, raising, I would say, concerns about privacy, data sovereignty and risks of downstream disclosure to foreign governments.
My question for you — and perhaps expand on that — but how would these changes improve the current system and work you do?
With these changes, how would you address the additional risk of exposure to potential cyberattacks and increased risk to claimants if their personal data were misused in any way, shape or form? Could you expand on that for me?
Ms. Brassard: I can only talk about what we do and not about the sharing of information that CBSA could be doing with their partner, or what IRCC could be doing with their partner. If you have a chance, maybe this is something they would be better to comment on that than I am.
At the IRB, we take great care protecting the information of the claimants in front of us, whether they be at the Refugee Protection Division, or RPD or the Refugee Appeal Division, or RAD.
We make sure that we don’t disclose. We sanitize reasons when we publish them so their names and other identifiers are always eliminated. Our hearings are in camera or in private; therefore, the risk of leakage is very remote. To that aspect, Bill C-12 has very little impact, if any, on us in those aspects of our work.
Senator Hay: Thank you.
Senator McPhedran: I want to begin by recognizing the independence and expertise of members of the IRB, and thank you for that service.
This is something that Canada has had a very positive international reputation around the work and the construction of the IRB.
My question goes to what appears from this bill to be, in my opinion, a conflation of function and that is pre-removal risk assessment officers have a responsibility for the removal. But this bill also has them taking on the function of making determinations on the legitimacy of refugee claims. May I ask whether you share that concern?
Ms. Brassard: Thank you for recognizing the work that we do. I’ll share that with colleagues at the IRB.
Right now, a pre-removal risk assessment officer’s job is to determine a flight risk — it is a pre-removal risk assessment. Usually, when it comes to a case that has gone through the board, the Refugee Protection Division has said no. The Refugee Appeal Division has found that the person was not a refugee claimant. If they went to the Federal Court, the Federal Court concluded that the Refugee Appeal Division’s decision was not judicially reviewable.
The pre-removal risk assessment, or PRRA, officer is at the end of the cycle, if you want. They are there to determine if there is new evidence that would justify that the person stays in Canada because of a serious risk if they are removed to their country. That’s the role that they play now vis-à-vis a potential removal. It’s probably 50% or a bit more of their current workload.
In the new system, certain cases will no longer be referred to the IRB. So the PRRA officer will have to make the full determination, not having the benefit of the RPD, the RAD and, potentially, the Federal Court.
It is not clear to me at the moment whether the regs will change how they approach the role they play, which is, right now, a paper process as far as I understand.
Sometimes a hearing has to take place if the determinative issue is a credibility issue. How will that translate into this new Bill C-12 environment, where a fairly significant portion of their work will be a refugee claimant without having had the benefit of our decisions?
That’s all I can explain in terms of the process and, from now, the changes I see, subject to greater clarity when the regulations are actually published.
Senator McPhedran: I acknowledged at the beginning of my question the expertise of members of the IRB.
Is it correct that, under this bill, decision making will shift to public servants who do not necessarily have the level of expertise of members of the IRB?
Ms. Brassard: Members of the IRB from the Refugee Protection Division are public servants.
Senator McPhedran: Let me reframe my question.
Members of the IRB will not be making decisions under this proposed new law that people who are also civil servants but do not necessarily have the expertise that you as members of the IRB have?
Ms. Brassard: I can talk about the expertise that we develop, how seriously we take it and the high standards we impose on our new recruits. The PM-5 level, so in the hierarchy, that’s a bit lower. I would not say that they are not competent. I’m sure they have the training, but I am not aware of the nature of that training.
Senator Muggli: Thank you for being with us today. My team and I have done a little research on this, and you may be able to clarify. It looks like the Immigration and Refugee Board of Canada, or IRB, was established in response to the 1985 Supreme Court Singh decision that ruled that refugee claimants in Canada are entitled to an oral, in-person hearing.
Am I right that the Singh decision was the catalyst for the formal tribunal structure? If so, what has changed since that ruling that would make a move away from oral, in-person hearings congruent with the Charter rights of claimants?
Ms. Brassard: In 1989, when the board was started, the Singh decision was a catalyst, and it said if we had credibility issues, we needed an oral hearing. The legislation expanded on that and required oral hearings across the board, not just for credibility issues. That is how, in 1989, the board started. I was there at the time. That’s why I sort of remember.
We have in-person hearings unless we are going to say yes, because we are otherwise satisfied that everything meets the definition of a “person in need of protection.” In that case, the legislation allows us to have paper hearings.
The RAD is a paper process that follows a thorough oral hearing. The RAD can do oral hearings, but it is rare, and the RAD will see if the Refugee Protection Division’s decision is correct and will consider new evidence. Right now, like I mentioned earlier, if there is a credibility issue, the legislation requires an oral hearing at the pre-removal risk assessment, or PRRA.
Senator Muggli: Are you concerned that not doing oral hearings as a matter of routine may jeopardize Charter rights?
Ms. Brassard: I will leave that to the legal experts. Certainly, right now, we give a full oral hearing and issue extensive reasons for the decision. The RAD does the same and issues extensive decisions. The file that goes to the PRRA officer now has a lot of information in front of them. That probably explains why, in part, the PRRA is mostly a paper process.
Now, it will change, and potentially a fairly significant portion of cases will be put in front of them without them having the benefit of that information. Whether that creates a Charter challenge will likely be argued in court, and we’ll find out.
Senator Dean: Thank you for joining us today. It is my understanding that there are currently situations in which files are not sent to the board and they are sent directly to review officers. This is a process that hadn’t been dreamed up; it rests on one that already exists. Could you describe to us the circumstances in which you do not see appeals and where they go directly to PRRA already?
Ms. Brassard: I’m going to go with memory. If a person has already received a negative decision from the board, or if the person has been found to be a refugee in a third country and can go there, those are instances where they will not go to the board. There are probably some criminality exceptions as well where people are not eligible.
It is a four- or five-item list, but it does not necessarily mean that there are a lot of people. In the two first examples that I mentioned, their claims have already been examined.
Senator Dean: I have a second question. I recall reading somewhere that the pre-removal risk assessment process has been found to meet the expectations of the law, so it likely has been challenged at some point and found to meet certain standards. Could you expand on that for us?
