Strengthening Canada's Immigration System and Borders Bill

Honourable senators, I want to start by thanking Senator Dean for his thorough and elegant sponsorship of this bill. It is, indeed, big and challenging work. Thank you.

I am rising to support Senator Woo’s amendment. I’ve supported all of the amendments raised so far because I’m concerned about Parts 5 to 8. We have heard call after call to remove those parts entirely from Bill C-12.

These amendments are a compromise. I can tell you that stakeholder groups would have preferred we remove these parts rather than amend them. They feel our amendments reduce harm but do not eliminate it. On the other hand, I know that many here would prefer we don’t amend at all.

Most of us will be unhappy with the end result of our work on Bill C-12. Perhaps this is the very definition of a successful compromise.

Senators, this bill has already been amended. We are already sending this bill back to the House with amendments. This amendment is worthy of your attention.

I have big feelings about Bill C-12. I have been in this chamber long enough, spoken often enough that you likely know that I bring feelings and my experience to speeches about bills. I’ll be speaking today about oral hearings, about the importance of having your voice heard, about why this matters and why we should support Senator Woo’s amendment.

First I want to comment on process. What we’re doing here at third reading is exactly what we were appointed to do. This is the expertise and the debating abilities we were appointed for. I’m so grateful to all those who have intervened so far, who have been diligent in bringing forward amendments at third reading.

At the same time, I am disappointed by the approach we took with this bill — sending controversial parts to be studied at the Social Affairs Committee and giving only the National Security Committee the power to amend. This doesn’t work.

Incredible, powerful expert testimony was heard at the Social Affairs Committee. Committee members heard and understood the need for amendments to Parts 5 to 8. And then the National Security Committee members were asked to decide. This isn’t respectful of our work as a whole, and I hope it doesn’t become a pattern.

I will note that the Social Affairs Committee, in its report on Parts 5 to 8, wrote:

Witnesses cautioned that the proposed change to a paper-based PRRA system for these claimants could significantly limit their ability to present their case, with the requirement for a credibility-based oral hearing being subject to a decision by IRCC officials. This could in turn result in fewer safeguards against “getting it wrong”, in an increased risk of deportation, and in a disproportionate impact on people from vulnerable groups. Among other things, witnesses recommended that Part 8 be amended to allow those deemed ineligible under the proposed provisions to access a mandatory oral hearing and to retain the right to a full appeal at the Refugee Appeal Division of the IRB. . . .

This amendment deals specifically with recommendations made by our colleagues at the Social Affairs Committee.

Now, I feel for this amendment, particularly because I’ve done hearings for my entire career. As an administrative law lawyer with a focus on injured workers and workplace safety, I typically represent my clients before administrative tribunals.

Since the pandemic, we’ve been exclusively working via video conference. Nothing is better than in-person hearings, but we do make that work.

These hearings are crucial. They test the credibility of the witness and ensure due process. Participants feel that the system works and is based on listening to evidence and making decisions based on that evidence.

Administrative tribunals establish a workplace injury and its impacts. These hearings have a massive impact on the rest of a person’s life and can validate the harms they have experienced. Immigration hearings and administrative tribunals have a major point in common: They give people the opportunity to use their voice. No document or form is more powerful than someone’s testimony.

Senators are uniquely placed to understand the importance of oral testimony. We have an obligation to listen and to hear. This is central to our work in the Senate, in committee, during ministerial question period and in Committee of the Whole.

We are receiving briefs from witnesses and emails from Canadians, as our staff and inboxes can attest. They are pouring in by the hundreds, if not thousands. So far, we’ve received over 2,000 emails about Bill C-12, and there’s no end in sight. However, there’s no substitute for in-person meetings or for hearing a person speak in the room.

With that in mind, I think that we all understand the importance of oral hearings and why it is so crucial to guarantee this right to asylum claimants who fall under the ineligibility provisions.

There has been a conversation in this place about institutionalists, activists and cynics. Let me put it on the record now: I’m all three, and I’m not any of them. I’m a Black Franco-Ontarian daughter of an immigrant. I’m a lawyer and a politico. I’m both hopeful and fearful; I am both vigilant and serene. I am intersectional and complex, as all of us are.

