Debates of the Senate (Hansard)
1st Session, 41st Parliament,
Volume 148, Issue 96
Friday, June 22, 2012
The Honourable Noël A. Kinsella, Speaker
Immigration and Refugee Protection Act
Balanced Refugee Reform Act
Marine Transportation Security Act
Department of Citizenship and Immigration Act
Bill to Amend—Third Reading
Hon. Mobina S. B. Jaffer: Honourable senators, I rise to speak at third reading of the ominous bill, Bill C-31, which is an act that will deal, first, with our refugee system; second, human smuggling; and third, biometrics. Before I proceed, I would like to thank Senator Ogilvie and the members of the Standing Senate Committee on Social Affairs, Science and Technology for the work they did on this bill.
Senator Ogilvie set a tone for the manner in which this bill was studied. I understand that we all have different experiences in life, but in the Senate we do not bring our partisan views to committee to such an extent that we become disrespectful of each other. I thank Senator Ogilvie for his leadership.
I also want to thank the Honourable Senator Martin, another British Columbian, for the way she helped me understand this bill and the way we worked together. I commend her for the tone that she also set in committee. Thank you. I also want to take the opportunity to thank Kevin Lamoureux, the immigration critic, Member of Parliament for Winnipeg North, for all the help he gave to me to prepare for this bill.
As I stated during the speech I delivered at second reading, Bill C-31 raises many questions and will really change the lives of people who flee to our country, particularly in the way we process asylum claims. Once this bill is passed, there will be a three-tier system for refugee claimants applying for asylum in Canada: first, the present system; second, the designated country of origin or the safe country option, often referred to as the “Roma option”; and third, the designated foreign national, which is widely known as the “Tamil boat option.”
As a refugee to this country, I will be the first to state that our country must have a fair, consistent and efficient refugee system. I want the refugee system to have integrity, because I never want the door to be slammed in the face of deserving refugees, refugees who need Canada’s help when they are fleeing persecution.
This bill represents our government’s attempt at protecting the integrity of Canada’s immigration system by helping to ensure that it is fair, consistent and efficient. Unfortunately, this bill fails to meet each and every one of those objectives. Not only does it fail to strengthen our current immigration system, it also contains provisions that are unconstitutional and that are in direct contradiction with Canada’s international obligations.
Although there are several very troubling components to this bill today, I will focus on a few that I believe demand our attention. I will begin by setting out several provisions of the bill that are unconstitutional. Then, I will discuss biometrics. Third, I will examine the designated country of origin, what is known as the “Roma option.” Then I will examine the designated foreign national option, also referred to as the “Tamil boat option.” I will conclude by discussing the effect this bill will have on children fleeing persecution.
I will discuss how Bill C-31 is unconstitutional. Honourable senators, the Canadian Civil Liberties Association is concerned that if Bill C-31 is passed and implemented, it will violate several of Canada’s constitutional and international obligations. This would come at a great cost to Canada and Canadians, both ethically and financially. As I stated at second reading, the Supreme Court of Canada, by way of what is referred to now as the Singhdecision, has determined that the Charter of Rights and Freedoms is applicable to refugee claimants. Bill C-31 is in contradiction with the Singh decision as it does not guarantee refugee claimants rights granted by the Charter of Rights and Freedoms.
To give you a few examples, section 7 of the Charter states that everyone has a right to life, liberty and security of the person. However, Bill C-31 denies reunification of families for a period of five years, which clearly violates security of the person. In addition, this bill can also lead to increased detention periods, thus violating one’s right to liberty.
Section 9 of the Charter states that individuals have the right not to be arbitrarily detained. However, Bill C-31 imposes a detention period without review until the expiration of six months. Further, the minister is not held accountable for long detentions.
Bill C-31 also violates international law. The 1951 Refugee Convention and the Charter are the anchors of our refugee system. Article 31(1) of the 1951 convention specifically states that no country will impose penalties on account of illegal entries of refugees. This article was included in the treaty specifically because it was understood that people seeking refuge could be in breach of immigration law. Honourable senators, Bill C-31 also treats refugees as criminals rather than as victims.