Ms. Brassard: I believe there are Federal Court cases that mention that. Those cases are based on a set of circumstances and are fact-based, and whether the fact situation will change given that this is a significant shift will be decided by the courts.
Senator Dean: I think it is the case that a sizeable number of those meet the test of the PRRA, don’t they?
Ms. Brassard: I’m not sure I understand your question.
Senator Dean: For pre-existing cases that go directly to an officer, it is not as if zero are successful because they didn’t go through the IRB. I understand that the approval rate of decisions under this process where they haven’t been to the IRB is not zero.
Ms. Brassard: I think the last number I saw was 12%, and those that came through the IRB, not the Federal Court, their acceptance rate was about 3% the last time I saw the numbers.
Senator Dean: Thank you.
Senator Senior: Thank you for being here. I noticed, in your opening remarks, you mentioned there was an increase, probably in the early 2020s, in 2022 and 2023, in terms of cases. I also noted the 300,000 number that you mentioned. You’re funded to address 60,000 of those. You actually did 78,000. I’m curious about how that happened. Was it because of additional resources? How did that occur?
Are these new measures that are being introduced seen as an efficient way, and you may or may not be able to comment, to reduce the backlog that is there now?
A third question is, and, again, comment if you can, about the increase that we’re seeing. Are you seeing any parallels with respect to international crises?
Ms. Brassard: I’ll start with that last question. I don’t know if you’re going to have a UN Human Rights Council representative appear at some point. They are very well placed to talk about international trends.
Certainly, when we saw 150, 176 — and even now — they were saying greater movement. Remember that is a couple of years right after the pandemic, so there was greater movement. Now, it’s slowing down a little bit, and that is why we think we’ll get 100,000 for intake this year as opposed to the 176,000 of last year. If you drew one of those charts with dots every year, you would probably see a similar profile of lines.
We started a year and a half ago. When I arrived, we were funded for 60,000. We’re now funded for 70,000. That is why I know we’re going to do more than 70,000. We’re going to do about 80,000 cases this year. The reason is because of a number of the measures my colleagues here have put in place. It is not new funding. I can talk about Budget 2025 after if you want, but it is not new funding. It is the funding that we have and realizing, like everyone else in government, that money is a limited resource, and we need to ensure that we put the best processes in place.
We now manage nationally, even though we have regional offices. A case does not belong to a region. If we have a member ready to hear a case in Toronto and the case is in Vancouver and we have the interpreter in Ottawa, we can put them together in the same room virtually and have the hearing. Managing that way has made us more efficient.
There are a number of system improvements that we have made. Not huge system changes where we change the entire thing, but that has made us more efficient. No silver bullet, but having to find things every single place. We did a lean exercise where we looked at all of our processes, and anything that was identified as “waste” in the lean language had to be eliminated, and we’re pursuing that. With that, we’re standardizing our processes so that everything is done the same across the country so that we facilitate the work of our members, but also the work of our registrars, who don’t have to change the way they do things simply because a case is in one region and not the other.
That’s how we came to be more efficient.
[Translation]
Senator Boudreau: Thank you to the witnesses for joining us today.
My question is a follow-up to my colleague’s question. You talked about the statistics on the number of applications received and processed, but I didn’t quite understand whether the changes proposed in Bill C-12 will help the commission do its work. Will we have better results after the bill is passed, or will it cause so much prejudice that, over time, the situation could get worse?
Ms. Brassard: My crystal ball is a bit clouded. For the accumulated cases, it’ll have no impact. The 300,000 files will stay with us, and we’ll have to process them. What will change is some of them, such as people claiming refugee status after being in the country for over a year, will have to go through a pre‑removal risk assessment, or PRRA, before they come to us. As a result, it’ll reduce some of our future inventory.
In other words, once the legislation is implemented, cases that now come directly to us will have to go through this pre-removal risk assessment, so they will no longer come to us. This will reduce the number of cases we process, but not necessarily the number of cases of people who come to Canada. Do you know what I mean?
Senator Boudreau: Okay.
Ms. Brassard: Given that we’re funded to process 70,000 cases, if we can process 90,000 cases, then we’d be processing backlogged cases, which would reduce the backlog.
As far as ministerial due diligence is concerned, if it works and we receive complete files, that’ll help us. We would no longer need to work so hard at completing files like we do now. That said, how we process cases where people abandon their claims will change, at least in part. Why? Because these files won’t be completed. Immigration, Refugees and Citizenship Canada will let us know and urge us to abandon those cases. It’ll be a new way of doing things. We’ll have to experiment to be more efficient within our systems. We’ll have to see if there are any gains to be made as a result.
Now we’re just are waiting on the regulations. The legislation is a framework; the details will be explained in the regulations. Sometimes, they refer to the minister who can set out other criteria. Once we know what this set criteria looks like, we’ll be able to see the structure and figure out what to do to sustain it.
Senator Boudreau: You said it takes seven months for the security screening. Is there anything in Bill C-12 that could speed that up?
Ms. Brassard: Not to my knowledge, but officials from the Canada Border Services Agency would be in a better position to answer that question. Regardless of the law, they’re reviewing their own methods and risk management to answer that question. So I invite you to ask them the question directly.
Senator Boudreau: Thank you.
Senator Petitclerc: Thank you to our guests joining us.
I’ll continue along the same lines as my colleague Senator Boudreau. Reading Part 8, I’m trying to understand what happens if someone files their application after being in the country for more than a year, for example. Will special circumstances be taken into consideration, for example, where a child is born in Canada, but for different reasons — language barrier or international crisis, among others — they file their application after being in the country for more than a year? What happens to those cases under this bill?
Ms. Brassard: I imagine that when you talk about a child born in Canada, it is assuming they would apply later. In that case, the child is Canadian. Their parents will make the claim, but having a Canadian-born child has no impact on Canada’s international protection. It could be considered later on in the process as a humanitarian and compassionate application, but that element would not be enough to grant refugee status. Unless contrary provisions are made in the regulations or something is changed in that regard, refugees must file their application within a year after arriving in Canada.
Senator Petitclerc: If I understand correctly, there would be no exception for cases where a quickly evolving international situation could cause someone to feel —
Ms. Brassard: For someone who had no fear at the time of their arrival, but is facing a change in their country or a coup two years later, no.
