Debates of the Senate (Hansard)
1st Session, 41st Parliament,
Volume 148, Issue 90
Wednesday, June 13, 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—Second Reading
Hon. Mobina S. B. Jaffer: Honourable senators, I rise before you to speak, at second reading, on omnibus Bill C-31, which is an act that will deal with, first, our refugee system, second, human smuggling and, third, biometrics. Bill C-31 raises many questions, and I cannot do justice to all of them.
I hope that we can study the various aspects of the bill more carefully in committee.
Honourable senators, exactly 40 years ago this year, my family and I became homeless. We lost all of our possessions and the right to live in our country. The world came to the rescue of Ugandan Asians. The United States, Europe, Australia and Canada came to our aid. In fact, Denmark went the extra mile. They offered to give asylum to all people suffering from disabilities. Ugandan Asians were very lucky. Today, I want to take this opportunity to thank all of the countries, especially Canada, for granting us asylum. Thank you very much for giving us asylum and helping us to become a part of your countries. You came to our rescue, when our own country abandoned us, by welcoming us into yours.
I often think of what would have happened to my family if we had not been granted asylum. I can tell you that, from what we were being told by Idi Amin Dada, we would have suffered a terrible fate if we had not been given asylum.
My greatest fear is that one day Canadians, who are very fair-minded people, will close their door to refugees if they feel that the refugee system is being abused. Therefore, I will be the first one to state that there must be a fair, consistent, efficient system in our country. I want the refugee system to have integrity as 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. Bill C-31 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 these objectives. Not only does it fail to strengthen our current immigration system but it also contains provisions that are unconstitutional and that directly contradict Canada’s international obligations.
In summary, this bill will authorize the minister to designate as an irregular arrival the arrival of a group of persons and to provide for the designation of a foreign national in relation to detention, applications of permanent resident status and limit sponsorship of families.
This bill will completely change the way we process our refugees.
Honourable senators, today there are about 15 million refugees around the world. In 2010, the UNHCR issued 108,000 applications for refugee settlement. Of those, 100,000 were resettled, and 12,000 of those came to Canada. Resettled refugees represent 0.1 per cent of the world’s refugees. The average waiting time in camps is 17 years.
I want to highly commend Minister Kenney for increasing, by 20 per cent, the number of resettled refugees. I have always advocated that we need to accept more refugees who have been identified in camps as refugees.
Minister Kenney stated:
I am pleased to say our government is increasing by 20% the number of resettled refugees, UN convention refugees who are living in camps in deplorable circumstances around the world. We will now accept them and give them a new life and a new beginning here in Canada. We are also increasing by some 20% the refugee assistance program to assist with the initial integration costs of government assisted refugees who arrive here.
I also believe that if we increase the number of refugees from camps, we create hope for them, and they do not have to further endanger their lives in finding ways to come to Canada.
Honourable senators, my main concern with this bill is that in the event that it passes, our Canada will become very different. Bill C-31 will change the face of Canada as we know it, tarnishing a reputation that has taken decades to build.
A vote to pass Bill C-31 would be a vote against tolerance, acceptance, compassion and justice, all of which are principles that our great country prides itself on.
A vote to pass Bill C-31 is a vote to create a two-tiered refugee system, one that does not provide all refugee claimants with a fair hearing based on the facts of the individual cases and one that discriminates against refugees based on their old country of origin.
A vote to pass Bill C-31 is a vote in favour of treating refugees who have been victims of torture, abuse, persecution and gender-based violence as criminals, rather than as victims.
A vote to pass Bill C-31 is a vote to pass a piece of legislation that directly violates the Canadian Charter of Rights and Freedoms and directly contradicts a number of Canada’s international obligations.
Finally, a vote to pass Bill C-31 will be a vote in favour of sending 16-year-old children, who have come to our country desperately seeking refuge, to jail-like detention centres for a minimum of six months.
Honourable senators, this is not the Canada that I know. This is not the Canada that 40 years ago welcomed my family when we desperately sought refuge.
Although several aspects of this bill are incredibly troubling, today I will focus on a few things that are of particular concern to me. First, I will set out how several provisions of this bill are unconstitutional. Second, I will proceed to examine the harmful effect that this legislation will have on children. Third, I will discuss how this bill allows for genuine refugees to be treated as criminals rather than as victims. I will conclude by briefly touching upon several other aspects of this bill that will require further review and study; and then I will talk about biometrics.