International law recognizes that refugees often have no choice but to enter a country of asylum illegally. The refugee convention, therefore, prohibits governments from penalizing refugees who enter or remain illegally in their territory. For a refugee, false documentation may be the only way for an individual to flee persecution in their country. Canada recognizes this in section 133 of its current Immigration and Refugee Protection Act. Bill C-31 would allow the minister to deem a group an irregular arrival if the identity of the individuals in the group cannot be determined in a timely manner, or if there is suspicion of human smuggling or criminal activity. The fact that refugees may have false documents makes them more prone and vulnerable to being declared a designated foreign national because such documents could impede the minister’s ability to identify an individual in a timely manner.
Therefore, Bill C-31 has the potential to treat individuals who are seeking asylum or refuge as criminals rather than as victims. More specifically, inclusion of provisions discussing irregular arrivals state that children 16 years of age or older can be detained and that children under 16 years of age can be separated from their families without any obligation of the federal government to appropriately justify this detention. This is not only unconstitutional, but it is also in direct contradiction of Canada’s international obligations.
The minister’s ability to designate groups as irregular arrivals puts at risk those who are genuinely seeking refuge. Under this legislation, a refugee may be identified as being part of an irregular arrival and thus be deemed a designated foreign national. The minister can designate an arrival irregular based on one of the two criteria: if an individual is found to be with a group, that is, two or more individuals, that includes persons whose identities cannot be established in a timely manner or if the minister has reasonable grounds to suspect that the vessel in which they arrived is engaged in human smuggling or criminal activity.
As a result, genuine refugees could be subjected to harsh penalties that are imposed on designated foreign nationals. In this sense, designation is not based only on the context of alleged smuggling but also on the absence of sufficient bureaucratic resources to process arrivals. In addition, only the Minister of Public Safety can make this designation, and it is not subject to parliamentary oversight, nor is it possible for the claimant to appeal such a designation.
Unfortunately, an individual who is identified as a designated foreign national, even if the individual is eventually found to be a genuine refugee, include: mandatory detention of up to six months, the inability to apply for permanent residence for five years after they have been found to be a refugee, and being prohibited from sponsoring family members for five years after the individual has been found to be a refugee.
The 1951 Refugee Convention clearly states that we are obliged to facilitate the naturalization of refugees. Honourable senators, by imposing a five-year delay before a designated foreign national found to be a convention refugee can apply for permanent residence, Bill C-31 violates Article 34 of the 1951 Refugee Convention.
Honourable senators, there is a legitimate case to be made about implementing biometrics, and I agree with that part of the bill, so that people who enter our country and are deported from our country do not re-enter. We know countries all over the world are implementing biometrics, but we need to ensure that the privacy rights of refugees are protected because there can be dire consequences in the event this information is released to other countries. We know that no system is foolproof, as we saw with the problems with the HRDC job bank when privacy rights were breached. The Privacy Commissioner is investigating that matter. Also, the Privacy Commissioner of Canada recommends the use of biometrics to verify rather than identify individuals to safeguard privacy.
Mr. Peter Showler, a professor at the University of Ottawa, who had been the chairman of the Immigration and Refugee Board stated to our committee:
It is an incredibly complex problem. People use biometrics as though there were a magic solution. Remember that biometrics is also fingerprints and photographs and all kinds of other things. In my recommendation to the Commons committee, I recommended that they had to look at it from the point of information security. The great challenge is the inadvertent sharing of information with international partners who have very different objectives and, quite possibly, very different human rights records than we do.
Honourable senators, Bill C-31 includes a safe country provision which gives the minister the discretion to create a list of countries that are unlikely to produce refugees. This means that claimants from those countries would be dealt with quicker. However, they would not be allowed to appeal, thus increasing the likelihood of genuine asylum seekers being deported. The unfortunate reality is that gender-based persecution occurs even in countries deemed to be safe. Under this bill, if a woman faces gender-based persecution but comes from a country that the minister has designated to be a safe country, her claim could be denied.
Peter Showler stated the following:
One of the problems with safe countries — and I mentioned the fact that safe countries are not always safe — is that, frequently, the persecutor in those countries is not the state. Often, though not always, it tends to engage gender issues. When I said that DCO claims can be onerous to prove, they are the types of claimants that are not even particularly good at bringing those kinds of claims forward. They certainly need as much time as anyone else.
