The Strong Borders Act? with Kate Robertson and Adam Sadinsky

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On this two-part episode of Uncommons, Nate digs into Bill C-2 and potential impacts on privacy, data surveillance and sharing with US authorities, and asylum claims and refugee protections.

In the first half, Nate is joined by Kate Robertson, senior researcher at the University of Toronto’s Citizen Lab. Kate’s career has spanned criminal prosecutions, regulatory investigations, and international human rights work with the United Nations in Cambodia. She has advocated at every level of court in Canada, clerked at the Supreme Court, and has provided pro bono services through organizations like Human Rights Watch Canada. Her current research at Citizen Lab examines the intersection of technology, privacy, and the law.

In part two, Nate is joined by Adam Sadinsky, a Toronto-based immigration and refugee lawyer and co-chair of the Canadian Association of Refugee Lawyers’ Advocacy Committee. Adam has represented clients at every level of court in Canada, including the Supreme Court, and was co-counsel in M.A.A. v. D.E.M.E. (2020 ONCA 486) and Canadian Council for Refugees v. Canada (2023 SCC 17).

Further Reading:

Unspoken Implications A Preliminary Analysis of Bill C-2 and Canada’s Potential Data-Sharing Obligations Towards the United States and Other Countries - Kate Robertson, Citizen Lab

Kate Robertson Chapters:

00:00 Introduction & Citizen Lab

03:00 Bill C-2 and the Strong Borders Act

08:00 Data Sharing and Human Rights Concerns

15:00 The Cloud Act & International Agreements

22:00 Real-World Examples & Privacy Risks

28:00 Parliamentary Process & Fixing the Bill

Adam Sadinsky Chapters:

33:33 Concerns Over Asylum Eligibility in Canada

36:30 Government Goals and Fairness for Refugee Claimants

39:00 Changing Country Conditions and New Risks

41:30 The Niagara Falls Example & Other Unfair Exclusions

44:00 Frivolous vs. Legitimate Claims in the Refugee System

47:00 Clearing the Backlog with Fair Pathways

50:00 Broad Powers Granted to the Government

52:00 Privacy Concerns and Closing Reflections

Part 1: Kate Robertson

Nate Erskine-Smith

00:00-00:01

Kate, thanks for joining me.

Kate Robertson

00:01-00:01

Thanks for having me.

Nate Erskine-Smith

00:02-00:15

So I have had Ron Debert on the podcast before. So for people who really want to go back into the archive, they can learn a little bit about what the Citizen Lab is. But for those who are not that interested, you’re a senior researcher there. What is the Citizen Lab?

Kate Robertson

00:16-01:00

Well, it’s an interdisciplinary research lab based at University of Toronto. It brings together researchers from a technology standpoint, political science, lawyers like myself and other disciplines to examine the intersection between information and communication technologies, law, human rights, and global security. And over time, it’s published human rights reports about some of the controversial and emerging surveillance technologies of our time, including spyware or AI-driven technologies. And it’s also really attempted to produce a thoughtful research that helps policymakers navigate some of these challenges and threats.

Nate Erskine-Smith

01:01-02:50

That’s a very good lead into this conversation because here we have Bill C-2 coming before Parliament for debate this fall, introduced in June, at the beginning of June. And it’s called the Strong Borders Act in short, but it touches, I started counting, it’s 15 different acts that are touched by this omnibus legislation. The government has laid out a rationale around strengthening our borders, keeping our borders secure, combating transnational organized crime, stopping the flow of illegal fentanyl, cracking down on money laundering, a litany of things that I think most people would look at and say broadly supportive of stopping these things from happening and making sure we’re enhancing our security and the integrity of our immigration system and on. You, though, have provided some pretty thoughtful and detailed rational legal advice around some of the challenges you see in the bill. You’re not the only one. There are other challenges on the asylum changes we’re making. There are other challenges on lawful access and privacy. You’ve, though, highlighted, in keeping with the work of the Citizen Lab, the cross-border data sharing, the challenges with those data sharing provisions in the bill. It is a bit of a deep dive and a little wonky, but you’ve written a preliminary analysis of C2 and Canada’s potential data sharing obligations towards the U.S. and other countries, unspoken implications, and you published it mid-June. It is incredibly relevant given the conversation we’re having this fall. So if you were to at a high level, and we’ll go ahead and some of the weeds, but at a high level articulate the main challenges you see in the legislation from the standpoint that you wrote in unspoken implications. Walk us through them.