None of us are one thing. All of us stand behind the principles and values we hold dear. I choose complexity, and I discard the idea that we must be one thing or another. I contain multitudes. I will live in the grey between black and white. I will hold my institutions dear, and I will hold them to a higher standard. I will be an advocate for change because this isn’t a perfect country, this isn’t a perfect bill and I have come to the Senate to do what I can to make them better.

There’s another personal element to this for me, as well as for others in this place — senators and staff alike. Some of us are on alert. Many of us are immigrants or children of immigrants, and there’s this feeling about Bill C-12 — the message it is sending — that is worrisome. It speaks of immigrants and refugees within the context of crime and criminal activity. The conversation must be broader than that.

Senator Pate reminded us yesterday that this is about procedural fairness and safety. This is about people who often have the least power to protect or defend themselves. Many in our communities are uneasy. There’s a concern that the government doesn’t have the best interests of asylum seekers and other immigrants at heart.

That is what we heard from stakeholders. We asked them for their advice and their expertise, and this is what they told us.

I’ve been in conversation with the Community Legal Services of Ottawa, CLSO, an incredible team of legal clinic advocates who were so grateful to be able to share their concerns. I am grateful to them for their insights. Here’s what they want you to know: Access to oral hearings is not just a minor concern but rather a fundamental component of procedural fairness. The individuals we’re talking about here are facing life-altering decisions. They deserve the opportunity to respond to concerns, clarify inconsistencies and provide testimony for a fair credibility assessment.

Bill C-12 creates a bifurcated system where some are directed to the pre-removal risk assessment, or PRRA, process and others to the Immigration and Refugee Board, or IRB, depending upon when they file their application.

I think it’s safe to say that the CLSO is not satisfied with asylum claimants being diverted to the PRRA system. Pre‑removal risk assessment officers and Immigration and Refugee Board decision makers do not receive the same training and do not operate under the same credibility assessment framework.

I’m going to get specific to illustrate the reality of what lawyers in this space, like those in the CLSO, are going to face.

The IRB has multiple accessible channels for communication and information. Registrars are assigned to files and can be reached by telephone or online form, and there’s detailed public guidance on how to prepare for a hearing. There is no comparable level of accessibility in the PRRA system: no direct phone line or email, no readily available online forms and documents must be sent by courier or epost Connect. This creates accessibility barriers, especially for self-represented individuals.

I can tell you that this transition to epost Connect has even been challenging for me as a legal clinic lawyer. It’s a barrier for my clients, too.

The CLSO’s concerns about the PRRA system include insufficient transparency regarding decision maker qualifications, inconsistent treatment of documentary evidence and elevated evidentiary thresholds beyond those required by law.

A letter sent to Prime Minister Carney by 164 migration scholars described the PRRA process as deeply flawed, non‑independent and having historically negligible approval rates. The Canadian Civil Liberties Association described the PRRA mechanism as “an inadequate and deeply limited substitute for a fair and full refugee determination.” Oral hearings are the gold standard. In Canada, PRRA hearings are okay; IRB hearings are better.

What we’re dealing with here is a major compromise, a word that Senator Petitclerc used several times in her speech. Stakeholders prefer the IRB process for oral hearings. This government bill is sending some asylum claimants to a paper-based PRRA process. Senator Woo’s amendment would ensure that, at the very least, these claimants have access to an oral hearing through PRRA. This is the bare minimum.

Honourable senators, the Canada I know is welcoming and built on a foundation of openness, generosity, sharing and fairness.

The Canada I love is a Canada where marginalized people — the very people I fight tirelessly for — are treated fairly, a Canada where government legislation does not penalize the most vulnerable.

Stakeholders told us that the people this bill will impact include survivors of gender-based violence and LGBTQ+ individuals seeking asylum. It may take years for these people to reveal their trauma and disclose their identity. They deserve to be heard.

As Senator Henkel told us yesterday:

No documentary analysis can replace the opportunity for a refugee claimant to explain their story, answer the decision maker’s questions and personally defend the credibility of their account.