Honourable senators, I am pleased to report that our committee included observations relating to this matter. These are observations in regard to clause 58 of Bill C-31, which will add section 109.1 to the Immigration and Refugee Protection Act.
The committee emphasizes the importance that the gender guidelines issued by the Immigration and Refugee Board of Canada continue to be applied to refugee claims from designated countries of origin.
The committee encourages the Immigration and Refugee Board of Canada to develop guidelines related to the LGBT communities.
The committee encourages the minister and the Immigration and Refugee Board of Canada to take into consideration the special situation of minorities within the country of origin.
Based on the convention, the definition of a refugee does not include gender as an independent enumerated ground for a well-founded fear of persecution warranting the recognition of convention refugee status. Many of us worked very hard to develop gender guidelines so that the Immigration and Refugee Board could take gender-based persecution into account.
Most of the gender-specific claims involving fear of persecution for transgressing religious or social norms may be determined on grounds of religion or political opinion. In a case, the Immigration and Refugee Board found that the claimant was a convention refugee. The claimant’s fear was of the violent behaviour of her husband condoned by that society, the traditional rituals which include the searing of her body with a heated instrument and continuing domination and demands causing her to be enslaved.
Ms. Chris Morrissey, the co-founder of Rainbow Refugee Society, appeared as a witness at committee and also encouraged the Immigration and Refugee Board to develop guidelines for gay and lesbian people who face great persecution in countries, reminding the committee that these individuals may be facing this type of persecution in countries that are designated as being safe countries.
During our committee meetings, we had the pleasure of hearing from Ms. Gina Csanyi-Robah, a member of the Canadian Council for Refugees, who gave us a compelling story about the Roma people, who are associated with this provision of Bill C-31 as they flee from a country that is designated to be safe, Hungary.
I would like to take a minute to share with you a story she submitted to me as she wanted me to share with senators the plight Romani people face. I quote:
Roma refugees arrive en masse without any support available to them. The vast majority of Canadians do not even know who the Roma community is unless we identify ourselves as Gypsies, a name that was applied to us during the medieval time period in Europe when we were mistaken as Egyptians by the British Empire.
Many people are horrified to learn about the treatment that we have endured as a people for the past millennium in Europe: mass killings, extreme and cruel marginalization from society and enslavement for 500 years until 1863 when the last Romani slaves were emancipated in Romania. This ugly history also includes the loss of nearly two million lives in forced labour work camps prior to and during World War II, as well as victims of genocide during the Holocaust. We have for the most part been left out of the history books. We are a people uncounted.
The Roma are still wasting away in refugee camps created in Kosovo by the UN in 1995. They have nowhere to go, and it is still unsafe for them to return.
Currently, in countries such as Hungary, Slovakia and the Czech Republic, there is an endemic discrimination that many international human rights bodies have described as apartheid-like conditions. More fatal is the war of hatred killing the Roma — mentally, physically, emotionally — children’s spirits are being crushed at the hands of a portion of the ethnic majority population in these countries.
For the past two years I have been trying to share with the Canadian government what is taking place in Hungary and why Romani people are seeking refuge in Canada.
Since 2008, there have been approximately 30,000 individuals — men, women, children, elderly — who came believing that they had arrived in a mecca for human rights. They sold everything that they owned. They arrived in large, intact familial groups, as is customary in the culture. They have filled our shelters and schools. They have been relying on food banks, as many other Canadians do who have to rely on welfare to survive. Like Canadians, they too suffer from a mass shortage of family doctors available and often need to wait six months for an appointment. They too have criminals among them, as every other community in Canada does.
Unlike Canadians, 30,000 refugees have been stereotyped as criminals at times and as the victims of criminals.
The Roma community in Canada and countless Canadians do not want to see the creation of a designated safe country list and hope Romani people fleeing Europe will continue to enjoy the same opportunities granted to refugees from other parts of the world.
With respect to designated foreign nationals, honourable senators, under Bill C-31, the minister may designate the arrival of a group of persons to Canada as “irregular,” or what is now called “mass arrival,” if the minister is of the opinion that examinations particularly relating to identity and admissibility of the persons involved in the arrival and other investigations cannot be conducted in a timely manner.