Kate Robertson

02:51-06:15

Well, before C2 was tabled for a number of years now, myself and other colleagues at the lab have been studying new and evolving ways that we’re seeing law enforcement data sharing and cross-border cooperation mechanisms being put to use in new ways. We have seen within this realm some controversial data sharing frameworks under treaty protocols or bilateral agreement mechanisms with the United States and others, which reshape how information is shared with law enforcement in foreign jurisdictions and what kinds of safeguards and mechanisms are applied to that framework to protect human rights. And I think as a really broad trend, what is probably most, the simplest way to put it is that what we’re really seeing is a growing number of ways that borders are actually being exploited to the detriment of human rights standards. Rights are essentially falling through the cracks. This can happen either through cross-border joint investigations between agencies in multiple states in ways that essentially go forum shopping for the laws and the most locks, that’s right. You can also see foreign states that seek to leverage cooperation tools in democratic states in order to track, surveil, or potentially even extradite human rights activists and dissidents, journalists that are living in exile outside their borders. And what this has really come out of is a discussion point that has been made really around the world that if crime is going to become more transient across borders, that law enforcement also needs to have a greater freedom to move more seamlessly across borders. But what often is left out of that framing is that human rights standards that are really deeply entrenched in our domestic law systems, they would also need to be concurrently meaningful across borders. And unfortunately, that’s not what we’re seeing. Canada is going to be facing decisions around this, both within the context of C2 and around it in the coming months and beyond, as we know that it has been considering and in negotiation around a couple of very controversial agreements. One of those, the sort of elephant in the room, so to speak, is that the legislation has been tabled at a time where we know that Canada and the United States have been in negotiations for actually a couple of years around a potential agreement called the CLOUD Act, which would quite literally cede Canada’s sovereignty to the United States and law enforcement authorities and give them really a blanket opportunity to directly apply surveillance orders onto entities, both public and private in Canada?

Nate Erskine-Smith

06:16-07:46

Well, so years in the making negotiations, but we are in a very different world with the United States today than we were two years ago. And I was just in, I was in Mexico City for a conference with parliamentarians across the Americas, and there were six Democratic congressmen and women there. One, Chuy Garcia represents Chicago district. He was telling me that he went up to ICE officials and they’re masked and he is saying, identify yourself. And he’s a congressman. He’s saying, identify yourself. What’s your ID? What’s your badge number? They’re hiding their ID and maintaining masks and they’re refusing to identify who they are as law enforcement officials, ostensibly refusing to identify who they are to an American congressman. And if they’re willing to refuse to identify themselves in that manner to a congressman. I can only imagine what is happening to people who don’t have that kind of authority and standing in American life. And that’s the context that I see this in now. I would have probably still been troubled to a degree with open data sharing and laxer standards on the human rights side, but all the more troubling, you talk about less democratic jurisdictions and authoritarian regimes. Well, isn’t the U.S. itself a challenge today more than ever has been? And then shouldn’t we maybe slam the pause button on negotiations like this? Well, you raise a number of really important points. And I think that

Kate Robertson

07:47-09:54

there have been warning signs and worse that have long preceded the current administration and the backsliding that you’re commenting upon since the beginning of 2025. Certainly, I spoke about the increasing trend of the exploitation of borders. I mean, I think we’re seeing signs that really borders are actually, in essence, being used as a form of punishment, even in some respects, which I would say it is when you say to someone who would potentially exercise due process rights against deportation and say if you exercise those rights, you’ll be deported to a different continent from your home country where your rights are perhaps less. And that’s something that UN human rights authorities have been raising alarm bells about around the deportation of persons to third countries, potentially where they’ll face risks of torture even. But these patterns are all too reminiscent of what we saw in the wake of 9-11 and the creation of black sites where individuals, including Canadian persons, were detained or even tortured. And really, this stems from a number of issues. But what we have identified in analyzing potential cloud agreement is really just the momentous decision that the Canadian government would have to make to concede sovereignty to a country which is in many ways a pariah for refusing to acknowledge extraterritorial international human rights obligations to persons outside of its borders. And so to invite that type of direct surveillance and exercise of authority within Canada’s borders was a country who has refused for a very long time, unlike Canada and many other countries around the world, has refused to recognize through its courts and through its government any obligation to protect the international human rights of people in Canada.

