CIMM Committee Meeting

     Good morning, everyone. I'm calling this, the 105th meeting of the Standing Committee on Citizenship and Immigration, to order, as we continue our study of the Immigration and Refugee Board's appointment, training, and complaints process.

    Thank you to the three witnesses who are with us today.

    As we've been continuing the study, you have both the advantage and the disadvantage that we're well into the study. You can add some insight for us, but also the committee will probably now ask questions that are based on the testimony we've already heard.

    I'm going to suggest we begin with you, Ms. Jacobs, since you are coming to us by video conference from Windsor, mainly because we know you're there and sometimes we lose a person on video conference. Then we'll go to Ms. Flaherty and Ms. Houle. Thank you.

     Thank you for the invitation to appear before the committee. I apologize for not being there in person, as I had hoped.

    My name is Laverne Jacobs. I'm a law professor at the University of Windsor. I write and teach on topics in the fields of administrative law and law on disabilities. My work seeks to put into place contemporary understandings of access to justice. Over the past 15 years I've authored several publications in the field of administrative law. My research has focused on tribunal independence, transparency, accountability and oversight, and the workings of administrative bodies. Between 2015 and 2017, I was editor-in-chief or co-editor-in-chief of the Windsor Yearbook of Access to Justice. Finally, between 2005 and 2012, I held order in council appointments as a member of the Accessibility Standards Council of Ontario and as a part-time member of the Human Rights Tribunal of Ontario.

    In my opening remarks, I would like to address three main topics. The first is the training of IRB members. The second is the complaints process and independence. The third is best practices for tribunal codes of conduct and their complaints procedures. However, before I get into these three main topics, I would first like to briefly situate the issues this study is addressing within some larger currents within administrative law.

    Over the past decade, there's been a shift in administrative law in terms of the values that are held to be most important. Between 1979 and 2008, one saw an increased interest in providing deference to administrative decision-makers and their various choices. This is amply seen in the administrative law jurisprudence and literature. However, in the last decade or so, there's been a growing recognition of the importance of the administrative state to vulnerable populations, and an increased call for greater accountability and substantive access to justice for vulnerable individuals. What's missing in administrative law, however, is the cohesive theory of administrative justice for addressing these new demands. This committee has an opportunity to help shape what administrative justice should look like in contemporary times.

    It's clear from the issues raised in this study—namely sensitivity in adjudication to the situation of applicants who may be persecuted, sensitivity to sexual orientation and gender identity issues, and sensitivity more broadly—that there are at least four crucial elements that should exist in any administrative law system if it is to provide administrative justice. These elements are, first, that decision-makers should show empathy. Second, adjudicative systems should be trauma-informed or at least aware of the impact of trauma on those before them, and try to avoid retraumatization. Third, an administrative justice system should be self-reflective. It should learn from the challenges and errors that have taken place within the system. Fourth, any administrative justice system should be transparent, to the extent that it can be, about its processes and about the reasoning behind its decision-making.

    Traditionally, Canadian administrative law has focused on four values—efficiency, expediency, expertise, and fairness—and worked with the tensions that arise among them. I think it's time for administrative law to move forward in developing a concrete system of administrative justice that not only addresses the traditional values but also strives to fulfill the more recently articulated goals as well.

    This framework lies behind my analysis of the three issues that the committee is facing, which I will turn to next. I'm happy to elaborate during the discussion.

    First, with respect to the training of IRB members, based on the evidence that has been presented by Professor Rehaag, the discrepancy rates in admissions arise from the inability of certain adjudicators to assess credibility. Other evidence has raised the additional problem of insensitivity to claimants. In my opinion, these issues should be addressed through training. IRB members need to have ongoing training on ways of assessing credibility and avoiding implicit bias. Instructional examples need to be examined collectively, in training sessions for board members, to discuss why and how adjudicators move from the facts that they receive to the outcomes that they give. In doing this training, it's important to refrain from pressuring individuals to decide in certain ways, as doing so would violate the independence of adjudicators and would be contrary to Supreme Court jurisprudence. What should be emphasized in training is how to check for implicit biases. Moreover, the result of conduct complaints should be anonymized and used as training tools for the collective board.

    Second, with respect to the complaints process and independence, an issue that has been raised before the committee is whether it is acceptable for complaints to be made through a process in which the final decision-maker is the chair of the IRB, or whether an independent final decision-maker or even an independent complaints process should be instituted. In my opinion, while the 2017 complaints procedure is an improvement over the last, it is best if the chair of the IRB does not make the final decision on conduct complaints.

     In an already politicized climate, where public confidence in the IRB has suffered a blow, having the chair decide whether a member has violated conduct requirements will not lead to restoring public confidence. As a general principle, and outside of the particular situation of the IRB, questions will always be raised as to whether a chair is favouring decisions that protect the image of the tribunal. The process also risks interfering with members' adjudicative independence. For these reasons, I disagree with the submission of my colleague Ron Ellis on the issue of an independent final decision-maker.

    Third, what are best practices for designing administrative tribunal codes of conduct and complaints proceedings? Codes of conduct are a relatively new phenomenon in Canadian administrative law. In Ontario, the 2009 Adjudicative Tribunals Accountability, Governance and Appointments Act requires every adjudicative tribunal to create a code of conduct. Little guidance is offered, however, as to what should be included in this document. There is also little literature on the design of tribunal codes of conduct. Across the country the practice of keeping codes of conduct is piecemeal.

    ln terms of best practices for tribunal member complaint procedures, the procedure should have an investigating panel and a final decision-maker to which the investigating panel presents recommendations. Both the investigating panel and the final decision-maker may be from the same reviewing entity, as seen, for example, in the Conseil de la justice administrative, Quebec's administrative justice council. The final decision-maker should be distinct and at arm's length from the investigating panel.

    Does the final decision-maker need to be in the form of a panel? There are not many examples to study for the answers to this. For adjudicative bodies, a panel incorporating members of a group of administrative tribunals has been used in Quebec. An integrity commissioner has been used, under the City of Toronto Act, for local boards. However, the local boards tend not to be adjudicative but polycentric in nature.