It is fair for asylum claimants who fall under new ineligibility provisions to be granted a mandatory oral hearing.

Colleagues, we have the authority, the mandate and the evidence to support this amendment. I ask that you join me in doing so.

Thank you, nia:wen.

Honourable senators, I would like to take a few minutes of your time to speak in support of Senator Woo’s proposed amendment. Please be patient with me. There’s nothing new in what I’m about to tell you today that you haven’t heard before, but this is the first time I’ve risen to talk about an amendment to a bill, because I believe in it and I believe it’s important.

This is a somewhat technical amendment, but it’s an important one. It directly addresses concerns that were raised throughout the study of this bill. More specifically, it addresses the concern that Bill C-12 is unconstitutional.

Senator Woo’s amendment addresses the constitutional issue in the most restrictive manner possible. It is a proven amendment that was used once before, in 2019, to bring a similar process into line with the Constitution.

Let’s get some things out of the way first. This amendment, as was mentioned, does not remove the new ineligibility provisions introduced by the bill. It does not reopen access to the Immigration and Refugee Board for those individuals. It does not create a new process that will have to be stood up by Immigration, Refugees and Citizenship Canada, or IRCC. It simply ensures that an oral hearing occurs before a final protection decision is made. In other words, it specifically addresses the question of procedural fairness.

During our committee study, witnesses explained that the pre‑removal risk assessment, or PRRA, often happens without a hearing or the procedural safeguards available at the Immigration and Refugee Board. They noted that these decisions are often based on written submissions rather than oral testimony.

We heard that immigration officers, who are less trained than independent tribunal members with specialized expertise in refugee law, make these decisions at the pre-removal risk assessment, PRRA.

Importantly, there is no statutory right to appeal a negative PRRA decision and no automatic stay of removal during judicial review. This is a problem in itself, but not one addressed by this amendment.

When we put it all together, this means that without this amendment, individuals affected by these new ineligibility provisions are likely to face deportation without ever appearing before a decision maker in person.

During testimony, an International Civil Liberties Monitoring Group representative warned that expanding immigration enforcement powers should be coupled with safeguards for fundamental rights and to prevent arbitrary decision making.

To that point, this amendment is a step in the right direction.

I would now like to move on to another important reason this amendment deserves our support. It helps ensure that the legislation remains consistent with Canada’s constitutional obligations.

We have heard repeatedly that the Supreme Court of Canada addressed the procedural rights of asylum seekers in the landmark case of Singh v. Minister of Employment and Immigration. In that decision, the court found that asylum seekers who are here in Canada are entitled to the protection of life, liberty and security of the person under section 7 of the Charter. Witnesses told us that Bill C-12 deprives asylum seekers of this right. They stressed that when decisions are made that could result in deportation and expose individuals to potentially serious harm, a fair hearing process is necessary. The David Asper Centre for Constitutional Rights reminded us of this, as did the Canadian Bar Association and many others. The amendment in question addresses this concern.

Finally, I want to remind my colleagues that this is not a new concept. Parliament introduced the same guarantees back in 2019 when the House was considering the budget bill. The bill created new refugee ineligibility provisions that barred certain persons from accessing the Immigration and Refugee Board. In that case, the government agreed to create a mechanism allowing for oral hearings during the advance risk assessment process for certain categories of inadmissible applicants.

The amendment before us today extends the same principle to people who trigger the new ineligibility provisions introduced by this bill. We know that Parliament clearly has the authority to introduce measures for managing the refugee system and to bring these measures in alignment with the Constitution. The question before us today is whether Parliament will reiterate the message that we sent the government back in 2019 and once again act to uphold the constitutional rights of persons living in Canada. Last time, the House of Commons was the one that took that step. Today, it’s up to us to do exactly the same thing.

Before I wrap up, I’d like to share one final observation. I understand the various political and social pressures that have intensified around the issue of immigration in recent months and years. However, it makes me sad to think that a country like Canada, which has long defined itself as a welcoming refuge in a hostile world, is reacting so thoughtlessly to these new demands. Many witnesses told us that these new provisions could have negative repercussions on tens of thousands of people who are already in Canada. That is not the Canadian way. At a time when Canadian pride is at its peak, I would have hoped that our sense of empathy would follow suit.