If a person is found to be a convention refugee, they will be denied two very important rights. One, they will not be able to apply for permanent residence for five years, and two, they will not be able to sponsor their spouse and children for five years.
This is a punitive action, and I cannot begin to imagine why we would do this to a person who is found to be a refugee by the Immigration and Refugee Board. This breaks all of our international conventions. In fact, to me, this is an example of cruel and unusual punishment. I am very confident that the courts will not accept us treating individuals whom the Immigration and Refugee Board has deemed as refugees in such a horrific and uncompassionate fashion.
Honourable senators, this is simply unjust. We in the Senate, who are supposed to protect the rights of minorities, should not accept this punitive clause.
Let me put into context what this clause would mean for a refugee.
If a person is designated by the minister, they will be placed in mandatory detention for a minimum of two weeks, which most often turns out to be six months or more. The refugee claim will be assessed while that individual is in detention.
If the claim is not accepted, there will be no appeal for the claimant. If the claim is accepted, the refugee cannot apply for permanent residence for five years. The refugee will not be provided a travel document for five years, nor will they be able to bring their children or spouse here for a period of five years. For a refugee who has already lost everything to then be separated from family for a minimum of five years is unthinkable.
Honourable senators, earlier I stated that there is often an event that triggers a government to change their laws. In this case, it was a boat of Tamils who found their way onto the shores of British Columbia roughly two years ago.
I have to tell you that I am very confused as to why these desperate people are being painted as villains when our own Prime Minister has recognized their pain and suffering and has as a result made a decision not to attend the Commonwealth Conference because of the human rights abuses in Sri Lanka.
Let me be more specific. During my career, I have come to know many Sri Lankans. As a lawyer, I have for years represented the Sinhala, Muslims, Burghers and Tamils. I can tell you that all groups in Sri Lanka have suffered terrible human rights abuses. I believe that this is precisely why our Prime Minister, Stephen Harper, has taken a principled stand in not attending the Commonwealth Conference. There are severe human rights abuses against the people of Sri Lanka, and Prime Minister Harper, by refusing to attend the conference, is showing the world that Canada does not condone such behaviour.
Honourable senators, as the envoy for women in conflict zones, I travelled to Colombo and I went to many parts of Sri Lanka. I can tell you that the situation for all Sri Lankans is very desperate.
When I was appointed to the Senate, I became the envoy for women in conflict zones. I travelled across the country speaking to women across Canada who are part of the Sri Lankan diaspora. In our report entitled Ripples Across the Ocean, the unfortunate plight of Sri Lankan women was highlighted both here in Canada and in Sri Lanka.
Honourable senators, last December I was in different parts of Sri Lanka. I met with many people who had suffered terribly during the civil strife. Often it was hard to hear the people speak of their pain. I often watched my friend Visaka Dharmadasa and listened with a heavy heart as he she shared her story. I have travelled with Visaka to many parts of the world as we worked to help women mobilize in conflict zones.
Years ago, one of Visaka’s sons, who was in the army, went missing. After suffering such a terrible loss, Visaka started an organization for war-affected women, which allows her to reach out to women who have suffered a similar fate.
I admire Visaka for mobilizing Tamil, Sinhalese, Burgher and Muslim women and bringing them together for a common cause. Visaka showed these women that, regardless of their differences, they all had one important thing in common: They were mothers. Slowly, these women helped each other heal from their losses, which in turn helped bring entire communities together. I am pleased to tell you that Canada and the Canadian government has been very much a part of the healing process of Sri Lankan women in Sri Lanka.
There are many heroes like Visaka who are working hard to bring peace to Sri Lanka. However, still there is a lot of work that needs to be done, and the conditions in Sri Lanka are still dire.
From one corner to another, I saw desperate people in Sri Lanka trying to keep their families together. I met many women who told me heartbreaking stories of how they had lost family members and everything they owned. What do you say to a woman who is destitute, has lost all her children, all her assets and is trying to survive in a new and foreign area, not knowing what tomorrow has in store? Many of these women were hoping to seek refuge simply to ensure that their children stayed alive and free from conflict and violence.