Senator Petitclerc: Thank you. I may come back later to ask another question.
[English]
Senator Arnold: Thank you for the important work that you do on this. It is appreciated.
I am a bit stuck on the oral hearing. From what I have heard, it is an important part of this process. Now PRRA will not be doing that going forward. Are there any other changes besides the lack of oral hearings?
Ms. Brassard: It is difficult for me to answer looking forward. I haven’t seen regulations on what the new PRRA would look like to adapt to what would probably be a new reality of a lot more cases to begin with, and cases that have no background as in decisions from the Refugee Protection Division or the Refugee Appeal Division.
Right now, I can tell you some of the key differences. There is the oral, but there is the role of counsel that is different. At the IRB, counsel is leading their case and can effectively represent their client because it is an oral hearing. At the RAD, right now, counsel can be there, but it is a paper process, so they will help build a paper file. If there is a hearing, the person will have the opportunity to respond to the question posed by the minister’s representative, but they are not otherwise making a case. So it is a more passive role that the legislation puts them into.
We have a designated representative for minors at the RPD, and I think Bill C-12 brings that up and will allow a designated representative for people who don’t completely understand the nature of the processes, which is a good thing. Right now, at the RPD, it is all the evidence. At the PRAA, it is now only new evidence. It is one of the things that they may have to adjust because there is no such thing as new evidence. It is all evidence.
At the RPD, if the identity of the person is not established, we don’t go any further. But the PRAA can continue even if identity is not clearly established. Oral hearing, we have already mentioned. In the end, to your colleague’s point, it is the same outcome. You are determined to be a refugee, and you can get to permanent residence or not, and some other consequences apply.
At the RPD, you can go to the RAD and the RAD — the role of that is to determine if the initial decision was correct. At PRAA, the decision has to go to the Federal Court on judicial review, possibly with permission, as it is now. The Federal Court can accept to hear the case, or can decline to hear the case.
At the RPD, we have a transcript of the proceedings. Everything is typed and then transcribed. That’s one place where we use AI to do the transcription. The PRAA, it is the officer’s notes that constitute the record. So in terms of the key differences that I can see from the current system, the new ones, like I said, at this point in time, it is much more difficult for us to really clearly delineate what is the same, what is different, and what is new.
The Chair: We have Senator Mohamed, and then we are going to fit shortened questions into round two.
Senator Mohamed: Thank you for being here. A lot of the discussion has been around the balance between security and making sure that the system is efficient, one that is allowing those who really should be here to be here. I know that you are independent, and I understand that you cannot profess on the future, but I wonder if you might reflect on this. If you think about this being done in the name of national security, where do you see the greatest risk in terms of procedural fairness to refugees? On top of that, what are the safeguards that would be essential to ensuring that decision making is independent, evidence-based and consistent with our Charter and international obligations?
Ms. Brassard: The IRB, as a tribunal, is only remotely at play in security. We decide security cases with the immigration division in particular, not the RPD. When it comes to security when refugee claimants are concerned, it is really CBSA, with the front-end security screen that they do, that will address that. Immigration, Refugees and Citizenship Canada can also be involved in that, and it is their role to ensure that the person who is here does not have a criminal record and is not a known terrorist, which could bring us to different conclusions on inadmissibility and getting in front of the Immigration Division. As far as we are concerned, when we see something in the file that suggests maybe a war crime or a crime against humanity, it is our duty to inform IRCC and ask them to intervene because it is their role to take that and make the case. As a tribunal, it is difficult to be the judge and a party to this. So that’s how we raise it.
Senator Mohamed: So I understand how the system works, in terms of ensuring that there are safeguards so that this will be independent. Safety is the umbrella that has been put under, whether you agree or not, which is one of the umbrellas. Conversely, are we doing too much that will remove some of our obligations, like the Singh decision my colleague mentioned? What is essential to stay to make sure it is a fair system that meets our obligations and our Charter?
Ms. Brassard: The courts have put some boundaries around that, and I think I would go back to those. The rights to be represented, to be heard, to file evidence, and to appear in front of an independent decision maker are important. Sometimes having an appeal right is part of systems that allow for rights to be upheld because, despite all the best intentions, sometimes the first level is missing an element, and although I said we are not often overturned, we are from time to time, and it is normal. That is how the law evolves.
Senator Mohamed: Thank you.
The Chair: We have a round two that we will limit to two minutes for questions and answers so that we can accommodate Senator Muggli, Senator Dean, followed by Senator Senior, as the only three we can accommodate in the second round.
Senator Muggli: What a privilege. Congratulations on using the Lean process. I’m a certified Lean leader and always a fan of reducing the muda, or waste, because the real goal is client satisfaction in the end. So I would encourage you to carry on that journey. I have heard from the Saskatchewan Association of Immigrant Settlement and Integration Agencies. They are very concerned that Bill C-12 will divert many claimants away from the full hearings, as we have talked about with IRB and into a process without guaranteed oral hearings. From your perspective and with hundreds of thousands of cases of experience, what are the consequences of denying access to an oral hearing before an independent decision maker? I’m wondering if, historically, Canada has relied on refugee determination processes without oral hearings, and if so, what lessons have been learned, especially relating to traumatized claimants or survivors of gender-based violence?
Ms. Brassard: That’s even before my time at the IRB. But way, way back, before the current system — and excuse me if I don’t get the details right — but there was a system where there was somebody looking at it, a paper process, making a recommendation to the minister. It was a two-step process. That’s what created the Singh decision that said, “No, we need a hearing” and that’s how it created the process.
Senator Muggli: Any thoughts on how not having potentially access to an independent hearing could impact people who are coming with traumatized experiences?
Ms. Brassard: It is independent, but all the training that we do with our members is so that we don’t re-traumatize by asking questions and that we understand that it is difficult, sometimes, for people to talk about certain experiences. Writing about it is not any easier. We make sure that to take the time it takes and put the la délicatesse in asking questions so that you get to what you need to know about the claim to still decide. Sometimes it will be a “no” because it does not amount to persecution as per the legislation and the law, but that you do it in a way that is respectful and gives a fair chance to the person to fully present their case.
Senator Muggli: All the staff have trauma-informed training?
Ms. Brassard: Yes.
The Chair: Thank you, Madam Brassard.