    In my opinion, the matter comes down to the extent to which it is necessary at the final decision-making stage to have a member of the administrative tribunal who understands its inner workings and can convey that knowledge. If that seems unnecessary for the tribunal in question, a sole individual who is an independent third party with knowledge of ethics, such as the Office of the Conflict of Interest and Ethics Commissioner, could perform the job.

    At the same time, the current commissioner is the past chair of the IRB. This too can cause a reasonable person to have concerns about fairness in the process. I would therefore suggest that the commissioner's office be used but that the current commissioner not be involved in any matters relating to the IRB.

    Last, based on a reading of a number of tribunal codes of conduct, I suggest that four elements should be present in a tribunal code of conduct: a statement of its purpose; civility and ethical requirements; breaches, sanctions, and the process for determining complaints; and a description of how the complainant will be involved.

    Thank you.

    Excellent.

    Thank you very much. You were faster than you thought you would be.

    Ms. Flaherty.

     Good morning, Mr. Chair.

    Thank you very much for inviting me to come before the committee.

    My name is Michelle Flaherty, and I am a law professor at the University of Ottawa.

     I teach administrative law at the University of Ottawa, and I have published in that area. I am also a member or a vice-chair of a number of administrative tribunals within Ontario. My hope today is to bring both an academic perspective and a very practical perspective to some of the work the committee is doing. In my comments today, I wish to speak to you in practical terms about how administrative law principles can guide the important work you are doing in reviewing the work of the IRB. I'm going to speak about three aspects: the appointment process, the complaint process, and training.

    To turn first to appointments, in my view the appointment process is the first and most important tool available for promoting excellence at the IRB. I wish to echo what you have heard from other witnesses in terms of the importance of both depoliticizing that process and ensuring that the appointments are merit-based. Although I am speculating to some extent—and I know there have been some concerns raised about conduct of past members of the IRB, as well as assessment of credibility—in my view I really question whether those types of issues would have arisen in the context of a merit-based appointment process.

    Depoliticizing the appointment process is not a novel idea. I would point to a number of other jurisdictions, most notably Ontario, where that is the common practice. Indeed, in Ontario there is legislative language that requires that appointments be made based on a competitive and merit-based process, and I am referring here to the Adjudicative Tribunals Accountability, Governance and Appointments Act.

    In my view, the appointment process is critical to the work the IRB does. It allows the board to build an adjudicative body based on skilled and capable decision-makers. It gives the board the right building blocks to use in the work it does. As Ron Ellis points out in his submissions, it's a way of cutting off at the pass some of the problems that can arise later. In fact, once we're in the realm of dealing with complaints, arguably it's too late and the alleged harm has already been done.

    An effective and merit-based appointment process, in my view, is the best way to address potential problems at the IRB. In my submission there are three key qualities that should be looked for in a merit-based appointee. First, I think it's important that the person have experience, knowledge, or training in the subject matter and the legal issues dealt with by the IRB. Second, ideally the candidate will have an aptitude and experience in adjudicating fair, impartial, effective, and efficient hearings. The final key quality is cultural competency and sensitivity to the issues that are raised and dealt with by the IRB.

    I think it's important to note that we don't live in a world of ideal candidates. Not all—or even many—of the potential candidates will have all three of those qualities. In my view, the board needs to have the latitude and discretion to hire and appoint members with a blend of those skills.

     I'm concerned that, for example, if you insist on subject matter expertise—in other words, if to be eligible to apply to the IRB, a person needs to have experience in dealing with immigration and refugee matters—you may then fall short in terms of the appointees' abilities in adjudication or cultural competency.

    I think this approach of hiring or appointing people with a blend of skills is consistent with what is done at other administrative tribunals. I can tell you that it's consistent with my own experience. I have been appointed to tribunals because of my subject matter expertise, but I have also been appointed to tribunals because of my adjudicative expertise, even though I may not have had a sufficient level of subject matter expertise at the outset.

    This, in my view, is where training comes into play. Training should try to centre on the three competencies I identified earlier. It should try to build upon and complement adjudicators' existing knowledge and abilities. It can further enhance subject matter expertise, enhance cultural sensitivity, and improve and facilitate the adjudication of matters. Therefore, teach adjudicators how to hold a fair, efficient, and impartial hearing.

    I understand that concerns have been raised about IRB members' abilities to assess credibility. In my view, training is an important part of addressing that issue. There is an existing legal test, and there is a rich body of jurisprudence that courts and all the administrative tribunals across the country use in assessing credibility.

     In my view, rather than interfering with those important and rich legal principles, I submit that the more appropriate approach is to first implement a merit-based appointment process, so that individuals are assessing credibility not based on ideological or political reasons but on the evidence available to them. Second, it should continue to train members on how best to assess credibility, how to apply those legal principles, the relevant and irrelevant factors, the aspects to which they need to be culturally sensitive, and the manner in which they can and ought to express their credibility findings in ways that are both intelligible and transparent.

    Finally, I want to speak about the complaint process. In keeping with administrative law principles, I agree that a complaint process is an effective mechanism to address misbehaviour by adjudicative tribunal members, including comments and behaviour during the hearing.

    Importantly, however, a complaint process cannot be used to interfere with the content of the decision, and I believe this is an important distinction for three reasons. First, there is an existing audit process—a means of ensuring that the content of decisions is appropriate. If a party is unhappy with a decision, it may appeal or seek judicial review on that matter. Courts have been specifically tasked with, and are best equipped for, assessing the appropriateness of the content of the decision.

    Second, in my view, little is to be gained by setting up a complaint process that operates in parallel to the courts. If that's done, which of the two matters goes first? All kinds of logistical issues are raised. What if the courts and the complaint process arrive at different conclusions? What does the outcome become at that point? Consider the resources and time required to address challenges to the same decision in different venues. The litigation could be interminable.

