CCLA parliamentary submission warns Bill C-12 will create fundamental unfairness in our immigration system

Dans un brief published by the House of Commons Standing Committee on Public Safety and National Security (SECU) today, the Canadian Civil Liberties Association (CCLA) called on the Committee to reconsider the flawed approach taken by Bill C-12, the Strengthening Canada’s Immigration System and Borders Act.

Instead of maintaining Canada’s role as a welcoming country for refugees and migrants, Bill C-12 creates fundamental unfairness in Canada’s immigration system and will violate the Charte des droits et libertés as well as our international human rights obligations as they relate to refugees.

The submission focuses on three central flaws in the bill:

• Bill C-12 will prevent many refugees from accessing a fair assessment of their claims before the Immigration and Refugee Board, greatly increasing the risk that they will be deported to conditions of persecution;
• Bill C-12’s grant of wide-ranging discretion to pre-empt, suspend or terminate immigration applications and to alter or revoke immigration documents for undefined “public interest” reasons; and
• Bill C-12’s broad authorization to share sensitive immigration information.

Bill C-12’s harms will be felt most accutely by vulnerable groups, yet the voices of those who will bear the brunt of this legislative proposal have been largely ignored in the government’s rush to push Bill C-12 through parliament. Given this rushed legislative process, it is no surprise that Bill C-12 fails to respond to the realities of those most impacted by it while equally failing to meet the government’s stated objective of streamlining Canada’s immigration system.

Elements of Bill C-12 will deny refugees access to independent and fair assessment of their claims and their right to appeal before the independent Immigration and Refugee Board (IRB). Many refugee claimants arrive in Canada after being forced to leave their entire lives behind and completing harrowing journies. In light of the severe consequences that result when refugees are returned to face persecution, detention or even torture, asylum seekers have the right to advance their claim through a hearing where they can fully explain the nature of their plight. In témoignage before the House Standing Committee on Immigration (CIMM), representatives of the UN High Commissioner for Refugees were explicit that by denying claimants a right to a hearing and full appeal of their claim, Bill C-12 fails to meet minimum international human rights standards.

The government has failed to justify the harsh penalties it is imposing on refugee claimants. Bill C-12 will penalize asylum seekers based on arbitrary criteria—if more than one year has elapsed since they first entered Canada, they will be denied a right to a hearing and appeal. This ignores the reality of asylum seekers, and the many legitimate reasons a refugee claim might be delayed for more than one year. LGBTQIA+ claimants and claimants who have survived trauma, torture or gender-based violence will be put at particularly heightened risk by this arbitrary one year cut-off as it can take years before people who have experience this type of persecution feel safe enough to disclose their identity or share their experiences. Other refugee claimants will be penalized under this sytem on the basis that they first sought other paths to gaining residency in Canada or simply because the situation in their home country has changed.

While efficiency can never be carried out at the cost of meeting Canada’s Charte and international human rights obligations, it is notable that denying claimants access to the IRB will not improve the integrity or efficiency of Canada’s refugee system. Refugee claims will still need to be assessed by public officials at Immigration, Refugees and Citizenship Canada (IRCC), and IRCC decisions that will be subject to time consuming judicial review despite significant existing backlogs and staffing shortfalls at IRCC and our Federal Court. IRCC decisions lack independence and critical safeguards while judicial review is largely limited to assessing the reasonableness of an IRCC decision rather than to determining whether rejecting an individual claim will lead to persecution. The ultimate result of Bill C-12 will therefore be a precipitous degradation in the quality of refugee decisions with no improvement in the efficiency of that system as backlogs simply shift from one processing body to others.

Bill C-12 will also expand Canada’s untenable reliance on the United States as a “safe” partner for processing refugee claims by further penalizing refugee claimants who landed in the United States before arriving in Canada. As the U.S. refugee system continues to rapidly deteriorate, refugee claims coverd by Canada’s Safe Third Country Agreement require more cautious assessment and additional safegaurds so that Canada does not become complicit in returing refugees to persecution. Instead Bill C-12 increases the likelihood that claims will be improperly assessed and that refugees arriving over our southern border will be abandoned to an increasingly broken U.s. refugee system.

Bill C-12 will also grant the government broad, open-ended discretion to suspend immigration applications (including indefinitely) and impose conditions or even cancel categories of immigration documents including permanent residency documents. The government has claimed this power will be used sparingly or to prevent fraud, but nothing Bill C-12 authorizes the government to invoke this extraordinary power whenever it considers it to be in the “public interest”. This new power includes no procedural safeguards at all—there is not even a requirement to notify individuals whose documents have been cancelled. The risk of politicized or unfair use of this power with devastating implications for migrants is therefore unacceptable.

Bill C-12 also authorizes the government to share personal immigration information within the immigration department and some categories of highly sensitive information with any federal, provincial or municipal entity. There are few restrictions on this authority, and baseline safeguards such as the need for information sharing to be necessary and proportionate are markedly absent. The broad dissemination of sensitive information such as refugee status and changes in gender identity that Bill C-12 authorizes is particularly primed to expose people in Canada to discrimination and abuse.

Despite Bill C-12’s highly attenuated timelines, dozens of groups joined CCLA in submitting briefs regarding the bill’s problematic implications, including Amnesty International Canada, the Barbara Schlifer Commemorative Clinic, the Canadian Association of Refugee Lawyers (CARL), the Canadian Bar Association (CBA), Canadian Council for Refugees (CCR), Canadian Drug Policy Coalition (CDPC), Canadian Muslim Lawyers Association (CMLA), the Canadian Red Cross, the Canadian Union of Public Employees (CUPE), Centre For Black Development Options Canada (CBDOC), the David Asper Centre for Constitutional Rights, the HIV Legal Network, the International Civil Liberties Monitoring Group (ICLMG), Legal Aid Ontario, Ligue des droits et libertés, the Migrant Justice Clinic, the Migrant Workers Alliance for Change/Migrant Rights Network (MWAC/MRN), Ontario Council of Agencies Serving Immigrants (OCASI), Rainbow Railroad, the Refugee Centre, Table de concertation des organismes au service des personnes réfugiées et immigrantes (TCRI), and Women’s Legal Education and Action Fund (LEAF).

MPs have not been granted sufficient time to consider the wide-ranging concerns set out in these briefs, while very few representatives of these groups were provided an opportunity to particpiate in committee hearings. Indeed, border control agencies and officials dominated the few meetings allotted for study of this Bill.

The result will introduce serious and fundamental unfairness in Canada’s commitment to refugees and migrants. Bill C-12 should be withdrawn.

Read CCLA’s submission in Anglais ou dans français et read more about Bill C-12 and its companion legislation, Bill C-2.