Although I am very pleased that the Prime Minister is taking such a principled stand and has decided that he may not attend the Commonwealth Conference in Colombo, how are we treating the Sri Lankans that are arriving on our shores? We have seen ministers get on the boats and call them terrorists.
Honourable senators, I am really confused. Are these abuses of human rights or are they not? I am disappointed that we are introducing a law that will turn away these desperate individuals when they come to our shores seeking refuge. In fact, even when they are found to be convention refugees, we will not provide them with travel documents. We will not let them be permanent residents for five years, and we will not let them sponsor their children for five years, which is likely to be eight years.
Honourable senators, does this really sound like a refugee system that Canadians can be proud of? I am ashamed.
Honourable senators, I would like to conclude my speech by discussing the provisions which I am most concerned about. I find the impact that this piece of legislation will have on children to be exceptionally troubling. We cannot accept that a child who has fled his country because he was being persecuted should face imprisonment in our country.
Under the provisions of Bill C-31 that discuss “irregular arrivals,” children who are 16 and 17 years of age, who would under this bill face mandatory detention, will also be separated from their families as facilities are segregated by gender, meaning that a child would be unable to be accompanied by both parents. This is in direct contradiction of section 9(1) of the UN Convention on the Rights of the Child, which discusses forced separation when stating:
States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of a child by the parents . . .
Honourable senators, we must remain mindful that when dealing with children it is our responsibility to always protect their best interests. In the event that this bill is passed, children who are 16 and 17 years of age would be unjustly placed in jail-like detention centres where they will experience a heightened risk of suffering from several mental and behavioural health issues, not to mention the emotional distress of being in a new country, separated from their loved ones.
In fact, both the United Kingdom and Australia, whose policies we are now following, implemented policies similar to the ones we are debating today. However, both Australia and the United Kingdom later rescinded these policies as they realized the detrimental affects they had on children who were desperately seeking asylum. Having proof policies of this nature are clearly harmful to children, we must ensure that we learn from the mistakes of other nations and do not neglect to properly assess the impact these provisions will have on children.
Honourable senators, I would like to take this opportunity to draw your attention to a model adopted by France — one that I believe Canada could learn a great deal from.
Some supporters of this bill have referred to other Western democracies, particularly Australia, that have adopted immigration reforms similar to those in the bill.
Yes, it is important to note best practices from other countries that are dealing with the same public policy issues. However, these supporters only mentioned countries whose failed policies resulted in the denial of refugees’ basic human rights. There is absolutely no reason to limit our comparative analysis of policies to the study of just one country, like Australia, for instance.
I would argue, honourable senators, that there are better solutions, better thought-out policies that Canada might want to consider. In my opinion, these options must strike a balance between the need for creative solutions that will make our immigration system effective and our moral obligation to promote the universal implementation of human rights. This moral obligation is particularly important when it comes to children’s rights.
I would like to draw the attention of this honourable chamber to France’s approach regarding refugee children. I would like to refer in particular, honourable senators, to a report from May 2010 prepared by French senator Isabelle Debré dealing with “isolated” or unaccompanied foreign minors in France.
In the introduction of her report, prepared at the request of French Prime Minister François Fillon, the senator writes, and I quote:
Clearly, our reflections must be guided first and foremost by the human dimension of the phenomenon, particularly since France has ratified the Convention on the Rights of the Child [. . .]
As you know, honourable senators, Canada has also ratified the Convention on the Rights of the Child. More countries have ratified that Convention than any other human rights treaty in history. Some 193 countries are party to that Convention.
Therefore, Canada has not only a moral obligation to respect children’s rights, but also an international legal obligation.
The French proposal recognized the need for universal respect for children’s rights, and it represents the most instructive, useful and credible example.
Please allow me to share some of the main recommendations made by Senator Debré that I believe should also have been considered when the government drafted this bill.
The recommendations made by Senator Debré focus on two main objectives, and I quote:
To coordinate actions related to non-national unaccompanied minors in accordance with the interdepartmental plan implemented at the local level, and
To make meaningful improvements to the conditions for receiving, returning and (or) taking responsibility for non-national unaccompanied minors.