    Third, there are significant hazards in an overreaching complaint process. The principles of impartiality and independence require that adjudicators make decisions without undue influence and pressure. A complaint process concerning the content of a decision may be construed as undue pressure in the sense that adjudicators may feel they risk sanctions if they decide in a particular manner. These types of pressures raise important fairness considerations, and they leave the administrative decision open to challenge upon review.

    I'd like to close with a few brief comments about the role of the chairperson in the complaints process. In my view, there is no inherent bias or unfairness in the chairperson of the tribunal playing a decision-making role in the complaints process.

    The chairperson manages decision-makers, and the management role is analogous to the role that he or she would play in terms of the complaint process. I would caution against making assumptions about bias. In my view, the role of the chair is to promote the success of the IRB, both in terms of accomplishing its statutory mandate and in ensuring public confidence.

    In closing I would reiterate Ron Ellis' comment, which is that the chairperson's interest should generally align with the purpose of the complaint process, and that there is no one in the system who is more invested in having good and trusted adjudicative members than the chair, whoever that person may be.

    Thank you.

    Thank you very much.

    We will continue with Ms. Houle.

    Good morning. Thank you very much for your invitation. I will make my presentation in French.

    I am a lawyer and associate dean of Université de Montréal's Faculty of Law, and I also teach administrative law at the same university. I have done a lot of work on the appointment and training process for administrative tribunal members. In 2014, I published a book with some of my colleagues on an empirical investigation we conducted on Quebec's administrative tribunals. I brought a copy of the book and can leave it for you if you like.

    In the book, we propose a bill to reform Quebec's administrative justice system and bring it into the 21st century. So I worked on that. I have also worked on a number of issues related to evidence and the assessment of credibility, including before the IRB. So I have written fairly extensively on the issue. Over the past few years, I have been asking myself more theoretical questions about our system of evidence in order to determine whether it is adapted to a number of adjudication systems, such as the one used by the Immigration and Refugee Board of Canada.

    I would like to talk to you about four points today. The first concerns the complaint process, and I will dedicate the majority of my speaking time to that issue. Afterwards, I will briefly talk about the process for selecting and training members, and for assessing the credibility of stories. I have written a dozen pages on the matter. Should you want to know more after the meeting, I have left a few copies of the document here.

Concerning the complaint process, I have read the observations of my colleague, Ronald Ellis, and I heard what Ms. Flaherty had to say. From the outset, I can tell you that I disagree with both of them.

    I will mostly focus on what Mr. Ellis wrote about keeping the disciplinary investigation process for IRB members in-house. I disagree with his position both in terms of facts and in terms of the law.

    When it comes to the facts, Mr. Ellis based his argument on the negative impact that external process may have on IRB members' morale. In my opinion, that statement has absolutely no factual basis. I will use the example of Quebec because of its administrative justice council—the counterpart to the judicial council—which applies to all members of Quebec administrative tribunals that perform a purely adjudicative function, like the IRB.

    The council has existed for 20 years, and Mr. Ellis's concerns have not materialized. The process in Quebec is completely external to all administrative tribunals and basically functions as a judicial council.

    Concerning the legal side of things, Mr. Ellis said the external process could also negatively impact IRB members' independence. For me, this argument is problematic in law, but before I give you my thoughts on it, I want to specify that I have not found sufficient and complete information to fully enlighten me on the process proposed by the IRB and its integrity office.

    I will begin by talking about the complaint process for members of the Refugee Appeal Division, the RAD, and the Immigration Appeal Division, the IAD, who are appointed by the Governor in Council. Here is my issue with Mr. Ellis's and the commission's proposal. If those members were subject to that procedure, I feel that it would go against the procedure set out in section 176 and following of the Immigration and Refugee Protection Act, the IRPA. The legislation explains the complaint procedure that applies to those individuals. I find his reading of the IRPA to be very creative if he does actually hope to apply that procedure to members of the RAD and the IAD.

    When it comes to members of the Immigration Division, the ID, and the Refugee Protection Division, the RPD, the Immigration and Refugee Protection Act is silent on the complaint process. The issue arising from a legal standpoint is that those members have the status of public service employees. In theory, those are employees of the public service. So one would think there would be a reporting relationship between the chair and the commissioners. The issue related to this is two-fold.

    On the one hand, the legal basis is ambiguous. Even if we accepted the fact that those commissioners are employees within the meaning of the Public Service Employment Act, they cannot be subject to the chair's authority because they are very special public servants. They are administrative decision-makers whose independence is recognized, at least in the fulfilment of their adjudicative functions. I have trouble seeing what section of the legislation could be invoked to directly and explicitly support the existence of that power of the chair. In my opinion, in order to move in that direction, the legislation should be amended to explicitly state that, for example, by specifying that the chair can issue directives to members.

    On the other hand, I see another legal difficulty in terms of constitutional basis. The issue is that, if the chair or the integrity office director was allowed to directly exercise his or her authority over members' decisional activity, members' influence would be undermined, since they could potentially be influenced.

    That potential influence has been identified as something to avoid by the Supreme Court of Canada, as was noted in the first decision the court rendered on the application of the guarantee of independence for administrative tribunal members. I am talking about the Matsqui case. The court stated that members must be protected from any external or internal influences. Please refer to page 283 of my study.

    In addition, the court also establishes another principle according to which the degree of independence must be increased or decreased, while taking into account three factors: the tribunal's nature, the interests at stake and other indications of independence such as oaths.

    In the IRB's case, the Immigration and Refugee Protection Act must be interpreted as providing IRB members with increased guarantees and especially those employed by the RDP, since the tribunal's nature is that of a purely adjudicative tribunal. That tribunal is the closest thing to a court of justice, so the guarantees must be increased.

    The interests at stake also....

    I will need you to come to a conclusion.

    I will just finish this point.

    The interests at stake are basic rights, especially when it comes to the Immigration Division and the Refugee Protection Division. That was mentioned in the Singh case.

    Finally, IRB members must take an oath, as explicitly stated in the legislation. When we look at all that, we see that increased guarantees are really needed, which is why I think that having an internal complaint assessment process would be problematic.

