Jul 28, 2009 by Nicholas Kohler, Macleans.ca

Conservatives—especially those with Reform roots—have always disliked the Supreme Court’s 1985 Singh decision. It ruled that the Charter of Rights and Freedoms applies not just to Canadians, but to anyone who steps foot in Canada—even foreigners who arrive illegally and file refugee claims. Because the ruling specifically required that asylum seekers be granted oral hearings, it lead to the creation of the Immigration and Refugee Board, an independent, quasi-judicial body that now determines who does and doesn’t warrant our protection.

Last week, Jason Kenney, the minister of immigration, mentioned that it was high time that Canada give its refugee system a makeover. The topic came up while he was fielding questions about the federal government’s controversial decision to slap visa requirements on Czech and Mexican nationals travelling to Canada, a move made in response to the record number of people from both countries who’ve filed refugee claims here in recent years. It wasn’t the first time Kenney has called for reform.

In a letter to the editor published in the National Post shortly after 9/11, Kenney defended his then-boss, Canadian Alliance leader Stockwell Day, against accusations he would not pursue a robust policy toward bogus asylum seekers “for fear of being branded racist.” Not true, Kenney wrote. Indeed, using language that echoed Reform party founder Preston Manning’s earlier criticism that Singh tread upon the “prerogatives of Parliament,” he noted that the Alliance had consistently proposed solutions such as “the detention of all undocumented arrivals until their identity is verified,” as well as “overriding the Singh decision” and developing a system that helps “legitimate” refugees, “rather than lawbreakers and queue-jumpers.”

Those were heady, post-Sept. 11 days; that was the Kenney of the Canadian Alliance. Today, he is a Conservative minister, handed the immigration portfolio last fall after a successful stint unfurling the Tories’ newly festive multiculturalism banner, a job that saw him glad-handing voters whose support has traditionally gone to the Liberals. Still, in discussing changes he’d like to make to Canada’s current refugee system, his language is strikingly similar to that old, yellowing letter to the editor—with a subtle change in emphasis. “I’m the minister responsible for over 900,000 people around the world who are patiently waiting in the queue to come to Canada, on average taking five-plus years to arrive here as permanent residents,” he told Maclean’s. “I cannot tolerate a situation where they see people simply getting a plane ticket, arriving here, saying the magic word ‘refugee,’ getting quasi-landed status, getting a work permit and/or welfare benefits. That is an insult to the millions of people who aspire to come to Canada legally.”

As it stands now, Kenney argues, Canada’s refugee system creates “a de facto two-tier immigration system: a slow one for law-abiders and a fast one for lawbreakers.” Kenney appears to have hit upon a different approach to assailing Canada’s asylum system, one that maintains his old unease with Singh but that at the same time appeals to the very constituency that that hardline stance once risked alienating: new Canadians.

The criticisms of Canada’s refugee system are well known—that it is overgenerous, accepts applications from countries with good human rights records, and that its convoluted procedures offer too many rejected claimants too many chances to remain in Canada for too long. Ours is one of only two refugee systems in the world that begins with an oral hearing and, unlike most European systems, doesn’t maintain a list of countries from which applicants won’t be heard (the U.S., for example, was a top-10 source country for refugee claimants in 2007 and 2008). Although it’s rare, rejected claimants who apply to remain here on humanitarian and compassionate grounds or because the situation at home has worsened can prolong their Canadian sojourn by 10 years or more. “The system can be used and abused by anybody with a good lawyer,” says the Fraser Institute’s Martin Collacott.

Then there’s the issue of the adjudicators who process these claims—the members of the Immigration and Refugee Board (IRB)—who too often are selected as much for their political connections as for their credentials. (Recall Steve Ellis, a former Toronto city councillor and Liberal IRB appointee, who gained infamy for allegedly offering to approve a South Korean woman’s claim in exchange for sex; the matter is still before the courts.) Determining how adjudicators are selected is itself a fraught process. When former immigration minister Diane Finley last rejigged that system in 2007, then-IRB chair Jean-Guy Fleury resigned over concerns the changes would further politicize things. His departure was followed by the dramatic leave-taking of five of his colleagues.

The latest fracas over visas is just more bad news for an already troubled system. Ordering the visa imposition for Czechs and Mexicans, Kenney says, wasn’t easy: “I take no joy in the difficult decision we had to make.” Nor have the reprisals been much fun. Mexico has slapped visa requirements on our diplomats. The Czech Republic recalled its ambassador and agitated for the European Union to hit us back. Sweden, which currently holds the EU’s rotating presidency, mused that Canadians visiting Europe should also be required to apply for visas.