Honourable senators, this amendment is a modest but important safeguard. For these reasons, I will support it, and I encourage you to do the same.

Thank you. Meegwetch.

Honourable senators, being last on the list I risk being repetitive, but I will do my best to move through. I rise today as a member of the Standing Senate Committee on Social Affairs, Science and Technology to relay witness concerns on Bill C-12 and, specifically, this amendment, which stands out to me as fundamental. Thank you, Senator Simons and Senator Woo, for sharing the results of the pilot you had mentioned earlier. I was unaware of that work, but it has further convinced me to support this amendment.

Hearing from witnesses at the Social Affairs, Science and Technology Committee, I was struck by how many expressed deep concerns for the people who will ultimately have to navigate the system under Bill C-12. We reviewed the lived reality of some of those who will interact with the refugee claim system. We heard a lot of stories about survivors of torture, many coming from countries at war or fleeing gender-based violence. I won’t go through that again because I think we understand the seriousness of it.

I will say that these people are not arriving as fully prepared litigants. As Amnesty International told us, they often mistrust authorities and are deeply frightened. Psychologists will tell us that these realities take time and courage to address, and how much time that takes is different for everyone. But the timeline, as we talked about earlier, outlined in Bill C-12 is the same — 12 months — regardless of circumstances.

I want to relay what we heard from many witnesses on this topic, which is that “. . . making a claim in a timely manner is irrelevant to whether . . . a person needs protection.”

To quote the Canadian Council for Refugees, “ . . . how or when a person arrived has no bearing on their need for protection.”

This raises a broader question about the policy choices being made in Bill C-12. In my view, this provision sets aside individual circumstances and instead relies on a fixed timeline to decide who can access Canada’s refugee determination system.

At the Social Affairs, Science and Technology Committee, we heard examples of how rigid timelines can produce deeply unfair outcomes. What happens when someone misses the one-year deadline? Bill C-12 would prevent them from having their claim heard before the Immigration and Refugee Board. Instead, they are diverted to the pre-removal risk assessment process, commonly referred to as a PRRA, housed inside Immigration, Refugees and Citizenship Canada, IRCC, a department that recently experienced significant budget cuts, similar to all federal departments.

Witnesses were remarkably consistent in their concerns about this substitution.

The Canadian Association of Refugee Lawyers warned that the bill would:

. . . shift newly ineligible claims away from the Immigration and Refugee Board of Canada (“IRB”) to a deficient paper-based process with no right to a hearing.

The David Asper Centre for Constitutional Rights went further, warning in their submission that moving to written submissions in the PRRA breaches the fair hearing aspect of the principles of fundamental justice.

And the CBA, Canadian Bar Association, said that “. . . constitutional compliance cannot be guaranteed given the fact there is not an embedded right to an oral hearing. . . .” in the PRRA process.

These concerns are not new in Canadian law. We heard that the Supreme Court of Canada, in the Singh decision, established that refugee claimants are entitled to a fair hearing when decisions affecting their lives and security are being made.

Several witnesses expressed concern that the legislation could result in fewer safeguards against “getting it wrong” for individuals who have come to Canada as a last hope. These decisions can carry life-and-death consequences for those seeking refuge.

I asked the chairperson of the Immigration and Refugee Board, IRB, whether they were concerned about the move toward the PRRA process. She explained that, right now, the IRB gives full oral hearings and issues extensive reasons for the decisions they make. Under Bill C-12, a fairly significant portion of cases will be put in front of the PRRA without the benefit of that information. As she said, “Whether that creates a Charter challenge will likely be argued in court, and we’ll find out.”

While I am concerned about constitutionality, the government has insisted the bill is constitutionally sound. I have a far simpler policy question I want to get on the record: Why are we diverting cases away from the IRB?

Some have suggested that these measures are necessary because the IRB wait times are too long. But diverting claims away from the board does not solve the underlying problem; it simply shifts the burden elsewhere.