    I will stop here.

    Thank you.

    We'll begin questioning with Mr. Sarai.

    Thank you to all three of the panellists here.

    My first question is to Ms. Houle.

    It's very common for refugee complainants in the west, particularly in British Columbia where I hail from, to have it suggested to them, especially in the past, to transfer or move their files to Quebec as they are told that they can expect a much fairer decision. Hearing your testimony gives me some assurance as to why.

    I have a quick question. Could you kindly afterwards submit a briefing, and maybe our analysts can provide it as well, as to what the Quebec selection process for the adjudicators is and what their complaint process is? I might have missed some of your presentation when you were first talking due to translation issues. I would like to know and compare it to the federal government's process, so I would ask you to do that.

    My next question is to Ms. Jacobs.

    We've heard that in many cases where the IRB member has a complaint lodged against them, there is a complaint and as soon as the complaint is lodged, miraculously, or for some uncertain reason, the member quits the board and there's no actual process done in it. Do you feel that regardless of whether one leaves a board or leaves a panel the complaint should still be heard and that it be a requirement, as many feel that they don't get a fair process and they're not vindicated in their complaint process?

    What are your thoughts on that, Ms. Jacobs?

    I think it's an interesting question and a somewhat tricky one.

    For the most part what you see in practice is that tribunals, and I believe courts as well, have jurisdiction over the members who are there. Once a person has left, it would be very unusual for that review in council, or whatever it's called, to then still have jurisdiction over the person who has left. If it were to be done, it would have to be done through very clear legislative enactment. I have not seen it done very much in the work that I've seen in the tribunals I've looked at.

    Okay. Thank you.

    Ms. Flaherty, you stated that there are three kinds of requirements for a merit-based appointment process. One is experience in the subject matter; another is aptitude to adjudicate; and the third is cultural competency. Experience is an easy one, something one could look at somebody's resumé or CV to see if they have it.

    How do you suggest aptitude be taken into consideration? How do you look at aptitude, especially if someone has no judicial background, whereas, say, if a provincial court judge is being appointed to a federal body like the Supreme Court, you could look at previous decisions to see the basis for them? Even for a person who is not a judge, you can see their litigation background and perhaps get some aptitude criteria.

    How do you get that from somebody who does not have legal experience or who has no adjudication background?

     I think that second competency essentially aims at getting people with adjudicative experience. You're looking at people who have worked for other boards, worked in the judiciary, and have had some kind of decision-making power, and that aptitude will be demonstrated through that experience. Really what I'm suggesting is that it's not sufficient to look for people who have simply subject-matter expertise. You want a blend of people.

    You may not be looking for someone who has neither subject matter expertise nor adjudicative expertise. They wouldn't necessarily fall within the list of ideal candidates. However, if you're looking at adjudicators, people who bring professionalism in terms of how to run a hearing, how to pose appropriate questions, and how to assess credibility, I think you're drawing from the community of people with adjudicative expertise.

    I agree with you, but I'm just trying to see how one appoints according to a cultural competency. If somebody has a lot of experience, say, working with immigrants from a certain area, they have a lot of cultural competency in that but may not have competency on, say, LGBTQ issues. How does one balance those? It's hard to have somebody have cultural competency along the whole gamut of things. They maybe think they're very sensitive and very aware, but their sphere is very small, maybe just Southeast Asia or the Middle East. It may be LGBTQ issues and not regional issues.

    How does one balance for cultural competency?

    I think part of what you look for is people with the specific baggage of expertise or experience, someone who has a lived experience, but I think this is where training comes in. You want people who are open-minded and prepared to engage in training experiences so that they can broaden their experience and horizon. I think what you're looking for in the ideal adjudicator is somebody who has empathy—as my colleague mentioned—and who's open-minded and prepared to learn about other cultures and other people's experiences.

    So what you're saying is, look at those who have empathy and a willingness to learn about others, and the rest is more effective training once they are appointed to this process. Is that what I'm hearing?

    That's my view.

    What are your thoughts on the new complaints procedure that was implemented in December 2017? Do you think it's adequate or do you think it should be changed?

    I've reviewed the new complaints process, and I have heard some of the submissions that you've heard already from important stakeholders who've said they are content with what has been proposed, and they see it as an improvement. I think they've urged this committee to take sort of a wait-and-see approach.

    It strikes me as appropriate. I think it is something that has teeth. My view, in terms of the role of the chair as well, is that there are mechanisms in there to ensure that there will be a fair adjudication of the complaint, and that includes referring the matter to an external investigator, so should there be a conflict or a concern, that might be dealt with externally.

    My review of the complaint process, from where I sit at some distance from the IRB, is that it strikes me as an appropriate process that will bear itself out over time.

    Ms. Jacobs, what are your thoughts on the new administrative tribunal complaints process?

    As I mentioned in my presentation, I believe that the complaints process can be manageable. I think that having the [Technical difficulty--Editor] ethics commissioner is a positive step. I think it's possible to use a complaints process in which the investigation is done by the commissioner's office as an external, but I think that the final decision-maker should probably still be an external, so it should still be at least the commissioner's officer, if not a review council.

    The one strong concern I have is that the commissioner is the former chair of the IRB. I think there is not enough distance there, and so I would suggest that, if the commissioner's office continues to be used, the particular commissioner be removed from the process.

    Thank you, Ms. Jacobs.

    We go now to Ms. Rempel.

    Thank you, Mr. Chair.

    Mr. Chair, I'd like to move the following motion, and I did table notice of motion of this on May 3, 2017:

    Mr. Chair, I realize we have witnesses here. For various reasons, I'd like to discuss a notice of privilege as well after this.

     I will let you know that the motion is in order. You have given notice, and this is your time. It is in order.

    Thank you.

    Mr. Chair, perhaps—

    I'll just interrupt to explain to the witnesses. This happens at committee from time to time. Just to let you know, it doesn't mean your testimony hasn't been heard or hasn't been important. It is the member's right to do this.

    For my colleagues, I believe it is in order. Even though there is a motion on the table, can I move a point of privilege?

