Strengthening Canada's Immigration System and Borders Bill

Honourable senators, I have to tell you that this is the most frightening speech I have ever given in the Senate because it requires me to say the words “pre-removal risk assessment” over and over again. I will not say “PRRA.” I will say “pre-removal risk assessment” because I think that we need to understand what we’re talking about here.

This is the challenge presented by this particular piece of legislation: We are told that there is a backlog, there are inefficiencies in the refugee system and there are 300,000 people waiting. Instead of hiring more people to clear that backlog, we will try to make fewer people eligible to get in the line.

We are also told there are risks to public safety and public security if people who are bad actors are applying for refugee status under false pretenses. As I understand it, part of the raison d’être of this bill is to increase efficiency and improve public safety. The argument is that if you deny people access to a full hearing before the Immigration and Refugee Board of Canada, or IRB, and simply do a paper assessment, you will speed things up and make sure there are fewer people who slip through the cracks.

Intuitively — we were using that word earlier — that may make sense. But when you look at the actual data, you will find something quite different.

Senator Woo alluded to a report recently completed in January of this year by the C.D. Howe Institute. The C.D. Howe Institute is not one of the usual suspects who testified before the Standing Senate Committee on Social Affairs, Science and Technology. The C.D. Howe Institute is a centre-right think tank not necessarily renowned for its wild, progressive views.

This report was completed by a lawyer named James Yousif, who is the former director of policy at Immigration, Refugees and Citizenship Canada and a former member of the IRB, and he has deep expertise in immigration law. What he was actually looking at was a pilot project that the IRB had been running to see if paper reviews could speed things up. I will quote a little bit from his report:

Since 2019, the Immigration and Refugee Board of Canada (IRB) has accepted tens of thousands of asylum claims without an oral hearing through its “File Review” policy, using a paper-based process that may exempt entire categories of claims, defined by nationality and claim type, from the default requirement of in-person adjudication. . . .

Although introduced as an efficiency measure to accelerate decision-making and reduce the asylum claims backlog, File Review has not achieved this goal. Between 2016 and 2024, annual claim finalizations rose substantially . . . . However, intake continued to exceed capacity, and the pending claims backlog grew dramatically to nearly 300,000, as Canada’s overall asylum acceptance rate rose to roughly 80 percent . . . double that of peer jurisdictions.

Part of the challenge of paper review, of course, is that people who are writing these papers may not have access to a lawyer, or they may not speak or be able to write in English. The paper can be a bit of a mess. But it is not just that.

Think about this intuitively, if you like: If someone comes before you and does an interview, you may be much more able to determine whether they look shifty or whether their story holds up. If you can ask questions and not just look at what is written on a piece of paper, you could get a more thorough understanding of just how valid their claim is. I would put it to you that by defaulting to paper review, we may actually be letting in people who are precisely the ones we want to keep out.

In the words of Mr. Yousif:

The policy raises significant concerns about adjudicative integrity, national security, and legal authority. By potentially dispensing with hearings, File Review may have undermined the integrity of the system by removing in‑person questioning that tests credibility, detects fraud, and fulfills statutory security screening functions. . . .

Having piloted this, we already know it doesn’t work. Why would we want to adopt it on an even larger scale?

The other issue flagged by Mr. Yousif — and this comes up especially in the kind of pre-removal risk assessment process that Bill C-12 envisions — and what we’ve been told by Senator Dean and other proponents of this bill is in a scenario, for example, where somebody has come to this country as a student and war has broken out in their country, then they are more likely to get a generous hearing in a pre-removal risk assessment because there will be a default understanding that the country to which they are returning is unsafe.

Mr. Yousif argues that this is precisely why you are increasing the degree of risk. Let me quote again from his analysis:

The key issue is that the countries that can be expedited from [a] . . . point of view [of having a] (high acceptance rate for refugees often due to conflict) are also countries that represent the highest concerns in terms of the serious inadmissibilities and . . . exclusions for the Public Safety Portfolio.

This is a crucial observation. File Review expedites claims from countries with the highest rates of acceptance. Countries with conditions that result in the highest rates of acceptance for asylum claims are, as a result of those same conditions, among the most dangerous countries in the world.

I remember — defaulting again to my days as a journalist — covering the case of a man who had claimed asylum with his family and was hiding in a church basement. The problem was that he came from a Latin American country that had death squads, and he said he was afraid of the death squads, the problem being that he had been a member of a death squad. So when you give a fast track to people from the countries that are the most chaotic, you may, in fact, be fast-tracking precisely the people we’re trying to keep out. That, as I say, was the analysis of Mr. Yousif from the C.D. Howe Institute.

I’m also persuaded by the analysis of Dr. Nicholas A.R. Fraser, a research associate with the Global Migration Lab at the Munk School of Global Affairs and Public Policy at the University of Toronto. He also did his own independent analysis of paper-based claims, and I will quote again from some of Dr. Fraser’s work.

. . . empirical analysis of approximately 180,000 first-instance refugee applications adjudicated in Canada shows that rights-restrictive measures consistently fail to reduce the volume of withdrawn or abandoned . . . claims. Conversely, the data identifies a positive link between procedural rights and efficiency, where access to competent legal counsel serves as a vital lubricant for the system. . . .

Anyone who has had experience in our courts these days, whether you’ve been a lawyer, a judge or a litigant, knows that one of the things that is bogging down our court system in Canada is the problem of self-represented litigants, who are often vexatious litigants. Again, if you have people self-representing, even on paper, you are more likely to run into problems than if you have people who have proper legal counsel.

Dr. Fraser also found that:

Shifting . . . claimants from the IRB to the Pre-Removal Risk Assessment . . . does not eliminate the burden; it moves it to a federal bureaucracy lacking the IRB’s specialized expertise. Negative PRRA decisions and mass ministerial cancellations in the “public interest” are high-frequency sources of litigation that command significant judicial resources in the Federal Court.

This is because of what Dr. Fraser calls “procedural drag.” He says:

Policies that restrict procedural access do not speed up the system; they trigger an 11% increase in the time/cost required to resolve a file due to unrepresented claimants. . . .

Implication:

The proposed measures in Bill C-12 . . . will likely create a positive feedback loop of inefficiency, resulting in higher costs per file and a growing, rather than shrinking, backlog.

Now, many of the arguments that we have made — that I have made — have been appeals to the angels of your better nature, appeals for you to think nobly and with an open heart about the value of providing refuge for people in need.

I ask you now to put on your perhaps slightly more cynical, critical thinking caps and to see that moving to a system largely based on paper review — pre-removal risk assessment — may, on the basis of the expert evidence and the data, actually lead to greater inefficiencies and more admission of people who really ought not to be here.

The goal everyone in this room ought to share is to have a refugee system that is efficient and that keeps Canada safe by welcoming the most deserving and keeping out the people who will be the highest risk going forward.

I put it to you that a pre-removal risk assessment based on paper actually accomplishes neither of those goals. So I invite you to support Senator Woo’s thoughtful amendment, first, because I believe that it fixes a constitutionality problem that the Singh decision points to; second, because I think that it will be fairer for refugee claimants with bona fide claims; third, because I also think that reverting to a pre-removal risk assessment process based on paper review could add more inefficiencies, increase the backlog and procedural drag and actually limit our ability to ask the tough, probing questions that would pick out the people who are, in fact, the bad actors, the people we don’t want to have here, the people who do not deserve our hospitality and our welcome and the people who could present a risk to us for decades to come. Thank you very much.