Senator Dean: I don’t want to take any time away from committee members, so I’m going to pass.
The Chair: Thank you very much.
Senator Senior: Thank you, Senator Dean. My time just doubled, but that would be lovely. I’m going back to the one‑year time frame that has been proposed, and I’m curious about the current process. Do you have a sense of how long it actually, on average, perhaps, it takes someone who has been through trauma and torture, et cetera, to come before the IRB to make a claim? My concern is that it takes time and that one year seems to be quite a cut in that process and whether or not that is even a relevant clause to be included in this bill.
The second part of my question is that I am interested in how these new measures would compare to other similar regions around the world and whether or not they have gone the same route or not in terms of some of these critical changes that are being made now.
Ms. Brassard: I would take the first question, and I think it goes to the relevance of time in evaluating how well founded the claims of a client are. Even I think the handbook from the United Nations High Commissioner for Refugees, or UNHCR, recognizes that you would expect, generally, someone who fears persecution, that they will make their claim at the first opportunity, so the first country where they can and relatively quickly upon arrival. So that’s the relevance of time.
What is “relatively quickly,” and what do we do about it at the board? We don’t have stats of when people arrive in Canada versus when they claim. The only thing we know and enter into our system is the date of referral. Members, when they hear the case, they see in the story, in the evidence, when the person arrived in Canada. If they took a long time, they will ask why, and sometimes it is self-apparent as you read the case. Country conditions changed, or something changed, and that triggered the claim, and between the trigger and the claim, the timeline is short. So lapsed time is a relevant consideration in looking at how well founded a fear is.
In that sense, like I said, we don’t have the trigger, so I can’t really answer your question about how long does it take from a statistical point of view. It is a piece of data we do not have.
Senator Senior: And compared to other regions?
Ms. Brassard: I’m not sure that other systems have a bar like this. Even if they did, I would just generally caution against adopting pieces of a process in another country in trying to make a puzzle — reconfigure a process out of bits and pieces, because those bits and pieces are in a context. It is a system.
The Chair: Thank you very much, senators. This brings us to the end of this panel.
I would like to thank Ms. Brassard, Ms. Eatrides and Mr. Ermuth for your testimony today.
For our second panel, we welcome the Canadian Bar Association, Deanna Okun-Nachoff, Barrister and Solicitor; as an individual Michael Barutciski, Professor, York University, and by video conference from the David Asper Centre for Constitutional Rights, Cheryl Milne, Executive Director. Thank you for joining us today. For your opening statement, you will have five minutes followed by questions from committee members. Ms. Milne, the floor is yours.
Cheryl Milne, Executive Director David Asper Centre for Constitutional Rights: Thank you for the invitation, and I apologize for not being there in person. I hope that my statements and answers to questions are still helpful even though I’m not there.
The David Asper Centre is an advocacy centre that is part of the Jackman Law Faculty at the University of Toronto. It’s devoted to realizing constitutional rights through advocacy, research and education.
I am not an expert on refugee law per se, but the Asper Centre was an intervenor along with LEAF and West Coast LEAF in the challenge to the Safe Third Country Agreement case that was heard by the Supreme Court of Canada.
I also happen to be the chair of a relatively new organization called the Childhood Arrivals Support and Advocacy Centre of Canada, or CASA. It supports young people brought to Canada as children and are living with precarious or no immigration status.
In the Asper Centre’s brief to the House of Commons Standing Committee on Public Safety and National Security, or SECU, we focused on two key aspects of Bill C-12, and two sections of the Canadian Charter of Rights and Freedoms, section 7 and 15.
The first area of concern is one that I heard in the previous hour of this meeting — the imposition of strict deadlines and a one-year ban on refugee claims based on the point and time of an individual’s first entry. The clear effect that the provision will be to prohibit refugee claims from individuals who would otherwise be successful but for that hard deadline, potentially. In addition there are constitutional issues with that under section 7, both in regards to its impact on life, liberty and security of the person — primarily the security of the person — and potentially, it could infringe on the principles of fundamental justice by being overbroad and arbitrary.
The other restriction is on the claims by individuals who have crossed the U.S. land border irregularly to within 14 days. Our brief outlines how that 14-day period is tied to U.S. policy that allows expedited removal for those found within a hundred miles of the U.S. border. That policy is currently subject to a court challenge in the U.S. and a preliminary injunction. There is concern about it even south of the border.
The new restriction will apply to undocumented individuals who have been living in Canada potentially for years, some of whom arrived as children.
The expansion of the reach of the Safe Third Country Agreement in this current context is, in our opinion, tone-deaf to what we are witnessing in the U.S. right now. It is not an ideal situation for people to be crossing this way, but what we’re seeing is really troubling.
In these cases, we think that both section 7 and section 15 violations are part of the concern. In fact, there are two ongoing challenges to the Safe Third Country Agreement, one specifically in section 15, which is what the argument was at the Supreme Court of Canada. And the other one, revisiting the section 7 arguments, given the current context.
The second area of concern in our brief was this sweeping delegation of power to cabinet with respect to just immigration and refugee matters more generally; the authority to end refugee claims before they reach a hearing, and the authority to specify documents and information required to support a claim. I understand this may help the Immigration and Refugee Board of Canada with their processes to some extent, but once again, we’re sort of left with not knowing what the rules are going to be. A lot of this is yet to be in regulation, and we don’t know how it’s going to play out.
The bill also grants the cabinet the power to suspend or terminate immigration processes where the cabinet views doing so as being in the public interest. That was one of the main concerns we raise at the House level. Fortunately, many of those current concerns have been addressed through reporting to the House and to the more robust definition of public interest. However, there is no mechanism for individual appeal or review of the measures being taken; it’s only at the parliamentary level.
The cumulative result of these and related reforms is to increase discretionary administrative powers to terminate claims and suspend procedural protections across the spectrum of migration categories, despite the profound effect these terminations and suspensions would have on the individuals affected.
A question that was raised earlier about the focus being on national security, the question is why? To what extent is it really about national security and not just about really limiting the level of migration to Canada? And why would we be doing that now?
The Chair: Thank you, Ms. Milne. We will hopefully get to the remainder of your comments with questions.
Ms. Milne: Thank you very much.