    I know you can't do it the other way around.

    I know, but I did—

    Could I get advice? I need to get advice on that. This is the first time I've had that.

    I'm just asking for clarification.

    On a point of privilege, I realize we have committee business later today, but reviewing the blues of the last meeting, I noticed that one of my colleagues opposite said the following, “Again, the Conservatives filed notices of motion last week with respect to this.” The Chair actually said, “I was going to remind the committee members that we do have notices of motion which have been duly received by the committee.”

    The notice of motion that I filed is under committee confidence, and that was discussed in public. I'm sure it wasn't a deliberate attempt, so an apology would be great. It was discussed in public, and that's why I am moving it in public today as opposed to in committee business. I apologize to the witnesses, but such is committee procedure.

    I'm happy to unreservedly apologize for that error.

    Thank you. As would I. I was confirming it, but yes.

    I'm happy to proceed accordingly. Perhaps we should all be a bit more careful about what we talk about in public. Again, I realize we have committee business, but here we are, and so here we go.

    To the member, I would just say I'm not sure we revealed the nature of, or the wording of, the notice of motion. The fact that notices of motion have been received.... I would have to get some advice on that.

    An apology is given.

     We discussed content. Here we are, then, in public.

    The reason I believe this is very timely and that we need to study it is that it is an issue affecting all of our constituencies. It isn't a one-party issue. There was news received this week. I believe it was reported in TVA that it is anticipated that 400 persons per day will arrive at the Lacolle, Quebec, border crossing from the U.S. I think that is something that now forces us as a committee to make this issue a priority between now and the end of June.

    Also, you don't have to take my word for it. The provincial Liberal government in Quebec called the federal government's response to this unacceptable. I would like to think that the federal government wishes to solve this issue because it is unsafe and does not promote orderly migration. I also think that if we're not talking about this as a committee or if the government doesn't table a comprehensive response prior to the summer months, we're going to have a serious issue.

    I'm also very worried about public perception of Canada's immigration system right now. I would like to think that Canada's debate around immigration is much different from that in other parts of the world. I think most Canadians would say they very much value the fact that Canada is open and welcoming to the world's most vulnerable and that most Canadians would say they acknowledge that we're a country of immigrants. But I think that what's happening at the Quebec border, as we see people crossing in these large numbers day after day.... More importantly, this is about the trickle-down effects that unplanned migration has on our social programs, such as that we don't really have a plan to deal with the costs of this or with integration or, frankly, with the backlogs in the IRB that we're seeing right now. So it is incumbent upon this committee to take a pretty detailed look at the issue right now.

    If we don't get some action on this, I think the Canadian public is going to very quickly lose faith in Canada's immigration system, and frankly that's not something I want. I'm proud of the fact that the debate in Canada is around how we do immigration, not whether we do immigration, but if this continues unabated with no plan, Canadians rightly will question it.

    There are a few things, then, I would like my colleagues to think of in terms of why this is the case. A daily rate of 400 people puts a huge strain on affordable housing and social programs. We know that the Quebec government has put forward to the federal government basically the bill for the last year; it is only going to rise. If we have 400 people per day, there are going to be 48,000 people this summer. Summer in Canada is short, so I'm not sure what summer is defined as, but in the context of that TVA article, it's June through September. These 48,000 people are just at the Quebec border alone.

    Right now I think the number of people claiming asylum through illegal channels is actually greater than the number of people claiming asylum through legal channels. That's not something we want. I think it's a very bad message to the Canadian public, that we're not managing this appropriately.

    I also think that if this continues unabated with no plan, we are going to have serious backlogs within the IRB. We already know that the IRB is very backlogged, and 48,000 cases in four months is crazy. How are we going to deal with that number? How are we going to process these people?

    If the IRB is functioning properly and can turn cases around in a very quick period of time for those who have a legal right to be here and to have asylum, we should have a plan for supporting their integration. It should be fully costed. We might have political differences on how to do that.

     The fact that the IRB has had to throw their hands up—and this isn't an indictment of the people who are working at the IRB—and say they can't process them.... They're giving up on the two-year legislative timeline. They don't know how many years it's going to take. I think it's completely unfair to send a message that with regard to the people who are illegally crossing into the country, who won't have their asylum claim heard for many years, there is no plan to deal with the burden that has on our social programs in this country or the impact it might have on other processing streams.

    Many of you will have casework in your office. I'm working on a case of a privately sponsored refugee from Eritrea. The wait time for PSR through the Djibouti embassy right now is 89 months. Think about that for a minute. That's over seven years. Seven years response time to get a PSR claim is just not compassionate; it's ridiculous. The whole thing is that if you're trying to flee a situation and someone's saying you have to wait seven years, it defeats the purpose.

    But I digress.

    We have to solve the issue at Lacolle, Quebec. We cannot let this go through the summer, so I would like to explore some potential solutions. I don't want to speak on her behalf, but my colleague at the end of the table and I have started a healthy debate on what those solutions could be. It's the “how”.

    We might politically disagree on how, but we need to study this right away. Some of the things I'm interested in looking at are ways that we can potentially enforce the safe third country agreement, for example. Yesterday in the House of Commons, I asked the minister if it would be possible to designate the entire Canadian border as a legal point of entry technically for the purposes of enforcing the safe third country agreement.

    Has the minister even broached the topic of the safe third country agreement with the Americans, including that loophole? Is this a side conversation with NAFTA? What is happening here is clearly unsustainable. This is only going to become more of an issue, and I do not want this to be a conflated, partisan issue, because at the end of the day, we're talking about people who are making a very unsafe journey. When we are essentially setting up refugee camps on the U.S.-Canada border, I can't believe that anyone around the table here would think that is a positive optic or a good idea.

    I don't want this to become a conflated, partisan issue, because I genuinely think that is going to reduce buy-in from the Canadian public for humanitarian immigration, and that is not something I want to see. However, in my role as critic for the official opposition, if the government is not going to take action on this.... This has been a problem. We're going into the second summer on this. I have a job to do.

