Senator Omidvar on Asylum Reform Provisions in Bill C-97

Hon. Ratna Omidvar: Honourable senators, as I have listened to this discussion, I am reminded of the fact that I have been a senator for three short years. People ask me, “What’s the best part of your job?” I have to admit that we deal with issues ranging from pipelines to tanker bans and rocks and hard places, to cannabis pardons and structured intervention units. We truly embrace Canada in full, and that’s an incredible privilege.

With that in mind, I want to point your attention to a measure in Bill C-97, the budget bill, and the report from the Standing Senate Committee on Social Affairs, Science and Technology, and bring your attention to asylum seekers.

Today at the Standing Senate Committee on National Finance, which I attended, this measure, along with all others, was approved. Nevertheless, I wish to go on the record and provide some context for the Social Affairs Committee report before you.

The changes that are in Division 16, Part 4, of Bill C-97 have been in the news a great deal, so let me assume that most of you are aware of them. In summary, they introduce a new ground for ineligibility for refugee protection if a claimant has made a claim for refugee protection in another country with which we have a data-sharing agreement. These agreements are with the U.S., the U.K., New Zealand and Australia.

Any individual who has made an asylum claim in any one of those countries would therefore be barred from a hearing before the Immigration and Refugee Board, the IRB.

Although this agreement covers all our Five Eyes partners, it is particularly targeted to those who are crossing irregularly from the U.S. into Canada.

Instead of a hearing at the IRB, claimants who fall under this category will be rerouted to a process called the pre-removal risk assessment, or PRRA. Let me take a few minutes to explain to you what PRRA is and how it differs from an IRB hearing.

The PRRA is a risk assessment process to determine whether a person would be at risk of physical harm if they get sent back to their country of origin. To date, it has mainly been applied to asylum seekers who have been rejected by the IRB. The PRRA helps determine if that individual would still be vulnerable to risk. A good example could be a claim from an individual from Afghanistan who may not meet the criteria for refugee protection but, nevertheless, would be at risk if deported back to Afghanistan.

The objective of this measure is, and I quote the government, to “better manage, discourage and prevent irregular migration and to improve the efficiency of the Canadian asylum system, without compromising its fairness and compassion,” fairness to Canadians who are concerned about delays and are worried about the integrity of the border, and fairness to asylum seekers so that those who cross our border irregularly are not unfairly advantaged or disadvantaged based on where they arrived from.

As many of us have observed in the Senate, the devil is always in the details of the legislation. And as there are upsides, there are also downsides, and I would like to use some of my time to unpack these a little.

I posed some questions to myself, as I studied this measure, and I would like to share them with you.

First, should changes like this, which have a significant impact on people’s lives and our system of asylum approval, be buried in a budget bill? Does a budget bill allow us to exercise our due diligence, as is normal on stand-alone legislation? Does it allow us appropriate time to study and hear from experts and stakeholders? Can we truly exercise our sober second thought in this context?

At pre-study, the committee devoted precisely four hours to hear from precisely five witnesses.

The next question I asked myself was to assess the potential harm to at-risk communities, such as women fleeing domestic violence, children and LGBTQ+ communities.

As a letter from 40 women’s organizations said, “Women and children could be returned to their home countries, where they faced violence and persecution, without a proper hearing before an independent adjudicator.”

Deepa Mattoo of the Barbra Schlifer Clinic, which is a shelter for women in Toronto that has significant expertise in domestic violence, wrote in the Toronto Starthis past weekend:

Women refugees already occupy a precarious position in the global community. Gender-based persecution is the No. 1 reason female refugee claimants seek asylum in Canada. Approximately half of these women flee to escape domestic violence when they are unable to find protection within their home country.

This is particularly concerning since the Trump administration has slammed the door on women seeking protection from domestic and gang violence. Domestic violence is a recognized ground for protection in Canada but no longer in the United States.

To be absolutely clear and factual, a U.S. federal court struck down the Trump policies as it applies to the initial interviews of asylum seekers, but not to the decision of the immigration court. It is hard for anyone to predict what the hurly-burly of current U.S. politics will do to women whose claims rest on domestic violence, given that President Trump has removed domestic violence as a grounds for protection. It’s a bit like you are allowed to go through security, but you’re not allowed to get on the plane.

My third question — and I think this is a serious one — is around the independence of decision-making. The IRB has been structured to be independent of political influence, political preferences and political reach. This is essential to retain the integrity of the system.