Deanna Okun-Nachoff, Barrister and Solicitor, Canadian Bar Association: Thank you. These are unprecedented times. The world grapples with heavy questions: Can we resist the global tilt toward totalitarianism? Can we avert a climate crisis? Can we put meaningful safeguards and guardrails on artificial intelligence? Can we act humanely, but also protectively, in the face of rising global conflict?
One thing is clear: this time calls for talking, for open and robust debate, for careful deliberation informed by the clearest intelligence, for the highest level of human collaboration. And yet Bill C-12 takes us in the opposite direction.
It seeks to bypass parliamentary debate; to erode the rule of law, to disrespect the principles fundamental to our parliamentary democracy.
Madam Chair, honourable committee members, I am here representing the immigration section of the Canadian Bar Association and stand before this committee to speak out against Bill C-12, albeit on exceptionally compressed timelines.
Just days ago, Senator Paula Simons addressed you urging that this committee take up its role as the last check and balance, to stop eroding our sovereign, proud immigration system, to reinforce an immigration system that supports Canada’s economy, Canada’s community, and Canada’s moral integrity and international reputation.
In our appearance and briefs to the House of Commons Standing Committee on Citizenship and Immigration, or CIMM, and our submission to the House of Commons Standing Committee on Public Safety and National Security, or SECU, we have argued that Bill C-12 will further impede the development of a coherent, evidence-based immigration policy, while dangerously eroding safeguards that are fundamental to our democratic process. Bill C-12 unsettlingly shifts the balance of powers in Canadian governments, bypassing long-established steps in the legislative process.
Since Ministerial Instructions were brought into the immigration scheme in 2012, an ever-increasing swath of Canadian immigration policy has been made by edict rather than by regulation. With some of the swift pivots we have seen of late, the stated intent of policy change is hard to reconcile with the impact on temporary residents and would-be immigrants.
It is no surprise that confidence in our immigration system is at an all-time low. We fear a similar impact on Canada’s brand on the global stage, which will hurt our ability to attract and retain top talent. Against this backdrop, Bill C-12 proposes expanded powers to cancel whole categories of visas and applications by order-in-council. In her appearance before CIMM, the minister assured of her intent to use these powers only in exceptional circumstances — war, pandemic or mass fraud — but these parameters are nowhere defined or stipulated in the act. Nothing will prevent their broader use.
She did allude to potential country-based cancellations on the grounds of mass fraud, which raises clear concern for discrimination on Charter-based grounds. Simply put, categorical changes without parliamentary review are not in the public interest. The values and processes enshrined in our Constitution and the obligations we have undertaken in international law must not be sidestepped. The integrity of our justice system depends on it. For these reasons, we ask that Bill C-12 be sent for further study.
Turning to the proposed one-year refugee claim ineligibility bar, risk can and does arise after entry to Canada. This is true for the individual who, after time in Canada, comes to terms with their sexual orientation or gender identity, for children separated from abusive parents through connection to services in Canada and for many whose conditions in their countries change unexpectedly. The one-year bar ignores the impact of trauma and mental illness on one’s ability to make a refugee claim. The most vulnerable will bear the brunt of this change.
Persecution does not obey legislative timelines or stay confined within the first year after one’s entry to Canada. Exceptions, such as those proposed for unaccompanied minors, are a recognition of vulnerability, but they do not and cannot fix such a blunt tool because not all vulnerabilities can be easily or categorically defined.
If Bill C-12 becomes law, an arbitrary date will now split persons facing risk into two groups, one with the right to an oral hearing that allows them to explain their circumstances before expert and independent decision makers governed by IRB rules and guidelines, administered by specialized teams. The second group will be given only a written application, the PRRA, which will be adjudicated by IRCC employees without an automatic full hearing on the merits and with few of the essential procedural protections.
If the purpose of this one-year bar is to prevent backlogs of refugee claims, this goal will not be achieved. The claims have not gone away; they will just be redistributed to IRCC. Recently, IRCC has been showing longer delays, not to mention lower rates of approval, and for the beleaguered Federal Court, double the resources will be used if a decision is challenged because there must now be a stay of removal and an application for judicial review.
The Chair: Thank you very much, Ms. Okun-Nachoff. Mr. Barutciski, the floor is yours.
[Translation]
Michael Barutciski, Professor, York University, as an individual: Today’s topic is a polarizing one, so I’m a little uncomfortable taking part in these discussions.
I hope you don’t see me as fuelling this polarization, but rather as someone who seeks to find an acceptable balance.
[English]
Immigration and asylum are two areas that provoke strong reactions, and that’s why I think it’s particularly important to look at the contentious issues in a sober manner so that cooler heads can prevail.
Why we’re even here involves a specific context that we have to keep in mind. There was a historic public policy failure on the immigration file. I think some don’t recognize the gravity of what happened and would like to pretend as if it’s back to business, as usual. I think that’s unwise because many temporary resident visas are expiring, and we don’t know what will happen to these migrants. There are huge backlogs in several areas, and there’s a crazy administrative practice of so-called interim status. In addition, asylum claims are still high if we compare to our peers and to our own past numbers. We’re not out of the woods yet. So we’re looking at special measures to make sure we get back to a functional system. A lot of what’s proposed in Bill C-12 would be hard to understand in a different context.
One more observation before I quickly comment on the details in Bill C-12. If you believe Canada is a rich country that should be trying its best to allow as many people from poor countries to enter — in other words, to help the ones who lost out in the birthright lottery — then I urge you not to use asylum as the vehicle. I have sympathy for solidarity-based ideas, but at the moment, I’m more concerned about maintaining public trust. That’s why the asylum system needs to be reined in. Otherwise, we risk even more questioning of immigration than what we’re already seeing.
I’ll quickly focus on Parts 7 and 8 because I think they’re the most contentious, and we can all benefit from careful thinking.
On the mass cancelling ability in Part 7, from my perspective, the new amendments introduced in December might satisfy the bare minimum to make sure there’s at least some transparency. If we want a mechanism creating parameters around the use of this new tool, then I think at least some public debate and scrutiny can be encouraged by obliging the minister to report to Parliament. I can understand, however, that many Canadians might think these are still insufficient safeguards.