     I'm starting here. I am asking for permission to have the study happen right away. I don't want this motion to pass and then have it happen right before the election or something. This has to happen today. It has to happen before the summer. I think it has to take precedence. Otherwise this is just going to get worse and worse and worse. We are not going to be able to address the backlogs with the IRB because we're not reducing the demand.

    Quebec is only going to get more cheesed. This isn't just Quebec. This is Manitoba. This is going to start happening at other border points. The other thing is that we're hearing from unions. The CBSA is saying they don't have enough resources to do this. My colleague, the shadow minister for Public Safety, raised the issue that people have been instructed to put 400% less time into screening people crossing the border, so it's also a public safety issue.

    Under no circumstances can anyone think it's reasonable that 400 people per day illegally crossing into the country and claiming asylum is sustainable.

     I look across the way and say to my colleagues that this has an impact on their Quebec caucus. The Liberal Party has a large Quebec caucus. I would be very curious to understand where they would be on....

     I know typically what happens with these motions is that debate is adjourned or these sorts of things. I really think this should come to a vote today. I would think the Liberals' Quebec caucus would like to see this issue addressed before the summer, when they have to go back to their ridings and take a lot of heat from the province, especially going into a provincial election, on this being an issue. For what it's worth, I'm not trying to filibuster; I'm trying to make some legitimate arguments that this needs to happen, seriously.

    I just want to read few headlines. I'm not sure if my colleagues opposite have been following the number of articles in the last few days, but it's been super high: “Canada needs more border agents to avoid summer crisis, union insists”. I understand the government has said it is putting in almost $200 million just to process the paperwork. Is throwing $200 million into this the best way to deal with it? I would argue no, but the reality is that we haven't had people in front of our committee to talk about these things. I find it very bad that our response is to say let's just put a bunch more border-crossing agents there. I think we should be finding solutions to fix the problem so that we reduce the demand on the system. Again, this is something that was in the Montreal Gazette, “Canada needs more border agents to avoid summer crisis”.

    The Quebec government, Premier Couillard, has been in the media quite a bit in the last week, and he's said that “Ottawa’s response to his request for assistance on the refugee crisis reflects 'a complete ignorance' of what’s going on at the border between his province and New York state.” From my understanding, and I've been to the border in Manitoba, it's just a flood of people every day. I think we also have to ask ourselves at what point this starts becoming a route for human trafficking and human smuggling. I'm hearing anecdotal stories of this. We've seen people who have entered the country through this route, who have been found in possession of child pornography. I believe there was a child pornography smuggling ring that was also utilizing this route to enter Canada. We're hearing from border agents that they can't keep up with the volume. Even if you put one million border agents there, is that the best use of resources? No. What is their ability to actually screen people?

    This headline is what really...: “Quebec says 400 asylum-seekers a day could enter province this summer”, and the article says:

    That is my rationale for the main motion. I would like to propose first, though, an amendment to the motion. I move an amendment that the committee begin its study immediately and that the committee table its response prior to the House rising for the summer, and just to put a date on it, let's say by the end of the first week in June.

     If I may just interrupt for one second, Michelle, I do not believe that members who've moved a motion can amend their own motion. I think another member would have to do that.

    Fair enough, Madam Chair.

    I'm going to put on the record that my worry is that if—

     You can yield the floor and have someone move it.

    Oh, can I? I would like to yield the floor to my colleague Mr. Maguire.

    Thank you, Mr. Chair and Madam Chair.

    I was on the list to speak, and I would have done so at this point, but certainly I am prepared to make the amendment to move expeditiously on this committee work on immigration. I think it is extremely important that this be done immediately, and so I'm pleased to be able to amend this motion that we proceed immediately with a review, with a study, and that we table the report by the end of the first week of June.

     We now have an amendment on the motion, but you have the floor.

     I am prepared to turn that back over to my colleague.

    Okay. Again, the reason we have to do this right away is that the crux of the issue is going to be during the summer months. However, in terms of anyone saying, “Is this going to be a problem; is it hyperbolic?”, I would point out to you the data from the first three months of the year. We know that in the cold months of the year, between January and February, 2,000 people crossed the border. That is a huge increase over the same time period last year. If 2,000 people are going to cross the border in January and February, it shows that there is definitely evidence for the accuracy of the projection from government officials on the 400-per-day number. If the committee is not undertaking this study right away, then essentially what's happening is that we're deferring the work until after 48,000 people come in. I think this needs to happen right now. I would like us to have some consensus on how to proceed prior to the summer, and I am in support of that.

    Okay.

    Before going to Ms. Kwan, I'll just let the witnesses know that we're now at noon. You had been booked until noon and it is absolutely fair for the three of you to say that you are happy to leave now, recognizing that the committee did not get to ask you questions, but you can stay or leave.

    Ms. Kwan.

    Thank you very much, Mr. Chair.

    Just on the point with the witnesses before they take their leave, from time to time if debate ends in this manner, we have the opportunity to resume the discussion at hand, and then we can continue on with questions to the witnesses accordingly if the chair deems that we can proceed that way. However, if the witnesses leave, then of course we will have no choice but to end that component of our committee meeting. I just put that to you. I know that people have busy schedules. You allot your time accordingly, and then this situation occurs and it might disrupt your other appointments down the road.

    I will just remind the member that unfortunately she now has to speak to the amendment.

     Mr. Chair, I am happy to speak to the amendment, but I was raising that as a point of order—

    I know. It was gracious of you. Thank you.

    —for clarification for our committee members, because often what happens is that this occurs and then we don't get to ask questions.

    All right. On the amendment to the motion, and then the motion as well, I would speak to both of those items briefly.

