Hon. Tracy Muggli: 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 and 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 have 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.