I remind honourable senators of a landmark decision for Canada’s refugee determination system. Harbhajan Singh claimed refugee status on the basis that he had a well-founded fear of persecution in India. Unfortunately, Mr. Singh was denied status by the Minister of Employment and Immigration on the advice of the Refugee Status Advisory Committee. Mr. Singh challenged the arbitration proceedings under the Immigration Act on the basis that it violated section 7 of the Canadian Charter of Rights and Freedoms and violated section 2(e) of the Canadian Bill of Rights. The government claimed that since he had no status within the country, he was not subject to the charter. The Supreme Court of Canada agreed with Mr. Singh and held that the Charter of Rights and Freedoms was applicable to refugee claimants.
Sadly, Bill C-31 is a contradiction of the Singh decision as it does not provide refugee claimants with the rights that they should be guaranteed under the Charter of Rights and Freedoms. For example, section 7 of the Charter states that everyone has a right to life, liberty and security of the person. However, Bill C-31 can potentially deny genuine refugees access to family, which violates security of the person. In addition, this bill can also lead to increased detention periods, which violates one’s rights 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 and fails to uphold the right as the minister is not held accountable for the prolonged detentions.
Finally, section 10 of the Charter states that an individual is guaranteed the right to prompt review of detention. However, under Bill C-31, if an individual is identified as a designated foreign national, they are detained and eligible for review only after six months, which is in contrast to the Immigration and Refugee Protection Act, which states that foreign nationals should receive a review 48 hours after they have been detained. To be clear, there is a review within 14 days. After 14 days, the next review would be six months later. Unfortunately, under Bill C-31 this definition is not honoured as every individual over the age of 16 years is treated as an adult and, as a consequence, can face unwarranted arrest and detention under this bill. Moreover, Bill C-31 contains several provisions that are incredibly harmful to asylum-seekers and refugees and that unfairly target children and their families.
Honourable senators, does the Canada you know deny constitutional rights to individuals based on the country they emigrate from? Does the Canada you know create laws that directly contradict our international obligations? This is certainly not the Canada I know.
Bill C-31 will give the minister power to impose penalties on designated foreign nationals who arrive as a group, such as mandatory unreviewable detention for six months, including detention of a 16-year-old child. As well, there will be a five-year prohibition on applying for permanent resident status, even if the person has succeeded in becoming a convention refugee, has obtained travel documents, or is recognized as a convention refugee with no possibility of reuniting with family for five years.
There will be no right to appeal a decision to refuse to grant refugee protection. This is contrary to our Charter of Rights and Freedoms, which guarantees the right to life, liberty and security.
Proposed changes to section 31 violate international law. The 1951 Convention Relating to the Status of Refugees 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 refugees on account of illegal entry. This article was included in the treaty specifically because it was understood that people seeking refuge could be in breach of immigration law.
With regard to children, another aspect of Bill C-31 that I find to be exceptionally troubling is the impact that this legislation will have on children. Many people in Canada are not aware that right here in Canada children are routinely held in detention. In December 2008, 61 children were detained, 10 of them unaccompanied as they arrived without a parent. In 2008, a 16-year-old refugee spent 25 days in detention. He suffered a lot in detention and was forced to deal with several physical and emotional challenges. In 2009, a 3-year-old boy was detained with his mother for 30 days. He had difficulty eating and sleeping while in detention. Over 40 children who arrived by boat in B.C. were detained even though they had spent three months on a dangerous journey where they lived in deplorable conditions. They were in detention for over six months.
Children of 16 years will be detained and, as is the current practice, younger children will be either informally detained with one parent or put in state care.
Children in mandatory detention in Australia have developed severe mental illnesses and have attempted suicide. A study in the U.K. has shown that there is great harm caused to children in detention. Both the United Kingdom and Australia have implemented policies very similar to the ones we are debating today. However, both Australia and the United Kingdom later rescinded these policies as they realized the detrimental effects they had on children who were desperately seeking asylum. Having proof that policies of this nature are clearly harmful to children, we must ensure that we learn from the mistakes of other nations and that we do not neglect to properly assess the impact these provisions will have on children.
Honourable senators, Canada is a signatory to the United Nations Convention on the Rights of the Child and has made a commitment to always ensure that civil, political, economic, social, health and cultural rights are protected. As a country, we have an obligation to honour that commitment and do everything we can to protect the world’s most vulnerable population, our children.
The United Nations Convention on the Rights of the Child quite clearly states that a child is defined as every human being under the age of 18.
Honourable senators, the fact that this bill calls for the 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 my honourable colleagues to revisit these provisions and to 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 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 the utmost importance that the provisions of Bill C-31 that call for the detainment of children ages 16 and 17 be amended. By adjusting the age by two years we would ensure that children are not unfairly targeted by this bill.
Honourable senators, we cannot accept that a child who has fled his country because he was being persecuted should face imprisonment in our country. That is absolutely unacceptable.
In addition, under 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 a child would be unable to be accompanied by both parents. This is in direct contradiction of Article 9(1) of the UN Convention of 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 the child by the parents . . .