    I generally would support this approach, for the committee to engage in a study on this critical issue. In fact, on Tuesday when we had committee, I actually wanted a couple of minutes of the committee's time to put notice of a motion on the floor. One of those motions was in fact that, pursuant to Standing Order 108(2), the committee undertake a study examining the ongoing influx of irregular border crossing and asylum seekers continuing to enter Canada through the southern border; that the study examine the impact of the safe third country agreement on the situation; that the study examine the impact of the increase in asylum claims on the RCMP, CBSA, IRCC, the IRB, and NGOs and provinces that provide settlement services in areas where these crossings are more frequent; that this study be comprised of no fewer than five meetings; that the Minister of Immigration, Refugees and Citizenship and IRCC department officials be in attendance for at least one of the meetings; that the Minister of Public Safety and Emergency Preparedness and Public Safety Canada department officials be in attendance for at least one of the meetings; that officials from the IRB, CBSA, and RCMP be in attendance for at least one of the meetings; that the committee report its findings to the House; and that, pursuant to Standing Order 109, the government table a comprehensive response thereto.

    Unfortunately, as you know, on Tuesday I was prevented from providing this notice of motion at the committee. In that context, I have a similar motion, that I would like to proceed with this study. I do think this is important. We know that from 2017, the number of irregular asylum seekers increased. In fact, in 2017, those numbers were at 20,593. Right now, at this stage in 2018, the RCMP so far has intercepted—

     On a point of order, Mr. Chair, I'm happy to hear Ms. Kwan continue. I'm a little bit confused as to whether or not she's proposing to amend the amended motion to make it her motion. She read out her motion, and it's not the same as Ms. Rempel's as amended by Mr. Maguire. I just want to make sure I'm following the debate.

    If she could clarify that, then I would better understand what she's....

    Procedurally, this is very difficult, because we're in the midst of a debate on an amendment to a motion. Giving notice of motion during that debate is a grey area, which I've checked on. I ruled that it was not appropriate at the last meeting. I still agree it's not appropriate. I would prefer that the member make a subamendment to the amendment to get her motion in, to have her wording in if she wants it. It would be appropriate to amend that.

    I think it would be better to do that, but she has the right to amend the amendment if she would like to make it closer to her wording. However, there's overlap in these two motions, so the committee will have to sort that out and decide which venue is the best place to sort out that discussion.

    Ms. Kwan.

    Thank you, Mr. Chair.

    Actually, I did not move my notice of motion. I was simply making a point that I would have, on Tuesday, and I was putting the notice on motion that I would have put on record. I was moving into the discussion to say that the amendment and that of the main motion before us are very similar in intent to what I wanted to accomplish. That was really the point I wanted to make, if members were listening carefully, Mr. Chair.

    On this point, Mr. Chair, I was saying that back in 2017, last year, the irregular asylum seeker numbers were at 20,593. For 2018, for January and February, the RCMP have intercepted 3,082 individuals to date, of which 2,944 were in Quebec, Mr. Chair. Those are the numbers that are available before us. I do think we do have a situation in which it would be much better for the government to devise a plan on how to go forward to address this issue.

    I do think it is absolutely essential that resources be provided to the communities on the ground that are dealing with this situation.

    I do take issue, Mr. Chair, with the wording in the main motion that says, I believe, “illegal asylum seekers”. I take issue with that. I believe the appropriate term is “irregular”, Mr. Chair. I want to state that very clearly on the record.

    In the comments that....

    On a point of order, do you want to then amend the amendment to make it “irregular”?

     I thank the member very much for her intervention. There may be a number of amendments that I would like to make to the motion. I will be considering that. I will do that at the conclusion of my comments, Mr. Chair.

    On the issue around this, I do think that we need to come up with some sort of strategy. I don't think this is good for anyone. To be frank, what I'm most fearful of is the people out there who want to fan the fear. They will say that things are so out of control that we need to close our borders.

    In some ways, the suggestion of declaring the entire border as a safe third country agreement application is like us trying to close the border. It is as though we are saying there is this invisible wall. We are forcing people to find alternative ways to try to get entry to safety, risking life and limb. This is happening. That is why people are coming through the forests and so on, and endangering their lives. That process is disruptive for the communities that are receiving these individuals.

    Canada has signed onto an agreement internationally, saying that we would receive asylum seekers, that they are entitled to come here, and that they are absolutely within their legal rights to do that. That's why we have a process in place to process these inland asylum seekers once they cross over. That's why when they arrive they are not arrested and thrown in jail. They actually go through the process of making an application.

    We have always done this, by the way. That has always been Canada's history, and I'm so proud that this has been Canada's history. I guess it has not been since the beginning of Canada, but it has been our practice for a very long time.

    To that point, because of the safe third country agreement, we are forcing people to come through the border at these irregular crossings, and that is why we have the situation before us.

    There are a number of mechanisms that I think the government can look at to see how we can address this issue.

    In my view, first and foremost, we need to look at how we can ensure that people's safety and the community's safety are addressed, how there can be an orderly fashion with the asylum seekers as they cross over into Canada. Suspending the safe third country agreement would be one approach to going forward with that. Of course, there are other possibilities as well. The purpose of the study would be to do exactly that, to examine different opportunities to say how this should be properly handled.

    From that perspective, as my colleague mentioned, it may well be that we might have different reasons for thinking the study should be done, or different approaches to how to handle the situation, or even ways in which we define the situation. My Conservative friends continue to use the word “illegal”, whereas I would like to use the word “irregular”, for example. I may have a different approach to how to devise a plan. I hope there will be opportunities to work collaboratively with government members to devise a plan that would work for everyone.

     I think the government members share my interests in reinforcing Canada's standing in the global community, to show that we are a compassionate country, that we have open borders. As the Prime Minister himself has indicated on the global stage, Canada welcomes this diversity.

    We need to find a way to move forward on this instead of continuing with the current situation we have. The longer we do not study this issue, the longer we do not come up with a plan, the more oxygen we provide to fuel the fire of the people who want to fearmonger, who want to create an environment that paints a picture of what I hope Canada is not.

    A voice: Hear, hear!

    Ms. Jenny Kwan: This is important work, and I will support it. To that end, I would like to make a subamendment. I do disagree with the word “illegal” being used and I would like to amend that to—

    We will have to deal with the amendment first, because your subamendment does not relate to the amendment. I get it. You want a second amendment on the body of the motion.