A few brief words on eliminating the 14-day exception in Part 8. To me, this is a simple way of neutralizing the incoherent 14‑day rule introduced in the amended version of the Safe Third Country Agreement. Claimants should return to the U.S. to seek asylum if the government considers the U.S. is safe for asylum seekers. It’s a controversial issue, and I urge the government to be courageous politically and to publicly explain its ongoing position. I don’t think, however, this is the right time or place for that difficult discussion.
I’ll continue with the one-year deadline in Part 8 with two comments. The one-year filing deadline is a controversial issue that imitates the U.S. approach. There’s a reason why it’s introduced, and it shouldn’t be dismissed so easily. If I can suggest a small compromise, let’s calculate from the date of an individual’s last entry, not the date of the first entry.
I have another suggestion. UNHCR uses the expression réfugiés sur place to highlight changed circumstances in the home country while the migrant is residing in another country. We should consider somehow enhancing the pre‑removal risk assessment so that it explicitly addresses UNHCR’s concerns.
I’ll close with some general remarks.
If we think that asylum is supposed to provide anyone, from anywhere, the right to claim protection in any country, then I think we are deluding ourselves. Voters in our democracies always push for laws that control migration, while advocates and academics, in turn, push judges to interpret these laws in the most open way possible. I believe we are now reaching the breaking point, and that’s why many Western countries have been tightening their rules. I’m afraid we won’t have much choice than to harmonize our system with our allies and prepare the legislative groundwork so that this can happen smoothly.
[Translation]
Thank you for the opportunity to appear before your committee.
[English]
The Chair: Thank you, Mr. Barutciski. We will now proceed to questions from committee members.
For this panel, senators will have four minutes for your question, including the answer. Please indicate if your question is directed to a particular witness or witnesses.
Senator Burey: Thank you for being here today speaking on this very weighty matter.
Ms. Okun-Nachoff and our witness from the Asper Centre, can you respond to this? Were you consulted on these measures? Was there any kind of a sit-down with stakeholders, civil society or your organizations when this bill was being put together?
Ms. Okun-Nachoff: I am not aware of there being any approach to the Canadian Bar Association in advance of the regulatory package being put forward. Any consultation that was requested from us was after the fact. We were asked to speak before CIMM but not before SECU; however, we did put in a brief there, as well.
Ms. Milne: We weren’t consulted, and I am not aware of consultation with other organizations.
Senator Burey: Thank you.
In the last panel, we heard from the IRB, and they spoke about a very complete process. If the IRB were given the mandate and resources to expand upon their role, do you have any thoughts as to what that could look like?
Ms. Okun-Nachoff: I have been practising before the IRB for some time now, and I have seen an important evolution in the way that the IRB has managed the increased workload and developed guidelines for dealing with trauma-informed practices and victims of domestic violence. I have no doubt in the competence of that tribunal. It has been hard won. There have been a lot of court challenges going back and forth, which have helped refine the way in which they do their work.
I think those are elements that partly explain why they are our expert tribunal in Canada. That is why I think the bar is so concerned about reinventing the wheel and duplicating efforts that have already been made.
Senator Burey: Do you have any comments, Mr. Barutciski?
Mr. Barutciski: Regarding reinventing the wheel, I understand the concern. The question is: Are there circumstances such that we do actually have to do something differently? Even the IRB procedures have evolved in fundamental ways since the IRB was created in 1989. We had a two-step procedure, with quick decisions at the first. We have changed a lot, and I think we might be in that sort of situation where we need a different procedure.
Ms. Okun-Nachoff: I would love to see new manners of dispute resolution and new formats of trying to get cases brought in a non-adversarial format. I do think there is room for improvement, but there has been a lack of resources to do some of that innovative work.
Again, it is much like what Senator Simons said the other day: Rather than starting fresh and pushing this to a new group of IRCC employees, stick with the tribunal that has already started implementing these lean tactics to try and figure out the best ways to tackle the problem.
Senator Hay: Thank you all for being here. I want to talk a bit about Part 5, which amends the Department of Citizenship and Immigration Act to authorize the disclosure of personal information for the purpose of enforcing or administering other acts, and amends the Immigration and Refugee Protection Act to allow the minister to create regulations concerning the release of personal information.
As I interpret this, it allows the Minister of Immigration, Refugees and Citizenship to share personal information with IRCC for any purpose related to administering immigration programs and, externally, to federal departments, Crown corporations, and entities under federal and provincial law agreements. Information cannot be sent to foreign governments without the minister’s consent; therefore, it can, with the minister’s consent.
I just want to understand this a bit better. You mentioned AI earlier. How concerned are you — or can you comment — about the bill’s broadened information-sharing powers, especially where information may originate with or be transmitted to foreign entities or governments, which could definitely impact a claimant’s potential safety in terms of potential persecution? Also, do you believe the current privacy frameworks are sufficient to protect the safety of refugee claimants?
I’m looking at the Canadian Bar Association, but anyone may answer.
Ms. Okun-Nachoff: It’s of great concern to the Canadian Bar Association and is something we spoke of in a much longer paper that we wrote on the subject called Law, Technology, and Accountability: Reimagining Canadian Immigration for the 21st century that had 100 recommendations. I have seen in my own practice that there are situations in which we know that, while somebody’s matter is before the RPD, there have been requests for information made through a CBSA liaison in the source country. It is very difficult for us to even find out even what that means, and, if a claim is refused, is that person vulnerable because of that request?
Generally speaking, when there is an adoption of new information sharing in my own practice, I see that being used for the purposes of enforcement. It’s just difficult when you’re trying to advocate for somebody and you don’t have access to the entire record, and your client doesn’t have the same information-gathering tools as the department does.
I’ll leave it at that. I’m not an intellectual property expert.
Ms. Milne: If I could jump in on behalf of CASA, there is a real concern about information sharing that involves young people and children. They have a heightened right to privacy, so there is a real concern that there is a lot of fear about how this information can be shared and that it could lead to people not seeking out care if they need it, as well as health care. It also might affect access to higher education and schools. Those are real concerns.
The Chair: Ms. Milne, you have been cutting in and out, so we have missed some of what you said.
Ms. Milne: I will say it again very quickly: There is a real concern on behalf of the Childhood Arrivals Support and Advocacy Centre of Canada, or CASA, around the sharing of information involving children and their own fear of what happens when their information goes out there — and barriers of access to care, health care, services, potentially schools and post‑secondary education.