Similarly, Canada must first ensure that there is a comprehensive, coordinated approach to address issues related to non-national unaccompanied minors. It must also work to ensure that there are better conditions for non-national unaccompanied minors.
Honourable senators, these are not optional requirements. These are obligations to which Canada committed under the most widely ratified human rights treaty in the world. I am not talking about ideological preferences or the debate on public spending priorities. We absolutely must protect children’s rights.
The recommendations in the French report include:
Create a space reserved exclusively for minors in waiting areas and detention centres;
Develop measures to more reliably determine the minor’s age;
Provide a stay document, once they reach the age of majority, to non-national unaccompanied minors older than 16 years of age who are taken in by child welfare agencies, provided that they are receiving formal education or training and have a life plan.
Establish observation and statistical methods to provide data to a centralized, interdepartmental platform and entrusted to the Protection judiciaire de la jeunesse [French juvenile protection service];
Develop national training for temporary administrators that could be carried out by the École nationale de protection judiciaire de la jeunesse [French national juvenile protection service school], in connection with experienced associations.
Honourable senators, these measures were all designed to preserve the efficiency of the immigration system, while at the same time ensuring a cooperative and global approach to protecting the rights of foreign unaccompanied minors.
There is no apparent reason why similar measures cannot and should not be implemented in Canada. In addition, Bill C-31 does not treat 16-year-old children as minors; the bill directly violates our country’s obligations under the Convention on the Rights of the Child.
Canada’s immigration system should be improved, but not at the expense of children’s rights.
Honourable senators, I would like to leave you with an example which will put into perspective the impact that this bill will have.
Under Bill C-31, if a 16-year-old Somalian boy arrives on Canadian shores, we will detain him for six months. Then, if he is found to be a refugee, we will force him to wait five years before he can apply for permanent residency or be reunited with his family. We will also deny him essential medicine. Does this sound like a system that Canadians can be proud of? Canada is a signatory to the United Nations Convention on the Rights of the Child and has thereby made a commitment to always ensure that civil, political, economic, social, health and cultural rights are protected.
Now we as a country have an obligation to honour that commitment and do everything we can to protect the world’s most vulnerable population: its children.
The UN Convention on the Rights of the Child quite clearly states that a child is defined as every human being under the age of 18. The fact that this bill calls for an unwarranted detention and arrest of any individual, let alone a child who is 16 or 17 years of age, is incredibly troubling. I strongly urge all honourable senators to revisit these provisions and adopt the definition of a child that reflects the one set out in the UN Convention on the Rights of the Child, adjusting the age requirements from 16 to 18 years. In its present form, Bill C-31 violates Article 37(b) of the United Nations Convention on the Rights of the Child, which states:
No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.
It is of utmost importance that the provisions of Bill C-31 that call for the detainment of children aged 16 and 17 be amended. By adjusting the age by two years, we would be ensuring that children are not unfairly targeted by this bill. I would now like to bring forward an amendment which will do just this.
Motion in Amendment
Hon. Mobina S. B. Jaffer: Therefore, honourable senators, I move:
That Bill C-31 be not now read a third time but that it be amended
(a) in clause 23,
(i) on page 12, by replacing line 39 with the following:
“and who is 18 years of age or older on the day”, and
(ii) on page 13, by replacing line 3 with the following:
“who was 18 years of age or older on the day”;
(b) in clause 24, on page 13, by replacing line 11 with the following:
“Division and who was 18 years of age or older”;
(c) in clause 25, on page 13, by replacing line 27 with the following:
“was 18 years of age or older on the day of the”;
(d) in clause 26, on page 14,
(i) by replacing line 9 with the following:
“designated foreign national who was 18 years”,
(ii) by replacing line 20 with the following:
“designated foreign national and who was 18”, and
(iii) by replacing line 37 with the following:
“18 years of age or older on the day of the arrival”;
(e) in clause 27, on page 15,
(i) by replacing line 2 with the following:
“designated foreign national who was 18 years of”, and
(ii) by replacing line 10 with the following:
“foreign national who was 18 years of age or”; and
(f) in clause 28, on page 15, by replacing line 32 with the following:
“who was 18 years of age or older on the day”.
Thank you very much.