     Okay. I will simply state this so that you will know—

    We'll expect it.

    —and then when we get to that moment, we can actually deal with that. I would like to make that amendment at the appropriate time.

    The other amendment I would like to make also, though, is this component, Mr. Chair.

    Let me just find it, please....

    On a point of order, Mr. Chair, I think we have to deal with the first amendment before another amendment is made. Is that correct?

    Sure.

    I would appreciate it if the members would all keep their discussion on the subamendment—

    The amendment.

    —or the amendment—

    Hon. Michelle Rempel: The first amendment.

    The Chair: —the only amendment—which deals with the timing of the study.

    Okay. I'm happy to do that, Mr. Chair. I will, then, at the appropriate time....

    Well, I'll just state this. At the appropriate time, I would like to make an amendment to say that the study should also examine the impact of these increased asylum claims on the RCMP, CBSA, IRCC, the IRB, NGOs, and the provinces that provide settlement services in areas where these crossings are more frequent.

    I won't move it at this point, Mr. Chair, but I will at the appropriate time.

    Mr. Maguire, you requested to speak on the motion. We now have the amendment. Would you still like to speak on the amendment?

    The only follow-up I would have, Mr. Chair, is that this is tremendously important to the province of Manitoba as well. There's been a load of illegal immigrants over the last year still coming into Manitoba. It's not just the Quebec border crossing that's involved here, although it is the most extensive misuse of the system we have today. With all due respect, it's still an illegal process, or I believe it is. Even some of the government members have referred to that in committee before.

    I just want to say that I will continue to support it and move forward on the amendment.

    I have Mr. Whalen on the list.

    Would you like to speak on the amendment to the motion? If not, that is fine.

    No, no; I think we already studied this in the fall, and I look forward to the Minister of Public Safety and the Minister of Citizenship and Immigration implementing their plan for this year.

    My view on this should be pretty obvious.

    Seeing nobody on the list, we now have the question on the amendment.

    Could I have it read, or at least stated?

    Mr. Maguire.

    Yes, Mr. Chair. I'd just like to clarify what I had made...in the amendment before: that is, that we move forward immediately with the motion that's been put forward. I think it's extremely important that we move forward immediately and that the report back to the committee be done by the end of the first week of June.

    That's the report back to the House.

    To the House, yes.

    Okay.

     So the amendment is to give a timeline; that we do it immediately; that the committee study this issue immediately; and that it report before the House rises.

    (Amendment negatived [See Minutes of Proceedings])

    We go back to the main motion. I believe Ms. Kwan has a couple of amendments she'd like to make to it.

    Yes. Thank you very much.

    My first amendment, Mr. Chair, is that I'd like to amend the word “illegal” in the main motion. I'd like to amend that to “irregular”.

    That's my first one. I guess you'll vote on that first and then we'll come to my second one.

    Sure.

    Any discussion? Seeing none, all in favour of the amendment?

    (Amendment agreed to )

    The Chair: Ms. Kwan, I believe you have another amendment.

    Yes. Thank you very much, Mr. Chair.

    I'd like to add to the main motion this component: that the study examine the impact of these increased asylum claims on the RCMP, CBSA, IRCC, the IRB, NGOs, and the provinces that provide settlement services in areas where these crossings are more frequent.

    I'm not intending to speak to it. I think it's quite self-explanatory, Mr. Chair.

     The committee can vote to approve an amendment and defeat the motion as well, if they want to.

    (Amendment negatived [See Minutes of Proceedings])

    The Chair: We come to the motion now, as amended, with the one amendment that was agreed to.

    (Motion as amended negatived)

    The Chair: Ms. Kwan.

    Thank you very much, Mr. Chair.

    On process, we are still not in our business meeting. Remember, we are in the first half of the meeting.

    I have a point of clarification, Mr. Chair. Do you require us to go in camera for the meeting?

    I'm next on the list.

    I just raise a point of clarification just to find out what—

    I couldn't give Ms. Kwan the floor because I have Ms. Alleslev on the list.

     We're kind of between two meetings right now, but Ms. Alleslev, you have the floor.

    I wonder if I could move that we go to the next part of our meeting.

    Sure.

    Ms. Kwan.

    I wonder if before we do that, Mr. Chair, I may have one minute to put on the public record two notices of motion. It will take less than one minute to put those on the record. My only intent is simply to put them on the public record.

    Ms. Alleslev moved that, right?

    We have a motion now on the floor, which is to move to committee business. I would like to deal with that one.

    Would that be in camera?

    It would be in camera. That's our normal way of doing it.

    Okay. The motion to move to the in camera portion of the meeting is not in camera, because the motion on the table right now is—

    Right, yes.

    I'm just checking. I'm trying to keep up.

    I just remind all members that we'll have many more meetings in public to offer our motions and notices of motion.

    I could—

    No, that's fine. That motion is fine.

    Now we're going to debate the motion that we continue on our agenda and move into a business meeting in camera.

    Ms. Kwan.

    Mr. Chair, I would ask Ms. Alleslev to take the following into consideration, that she forestall that motion for just one minute so I can actually put on the public record the notices of motion. It will take a minute for me to read these motions into the record, and then we can come right back to this.

    I would need unanimous consent for that. It's not within Ms. Alleslev's ability right now to do that, but if I had unanimous consent we could delay this for a moment and hear those motions.

    Some hon. members: Agreed.

    Thank you very much. I really appreciate that.

    With that, I will just very quickly put these notices of motion on the public record, Mr. Chair.

    If you could just give that in writing to the clerk it would be helpful. We'll get it on the record, but it would be helpful because you were reading quickly.

    I would be happy to do that at the conclusion. I'm trying to do it quickly so as not to spend too much time. My second notice of motion, Mr. Chair, is:

    Received. Those go into the record.

    We have to deal with this motion, though. We have Ms. Alleslev's motion to proceed to committee business.

    (Motion agreed to)

    The Chair: Can we suspend for one minute while I go to the washroom?

     No.

    [Proceedings continue in camera]