Senator Dean: As much as I would like to ask a question, I will stick with my previous approach, so I will pass.
Senator Muggli: My question is for Ms. Milne.
After speaking with colleagues and staff, we agreed that the wording used in your brief jumped off the page:
The Asper Centre opposes Bill C-12 and submits that it is unconstitutional legislation in its current form.
That is a pretty strong and unequivocal position. Could you explain to us in simple terms what makes this bill so obviously unconstitutional?
Ms. Milne: I think you heard a hint of it in the previous panel, which was that have the case of Singh saying that oral hearings are required for refugee claimants. We now have a new system that is going to eliminate that for a large number of claimants where we have an issue with the Charter.
The other area is the one-year bar, which can really impact the section 7 rights of those people who don’t meet the bar —
The Chair: Ms. Milne, we are losing you quite frequently now. Our clerk is suggesting that you leave us and re-enter to see if we get a better feed. If we do not have continuous oral representation from you, our interpreters cannot do their work and your testimony becomes invalid.
Could you please try leaving and returning, and we’ll give you an opportunity to speak?
Senator Muggli: Or a written response to that question would be appreciated as well.
Ms. Okun-Nachoff, could you reply to that, as well?
Ms. Okun-Nachoff: Certainly.
I believe what was going to be said is that constitutional compliance cannot be guaranteed given the fact there is not an embedded right to an oral hearing. There are other examples of that, though, such as the provisions around designation of representatives in non-IRB hearings.
We do actually welcome this change, and yet the manner in which the designated representatives are being appointed is such that they are actually different from designated representatives in other areas of the immigration scheme. They are actually substitute decision makers and can speak on behalf of somebody who doesn’t have the capacity to represent themselves. In this context, as put forward in Bill C-12, they can actually make those decisions on behalf of that person, and there is no framework to ensure they are doing so within constitutional parameters. They can even make the decision not to pursue a pre-removal risk assessment. So there aren’t those safeguards. Again, things like that, we are very concerned about whether or not —
Senator Muggli: Is a substitute decision maker referred to somewhere?
Ms. Okun-Nachoff: Yes, I believe it is, actually. I have to pull up the language myself. I’m sure my colleague who is watching me from Toronto will do so.
Senator Muggli: It would be helpful to see that. Thank you very much.
The Chair: Thank you.
Senator Senior: Thank you so much. I want to go back to the one year and the 14-day time limits. If you had your choice to get rid of a couple of these clauses, which would they be?
Ms. Okun-Nachoff: The Canadian Bar Association was asked by the Standing Committee on Citizenship and Immigration to do just that, and we just found that there was no way to provide carve-outs that would ameliorate the situation, so we declined. I would agree with my co-panellists that the past claims and last entry, as opposed to any entry or first entry, are some pretty obvious issues there. At the same time, the United Nations High Commissioner for Refugees has said that any categorical exclusion should be avoided because these things are not categorical and cannot be defined, and there needs to be a process by which individual assessments are done. That is also something that has been assessed by the Supreme Court of Canada. There is no way to do this in a categorical manner.
Senator Senior: Mr. Barutciski, do you have an opinion?
Mr. Barutciski: If we are talking about the one-year rule — and I think there is discomfort about what the procedure is afterwards — we are agreeing that the PRAA may not be sufficient. I think we’re all discussing different potential procedures. If we accept that circumstances have changed, and we actually do need some sort of oral hearing to satisfy the same requirements, then we’re looking at how can we enhance this. What it is exactly, I’m not sure, but we have elements of possible approaches and procedures that are enhanced for specific kinds of cases. I would just remind you also that there is a reason why that one-year time limit was introduced by Americans a long time ago and why the government thinks it is wise to do introduce it now. But we also want to protect in relation to changed circumstances. What is the procedure given that we have the same requirements, and we want to treat migrants with dignity. Maybe circumstances have changed, and we do need something.
Ms. Okun-Nachoff: Some of the most meritorious claims for which I have advocated came after the one-year limit, because in that first year, the person was so incredibly traumatized that they couldn’t utter the experiences that they had. It is only after many meetings with me before they can even speak the words. I understand that there is a desire to be able to put a line down, but it is a line in the sand. You also asked about the 14 days, and that brings up issues around the Safe Third Country Agreement. This is another entire question that deserves days of conversation. For me, the question is whether this is the right moment to be doubling down on the Safe Third Country Agreement, because, again, I have numerous claims on my desk that will be beyond the one year or will be excluded because of the Safe Third Country Agreement. I just think this needs more time.
Senator Arnold: Thank you. My question is for Ms. Milne. You brought up the Childhood Arrivals Support and Advocacy Centre of Canada. Part of our role here is to ensure that decisions that we make don’t have bad, unintended consequences. One thing that I heard from various meetings I have had with refugee clinics in New Brunswick was that they felt that unaccompanied children crossing the border could become a bigger issue with these changes. Could you speak to that?
Ms. Milne: Yes, I hope that I come through clearly now.
Senator Arnold: No.
The Chair: Ms. Milne, can you take the question and be willing to provide a written response so that we do not lose your contribution?
Ms. Milne: Okay. I will do my best. I’m sorry.
The Chair: Okay. Thank you.
[Translation]
Senator Petitclerc: I have a question for you in French. I also want to come back to the one-year period. You may not be able to give me a specific answer, but I’m trying to wrap my head around what it means.
The witnesses on the previous panel said they have no statistics. I find that troubling. Where are those numbers, and how did we land on the one-year period? Mr. Barutciski, it sounds like you’re saying it’s based on the American model. Would there be any other elements related to that one-year period? Here’s my question, and maybe Ms. Okun-Nachoff could help us with that, but in general, because I imagine you don’t have the exact figures, the number of files that exceed that one-year period, what does that represent? Is it exceptionally high or modest? Are there many? I’m trying to get a sense of the impact of that one-year period.
[English]
Ms. Okun-Nachoff: First, the data does exist, because when you actually file a claim, you need to indicate which date you arrived and on which date you are making your claim, so it could be pulled somewhere from the system. Similarly, the information as to whether or not that was a successful claim or an unsuccessful claim would be in their system. The data is with the department.