That’s unlikely to happen, Kenney argues, adding that, given the numbers, Canada “had no option” but to force the issue. The number of Mexican refugee claimants applying to Canada has surged from 1,649 in 2001 to 8,110 last year, and we already have 6,815 in 2009. The jump in Czech claimants is even more harrowing, with 85 in 2007—the year Canada lifted its previous visa requirement on the country—858 last year and 1,926 as of last month. Kenney describes these asylum seekers as “bogus refugee claimants,” language that’s prompted a group of Toronto Roma—the vast majority of Czech claimants are Roma—to announce they’ll sue him for interfering in IRB independence.

All these troubles Kenney lays on the doorstep of Canada’s faltering refugee system: “This is the inevitable consequence of having an asylum system that’s too easy to abuse,” he says. “At the end of the day, we need a system that complies with our Charter of Rights and our international obligations, that provides meaningful and quick protection to real victims, but that stops the incentive for bogus claimants to jump the queue.” Foreign government officials frequently tell him Canada is too easy a mark. That’s created a huge increase in claimants, numbers that are now outstripping the IRB’s capacity to process them, he argues. The IRB is funded to handle 25,000 decisions annually; last year there were almost 38,000 claims. “This,” says Kenney, “has everything to do with a system that arguably incentivizes false claims.”

Such talk has generated consternation among immigration lawyers and refugee advocates, who worry the Tories are preparing to scrap the IRB altogether. Kenney’s recent suggestion that Canada look to Britain’s system as an “interesting reference point” further leads them to believe the Tories would like to replace IRB adjudicators with public servants, undermining the system’s independence and, arguably, its ability to serve the Singh decision. In speaking with Maclean’s, Kenney refused to get specific on possible changes to the system but said of the British system that it has “disincentivized false claimants—i.e. economic migrants—from trying to jump the queue” and thus dramatically reduced the number of claimants, period.

Many believe the Conservatives have paved the way for a new system by deliberately neglecting the IRB. For a period of 18 months, between 2006 and 2008, the Tories only grudgingly appointed adjudicators to the board, leading to a massive vacancy rate that hindered its capacity to process applicants. In April, auditor general Sheila Fraser took note of the trend, pointing out that as of March 2008, only 106 of 164 IRB positions were occupied. Understaffing pushed a manageable inventory of claims—21,000 in 2005— to a record-breaking backlog of 60,823 now. Process times of just under 12 months in 2006 now stretch to almost 18. “To prevent abuse of our immigration system,” Fraser said, “it is important that a refugee claim not be perceived as providing an automatic stay in Canada for a significant period of time.”

Though the system has never been perfect, says University of Toronto law professor and former board member Audrey Macklin, the Tories have “proceeded to break it, then blamed asylum seekers for the fact that it was broken and are now using that as an excuse, as I understand it, to dismantle the system.” Kenney rejects such talk. “The tinfoil hat brigade is suggesting that the government nefariously refused to make appointments to create a backlog,” he says. He admits the Tories were slow to name members, a situation that “did lead to a reduction in processing capacity,” but maintains that was only due to Finley’s revamp. Even if they’d continued to staff the IRB at a normal rate, “we would have had a backlog of 45,000 rather than 60,000,” says Kenney, who adds of critics: “They should take off their tinfoil hats and deal with reality.”

Not everyone buys that. Peter Showler, a former IRB chair and now director of the University of Ottawa’s Refugee Forum, notes that the government is unlikely to push through any changes to the refugee system before a federal election, widely expected this fall. He speculates that by starving the board of resources, then possibly tabling an overhaul, the Tories are laying the groundwork for “a refugee issue platform for the election that puts them in a position where they’re able to say they’re going to get tough on these problematic refugees.” The gambit, he believes, would create a useful wedge issue for the Tories. But is Canada’s refugee system a good campaign platform? Kenney demurs: “If it were, maybe some party would have campaigned on it before now. I don’t think so—I think most people have regarded this as a really difficult issue to deal with.”

Still, Kenney may have found a way. If his cohorts once risked exposing themselves to charges of race-baiting in past attempts to revisit the Singh decision and its impact on Canada’s refugee system, the situation today is greatly changed. Perhaps there’s a constituency hungry to hear about such reform. “I know the vast majority of new Canadians feel that this is fundamentally unfair,” says Kenney. “That may sound counterintuitive to some people, but in point of fact, if you’ve waited for five or six years—and moreover, if you’re waiting now for five or six or seven years for sponsored relatives to come to the country legally—you get a little bit frustrated with the folks who just wander off the plane and get their work permit.”