The committee heard that there will be additional PRRA officers hired and that they will be well trained. As a former mental health therapist, I am trying to figure out what training they will receive that could possibly replace face-to-face interventions, where emotional reactions can be far better assessed and accounted for.

The committee was unable to get information related to hiring additional IRB officers to deal with the backlog versus hiring additional PRRA officers, so it is unknown whether this proposed system will be more efficient or accurate in its decision.

The committee also heard that a judicial review of PRRA decisions “. . . would likely increase the backlogs . . .” at the Federal Court. In other words, cases may simply reappear later in the system in a different form.

Several stakeholders argued that a more effective approach would be to strengthen the system we already have. Bellissimo Law Group recommended expanding the adjudicative capacity of the Immigration an​d Refugee Board of Canada, or IRB, so that it can address backlogs without sacrificing fairness.

Canada already has a credible refugee determination system. The challenge is to ensure that it has the resources necessary to do its work. But, colleagues, as a senator, I believe it is beyond the scope of work to amend the legislation before us simply because I may disagree with the policy’s intent. This is a disagreement that reasonable folks can have, and I will defer to the elected House on that matter, having put my concerns on the record.

However, the amendment before us addresses something different than a policy disagreement. The amendment Senator Woo is proposing addresses the fair treatment of minority groups in Canada and this legislation’s compliance with the Charter. It does this by guaranteeing an oral hearing for folks who end up in the new ineligibility streams created by Bill C-12.

This amendment responds directly to concerns about the constitutionality of this legislation raised by the Canadian Bar Association, the Canadian Association of Refugee Lawyers, the David Asper Centre for Constitutional Rights at U of T, the Canadian Muslim Lawyers Association and front-line clinics such as Community Legal Services of Ottawa. It aligns this bill with Canadian jurisprudence, and it responds to concerns we heard clearly from representatives on behalf of the United Nations Human Rights Council, or UNHRC, who said that the oral hearing requirement must be added to the legislation to ensure that Canada respects its international obligations and that asylum seekers have a right to be heard.

I support Senator Woo’s amendment because it addresses both of those concerns. It is, in my view, a targeted amendment focused on issues that are central to our role as senators. Furthermore, as you have already heard tonight, my understanding is that it aligns with a similar amendment that, again, as we’ve heard, Liberal MPs made to their government’s bill for the very same reasons in 2019 when similar ineligibility provisions were introduced in Bill C-97.

Put another way, I’m adding a little water to my wine tonight and doing my best to respond to voices in my region. I heard directly from Ali Abukar, chair of the Saskatchewan Association of Immigrant Settlement and Integration Agencies. He asked us to restore access to independent hearings by ensuring that all asylum seekers, regardless of their mode or timing of entry, have the right to a full oral hearing before the Immigration and Refugee Board.

While I am ultimately accepting the government’s policy decision to move away from the IRB process, I will support this amendment that requires officials of the Immigration, Refugees and Citizenship Canada, or IRCC, to conduct an oral hearing and to make an assessment by looking people in the eyes, as it is a targeted improvement to protect minorities and secure Charter rights.

I want to leave you with the words of Harjit Kaur, executive director of the Vancouver & Lower Mainland Multicultural Family Support Services Society:

The bill is framed as a measure to curb fraud and protect the integrity of the immigration system. However, when these measures disproportionately and severely impact those who are most vulnerable, it is difficult to see how the integrity of the system is being strengthened . . . . Protecting system integrity and protecting victims should not be mutually exclusive goals.

Thank you. Meegwetch. Marsee.

Are senators ready for the question?

Is it your pleasure, honourable senators, to adopt the motion, in amendment?

All those in favour of the motion will please say “yea.”

Some Hon. Senators: Yea.

The Hon. the Speaker pro tempore: All those opposed to the motion will please say “nay.”

Some Hon. Senators: Nay.

The Hon. the Speaker pro tempore: In my opinion the “nays” have it.

Do we have an agreement on the bell?

Fifteen minutes. Is leave granted?

The vote will take place at 6:15 p.m. Call in the senators.