We must remain mindful that, when dealing with children, it is our responsibility to always protect their 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.
Bill C-31 calls for 16-and 17-year-old children to be detained and forced into a detention centre. Is this the Canada you know? Bill C-31 drives a wedge between families, separating mothers from their sons, fathers from their daughters and brothers from their sisters. Does the Canada you know place this type of burden on families who have already lost everything? Families who have come to Canada in search of safety, protection and opportunity? This is certainly not the Canada I know.
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 a suspicion of human smuggling or criminal activity. The fact that refugees may have or use 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 genuinely seeking asylum or refuge as criminals rather than victims.
More specifically, included provisions discussing irregular arrivals state that children 16 years or older can be detained and that children under 16 years of age can be separated from their families without any obligation on the federal government to appropriately justify this detention. This is not only unconstitutional but also a 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 genuine 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 as irregular based on one of two criteria: if an individual is found to be with a group of 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 subject to appeal such a designation.
Unfortunately, for an individual who is identified as a designated foreign national, even if the individual is eventually found to be a genuine refugee, the consequences include mandatory detention of up to six months, the inability to apply for permanent residence for five years and being prohibited from sponsoring family members for five years.
Here I think it is of great importance that we examine the definition of “irregular arrival” that this bill adopts. When doing so, we must remain mindful that given Canada’s geographic location, asylum seekers and refugees often have no choice but to arrive by ship. As I am sure you will all understand, arriving by plane without having the proper papers is difficult if not impossible. Therefore, asylum seekers often have no choice but to enter by ships that would have to carry many people at a time to set sail.
We are all aware that when a person is fleeing their country, they may not even have access to their documents.
Further, to enter Canada from most countries, you need a visa, which may not be an option for the refugee, so they end up desperately seeking the support of unsavory people and travelling with false documents.
We know that they often do not have the option to flee with the correct documents, so when they arrive here under Bill C-31, we will detain them.
How can we detain refugees?
Honourable senators, in 1972, my entire family was forced to flee Uganda, the country of my birth and my father’s birth, and we sought refuge in Canada. I cannot begin to express to you the fear, desperation and helplessness that my family and our community were overwhelmed with. We were forced to leave the only home we had ever known with nothing but the clothes on our backs. We feared for our lives and for our safety and prayed that we would escape safely and be given the opportunity to rebuild our lives. Just before we fled, my husband, Nuralla, was detained. I almost lost him. We lived in a village very far from the airport. It took us hours to reach the airport. At every army checkpoint, I was petrified that once again Nuralla would be detained. The indignities we suffered on the way to the airport are something we still have not dealt with.
I consider myself extremely fortunate to have been welcomed into Canada, a country that is internationally recognized as being compassionate, accepting and tolerant. I am extremely grateful to call myself a Canadian and represent my province of British Columbia in the Senate of Canada.
Unfortunately, Bill C-31 violates the fundamental human rights of those desperately seeking refuge and asylum.
As a woman who once sought refuge, I understand what courage and sacrifice it takes to leave the only country you have known and start a new life in a foreign and unknown land. Several factors lead one to seek refuge or to emigrate to a new country. Over the past several decades, political upheavals, conflict, persecution, climate change, food and economic crises have motivated individuals from all walks of life to immigrate to Canada, a country full of opportunity and promise.
Not only does Bill C-31 fail to recognize the dangerous and life-threatening circumstances that many men, women and children are confronted with, it also makes these individuals feel unwelcome and treats them as though they were criminals rather than victims.
Honourable senators, does this sound like the Canada we know? Does the Canada we know turn its back on those who desperately need assistance, denying them having their cases heard in a fair trial? Does the Canada we know allow the cries of mothers who are desperately looking to protect their children fall upon deaf ears?
Biometrics is a very important thing. In 2002, when the Liberal Party was in government, I was very much involved with the issue of biometrics. I commend the minister for again looking at this issue. This is an important step, because there is a very legitimate case to be made about implementing biometrics for people who enter our country, as well as for people who are deported from our country so that they do not re-enter. Countries all over the world are implementing biometrics. At committee, we will investigate the framework of how biometrics will be set up and what steps will be taken to protect the privacy rights of refugees.
As I have already stated, Bill C-31 is an omnibus bill, and it covers many issues that I would like to bring to the attention of honourable senators. However, I will not be able to present them fully, as I have very limited time left. However, there are several issues that I would like to briefly touch upon, issues I hope we will be able to study in detail, such as family reunification.
I would like to start with family reunification. A refugee is forced to leave many things behind when he or she flees: their home, their belongings, their friends, but most importantly their family. Recognizing the tremendous loss this would be for a person to have to endure, the drafters of the 1951 Refugee Convention specifically stated that family unity is an essential right of the refugee.