The PRRA process, in comparison, will be staffed by public servants, and much as I respect and admire public servants, they are not independent of political influence because, at the end of the day, they work for a minister and a department In many instances, we have seen how public servants can be given direction and can be influenced one way or another.

Further, claimants who go through this process will also not be able to seek an appeal to the Refugee Appeal Division. Instead, they will apply for judicial review, which is a much narrower process, focusing on the legalities of the decision. And complainants can be deported before the judicial review is completed.

My third question concerns consistencies with past court decisions that guide our refugee system. The Supreme Court, in Singh v. Canada, in 1985, declared that the legal guarantees of the Charter of Rights and Freedoms apply to everyone physically present in Canada, including asylum seekers. The court also said that refugees have the right to a full oral hearing of their claims before being either accepted or rejected.

At committee, the House of Commons amended the bill to require such an oral hearing at the PRRA; thus replacing the current paper review, and the government has called this “an enhanced PRRA.”

When asked about whether this measure would bring us in line with the Supreme Court decision, Minister Blair assured us that this change satisfies the spirit of the decision. I’m not sure I disagree with him on this, but I’m also told by stakeholders that this decision will be challenged in the courts. Not everyone is convinced by Minister Blair’s assertion that this will not be challenged.

Andrew Brouwer of the Canadian Association of Refugee Lawyers noted that it would be more appropriate to call these hearings at PRRAs interviews — they’re not hearings — even when they are enhanced. They bear none of the hallmarks of what makes up for a fair tribunal hearing. The claimants and counsel are not allowed to present the case as they see fit, but they are there to respond to issues by the PRRA officers. They may not call or cross-examine witnesses, and they have no opportunity to redirect. The way I translate that, to my non-legal mind, this is a one-way conversation.

The fourth question I will ask you to consider is this: Is the government investing in two parallel systems? I believe the government when they say they are dedicated to strengthening the IRB, and they have made the investments in funding for the next five years. This is a lot of money, but I hope this will restore the IRB, that has been cash-strapped for the last decade, and so enable it to deal with its caseloads and backlogs.

I also know that this will not happen in a nanosecond. It takes time for these changes to demonstrate impact. If this is going to be the case, why would we simply not second IRB judges to the PRRA hearings, thus creating efficiency and retaining the independence of the system.

Conversely, why would we not bring the entire PRRA process under the jurisdiction of the IRB? This way it would still stay independent, benefit from its knowledge and competency but speed up the process.

I was surprised to learn that in 2012, under then-Minister Kenney, legislation was tabled and approved to bring the PRRA into the IRB, but this legislation was never brought into force. There are other options that could be considered.

My question is whether this is the start to a slow deterioration and undermining of the independent adjudication system. This government, or future governments, may move more claimants away from the board and into the new enhanced IRCC apparatus from the mother ship, so to speak, to the garage.

The fifth question relates to uncertainties and the timing. Minister Blair has informed us at committee that the IRCC will hire 46 new officers. They will be trained and equipped with the competencies to make life-changing decisions. Again, this does not turn on a dime. The measure comes into force at Royal Assent.

In conclusion, advocates have raised the alarm about the potential impact on women, children and the LGBTQ+ community. The independence of the system could be at risk. A budget bill does not allow us sufficient time to examine these measures.

I’m left with this question: Will this measure make us stronger or weaker? That’s a loaded, value-based question. I ask myself which lens should I use to answer that question, and I reach back to one of my personal heroes, Mahatma Gandhi, who said, “A nation’s greatness is measured by how it treats its weakest members.” Those who are the weakest, those with no voice, and those with little personal agency.

I hope, with these questions in mind, along with others you may have, we can still provide a modicum of sober second thought as this particular measure is considered at third reading.

As for myself, I have very reluctantly accepted the fact that it is well nigh impossible to amend a budget bill. I have used other routes to create enhancements. In successive meetings with Minister Blair, has been extremely responsive to suggestions both from the Social Affairs Committee and my own suggestions. He has incrementally enhanced the PRRA process to more closely meet a higher bar. I will admit this measure is not perfect. I do not believe perfection is within our reach.

In addition, Minister Blair has said that the government is willing to provide the Social Affairs Committee with an update on the effectiveness of these new measures within two years.

Honourable senators, this is not the last time I hope you will hear about this, and certainly not the last time you will hear from me about this. Thank you very much.