However, from my own practice alone, I would say it is at least half of my practice, and I carefully curate the cases that I bring forward, screening them for merit. I don’t know that my own anecdotal experience is representative, but to me, there is a principle that comes up through the law that if you have delayed making your claim, it must mean that the claim is not genuine because a person who is fleeing persecution will make their claim immediately when they have the opportunity.
My own experience is that this is not the case, actually. Many people are in terrible shock. It is trauma theory: Fight, flight or freeze. Many people in profound shock freeze. I have discovered that that is a more common response in my practice. I think that is being realized now, and it is worked into the Refugee Protection Division guidelines, but as I have said, this has been a long journey. Neuroscience is catching up, and the board is learning. I have seen a real change in the culture.
Senator Petitclerc: Thank you. I understand you are speaking about your own practice, but if I understand correctly, this would impact not just a few individuals. The data is somewhere, and we need to find it.
Ms. Okun-Nachoff: Yes, of course. I am speaking on behalf of the Canadian Bar Association, but as refugee practitioners, we communicate, and that is where this level of panic is coming from. It is not because lawyers make a lot of money by practising refugee law. It is because we all have these cases on our desks that we are very worried about. They involve people who are in profoundly compromised situations where their claim will cease to be entitled to the claim strictly because of how long it took them to come to terms with what they have experienced — the extreme torture that they might have survived.
[Translation]
Senator Petitclerc: The 12-month period can only be explained based on the American context? Not the context, but —
Mr. Barutciski: As my colleague said, it is the fear of abuse, the fear that people will stay for a long time. It comes from that perspective. The minister should be required to publish the statistics we just discussed in her annual report on November 1 of each year.
I recommended that in a recent report. We need to have those statistics if we’re to have a real discussion.
To continue along the same lines as what my colleague said, my impression is that based on the statistics from two or three years ago, a lot of applications are being made at land borders and airports. In the past year and a half to two years, we’ve seen fewer of them made at the border because of stricter visa policies. Instead, we’re seeing more applications made in the country at Immigration Canada offices in different cities. Therefore, we can assume that there are more applications made that way and that these people are already here. That’s why we need the statistics. Did they stay? Did they take a year or more to come to grips with their situation, the trauma and who knows what else? It’s possible. I think we need that information to make an informed decision.
[English]
Senator Petitclerc: My question is could the committee try to have access to those different statistics? I think this would be helpful for the whole committee. In our study, is this something we could do?
The Chair: We would reach out to the IRCC and to the minister. It is something we will do. Thank you.
Senator Senior: Is it possible to add to that to ask on what basis was the one year determined? It is related.
The Chair: Thank you.
Senator Muggli: I will start with Ms. Okun-Nachoff.
In order to avoid potential Charter challenges, do you see any amendment that could help avoid that?
Ms. Okun-Nachoff: This was precisely the question that we got at CIMM. There is a submission that speaks directly to this question. Ultimately, our response was that we can come up with no such amendment that would meet that goal.
Senator Muggli: Thank you. I wanted to get that on the record.
Ms. Okun-Nachoff: My colleague found the answer to your last question, which is that it is Part 6, section 31, where it says, with respect to designated representatives, the circumstances in which a representative may make decisions on behalf of the person they represent. That is the wording that is like a substitute decision maker.
Senator Muggli: Similar.
Ms. Okun-Nachoff: Yes.
Senator Muggli: Thank you, that’s all.
Senator Senior: I have two questions, one is with respect to the implications of the June 24, 2020, date; what are the implications as a result of that date for some of the files that you have mentioned?
With respect to the increased role of the minister sending cases to the IRB, can you speak to what that signifies and the implications therein as well?
Ms. Okun-Nachoff: The June date, that was actually my first question that I asked when we were brought in for a briefing the afternoon that the legislation dropped.
What I was told is that’s the first moment they had sufficient, reliable data as to when somebody entered Canada. It was about the robustness of the data, which, again, is completely arbitrary. There is no magic to it.
The second question, you are asking me about when the decision is made as to whether or not something is entitled to go for a full hearing and when? To be frank, I am still quite vague on what that actually means.
There are cases, for example, where I have filed the claim since this bill came forward and they have had their eligibility decision, and they were sent for a full hearing.
I don’t know if that means they are safe because of the way that the transitional provisions were put into place, or if they will eventually be told, no, we’re not scheduling your hearing; we are going to divert you for a PRRA.
What that process will be, how that decision will be undertaken, by whom, exactly on what timeline — because the transition provisions are written in such a way that it backdates it to the date that the bill was first introduced, which I have never seen before in my career. It is not as of the date that it becomes law, which is what we typically see.
I don’t know if that answers your question, but I, too, am a bit puzzled.
Senator Senior: Another question, if I have time, is with respect to the transitional provisions. Could you speak to what those are at this moment?
Ms. Okun-Nachoff: What they say is that when this law becomes law, anyone who meets the criteria for exclusion will be impacted as of the day that Bill C-2 was introduced as a bill, the predecessor, yes.
Again, we’re all still grappling with it. To be honest, we haven’t even, as a bar, had a chance to truly convene as a group and work out all of these nuances. A lot of it will still be by surprise, and we’ll be figuring it out on-the-fly. We have just been grappling with how to advise clients as they are coming to us today. Yes, those are the conversations that are going on between us now.
Senator Senior: Would you have any further comments?
Mr. Barutciski: Two quick points.
I think if we go back to 15, a bit more than a year ago, let’s remember the Minister of Immigration, Refugees and Citizenship was saying the system is out of control, or some parts of it, and there’s abuse. So it is a bit of, I assume, within the department, worrying about, “Oh, we have to go back and try and fix as much as what we let in,” all the visas and everything we were more relaxed and lenient on. I assume that is where this is coming from.
The other little detail that might explain a bit is I was following how in the last six, seven years CBSA has been controlling entry in a different way. It is around that time. That makes sense. It is around the beginning of the pandemic that a new system — they have much more data that could be part of this discussion as well.
Little by little, they are starting to give, or share, but not that much. It was around that time they started changing the way they collect data at the border.
The Chair: Thank you. This brings us to the end of this portion of the meeting. I thank the witnesses for their time and for being with us today.
Senators, we will go in camera to have a discussion. Thank you.
(The committee continued in camera.)