Bill C-31 makes a refugee wait for five years after they have been accepted as a convention refugee, which realistically could end up translating into eight years until they can be reunited with their families. Forced family separation for individuals granted refugee protection in Canada causes great harm not only to the refugee but also to their family, causing numerous challenges and emotional and mental distress.
This is worse for the child who has arrived in our country and will be forced to be without a family for a very long time, thus denying the child the love, care and guidance of his or her family. This is contrary not only to the Refugee Convention but also to the UN Convention on the Rights of the Child.
Another point of concern is provisions of Bill C-31 that deny for five years the application process for permanent residency. The 1951 Refugee Convention clearly states that we are obliged to facilitate the naturalization of refugees. 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.
Regarding the appeal process, honourable senators will very clearly remember that, not so long ago, we all accepted the last immigration bill introduced by Minister Kenney here in the Senate that was brought before us as the minister was going to be implementing an appeal process. This was supposed to be implemented in June. Now this process will not be implemented as we expected.
Bill C-31 restricts access to Refugee Appeal Division for designated country of origin claimants designated foreign national claimants who came to Canada via a safe third country and claimants whose refugee claims have not been found to have a credible basis. Restricting the right to appeal these decisions is punitive and unfair, especially in the light of the commitment the minister himself made to us in the Senate last year.
There are also compressed timelines. Bill C-31 amends the process leading to an initial hearing by the Refugee Protection Division. The timelines for the process will be drastically shortened. Now once the claimant makes a claim within 15 days they have to submit a basis for a claim form. The current timeline is 28 days. Having prepared hundreds of these forms, I can personally attest to the fact that this is an extremely important fact-gathering exercise, one that takes a very long time as one needs to build trust with the claimant before one can properly fill out the forms.
Bill C-31 gives the power solely to the minister, where before it was to an advisory committee, to decide which countries are designated countries of origin or safe countries. Claimants from these countries will be subjected to serious procedural disadvantages, namely truncated processing times at the Refugee Division, denial of access to appeal, and potential deportation before the judicial review application is decided.
This is incompatible with sections 7 and 15 of the Charter.
Another issue is denying health care to refugees. Under this provision, there will also be no medication provided to refugees, as there have been drastic cuts to the Interim Federal Health Program without any consultation with the provinces. Therefore, a refugee will be denied medication for common illnesses, such as diabetes, cancer or heart disease.
Honourable senators, Canada has a very proud and well-earned reputation for being exceptionally tolerant and an accepting nation, a nation that has always been generous to those who have sought refuge and protection. However, this has not always been the case. Our government once imposed a head tax on all Chinese immigrants, refused to allow African farmers to immigrate to our country, and incarcerated Ukrainians and later Italian and Japanese Canadians. We have before us in the Senate a motion introduced urging the government of Canada to officially apologize to all of those individuals who were targeted by Canada’s discriminatory policies and who were turned away from entering Canada in 1914.
Our government has realized their wrongdoings and has chosen to redress these historical wrongs. Our government has worked hard for decades to be perceived as a nation that is based on the principles of justice, equality, fairness, acceptance and tolerance.
Bill C-31 does not reflect these principles. Bill C-31 does not right historic wrongs; instead, it repeats them. Bill C-31 will change the way the international community perceives our great nation, tarnishing a reputation that has taken almost a century to build. Bill C-31 will change the face of Canada as we know it.
When studying this bill, I thought of my family. If my family did not have the largess of Canadians and had not been welcomed here, and if we had turned up 40 years ago, if Bill C-31 was in place, what would have happened to us? There were 10 of us who arrived on the shores of Canada. We would have been a group. This bill states that if you arrive in a group consisting of more than two persons, you would be detained. We would have been placed in jail-like detention centres. My two younger sisters, despite the fact that they were under the age of 18, would also have been detained. Although my son, who was just a year old, would not be detained with us under this bill, he would be separated from our family and placed in state care, which for a mother is unimaginable.
Honourable senators, over the last year, I have run into many Somalians in Africa who are fleeing. Many African countries are giving thousands of Somalians sanctuary. 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 force him to wait five years before he can apply for permanent residency or before he can be reunited with his family.
The United Kingdom and Australia have abandoned their policy of detaining 16-year-olds. Let us also not detain 16-year-olds.
We will also deny them essential medicines.
Honourable senators, I know the committee will study this bill very carefully. Although I am in agreement that we need to establish a balanced and fair immigration system, we must ensure that we continue to be a country that is internationally recognized as being compassionate and humanitarian.
I urge all honourable senators to study and debate Bill C-31 carefully and to stay true to our values, which make us proud to say we are Canadian.