Nate Erskine-Smith

09:56-10:21

And yet, you wrote, some of the data and surveillance powers in Bill C-2 read like they could have been drafted by U.S. officials. So you take the frame that you’re just articulating around with what the U.S. worldview is on this and has been and exacerbated by obviously the current administration. But I don’t love the sound of it reading like it was drafted by American

Kate Robertson

10:22-12:43

officials. Well, you know, it’s always struck me as a really remarkable story, to be frank. You know, to borrow Dickens’ tale of two countries, which is that since the 1990s, Canada’s Supreme Court has been charting a fundamentally different course from the constitutional approach that’s taken the United States around privacy and surveillance. And it really started with persons looking at what’s happening and the way that technology evolves and how much insecurity people feel when they believe that surveillance is happening without any judicial oversight. And looking ahead and saying, you know what, if we take this approach, it’s not going to go anywhere good. And that’s a really remarkable decision that was made and has continued to be made by the court time and time again, even as recently as last year, the court has said we take a distinct approach from the United States. And it had a lot of foresight given, you know, in the 1990s, technology is nowhere near what it is today. Of course. And yet in the text of C2, we see provisions that, you know, I struggle when I hear proponents of the legislation describe it as balanced and in keeping with the Charter, when actually they’re proposing to essentially flip the table on principles that have been enshrined for decades to protect Canadians, including, for example, the notion that third parties like private companies have the authority to voluntarily share our own. information with the police without any warrant. And that’s actually the crux of what has become a fundamentally different approach that I think has really led Canada to be a more resilient country when it comes to technological change. And I sometimes describe us as a country that is showing the world that, you know, it’s possible to do both. You can judicially supervise investigations that are effective and protect the public. And the sky does not fall if you do so. And right now we’re literally seeing and see to something that I think is really unique and important made in Canada approach being potentially put on the chopping block.

Nate Erskine-Smith

12:44-13:29

And for those listening who might think, okay, well, at a high level, I don’t love expansive data sharing and reduced human rights protections, but practically, are there examples? And you pointed to in your writing right from the hop, the Arar case, and you mentioned the Supreme Court, but they, you know, they noted that it’s a chilling example of the dangers of unconditional information sharing. And the commission noted to the potentially risky exercise of open ended, unconditional data sharing as well. But that’s a real life example, a real life Canadian example of what can go wrong in a really horrible, tragic way when you don’t have guardrails that focus and protect human rights.

Kate Robertson

13:31-14:56

You’re right to raise that example. I raise it. It’s a really important one. It’s one that is, I think, part of, you know, Canada has many commendable and important features to its framework, but it’s not a perfect country by any means. That was an example of just information sharing with the United States itself that led to a Canadian citizen being rendered and tortured in a foreign country. Even a more recent example, we are not the only country that’s received requests for cooperation from a foreign state in circumstances where a person’s life is quite literally in jeopardy. We have known from public reporting that in the case of Hardeep Najjar, before he was ultimately assassinated on Canadian soil, an Interpol Red Notice had been issued about him at the request of the government of India. And the government had also requested his extradition. And we know that there’s a number of important circumstances that have been commented upon by the federal government in the wake of those revelations. And it’s provoked a really important discussion around the risks of foreign interference. But it is certainly an example where we know that cooperation requests have been made in respect of someone who’s quite literally and tragically at risk of loss of life.

Nate Erskine-Smith

14:57-16:07

And when it comes to the, what we’re really talking about is, you mentioned the Cloud Act. There’s also, I got to go to the notes because it’s so arcane, but the second additional protocol to the Budapest Convention. These are, in that case, it’s a treaty that Canada would ratify. And then this piece of legislation would in some way create implementing authorities for. I didn’t fully appreciate this until going through that. And I’d be interested in your thoughts just in terms of the details of these. And we can make it as wonky as you like in terms of the challenges that these treaties offer. I think you’ve already articulated the watering down of traditional human rights protections and privacy protections we would understand in Canadian law. But the transparency piece, I didn’t fully appreciate either. And as a parliamentarian, I probably should have because there’s... Until reading your paper, I didn’t know that there was a policy on tabling of treaties That really directs a process for introducing treaty implementing legislation. And this process also gets that entirely backwards.

Kate Robertson

16:09-17:01

That’s right. And, you know, in researching and studying what to do with, you know, what I foresee is potentially quite a mess if we were to enter into a treaty that binds us to standards that are unconstitutional. You know, that is a diplomatic nightmare of sorts, but it’s also one that would create, you know, a constitutional entanglement of that’s really, I think, unprecedented in Canada. But nevertheless, that problem is foreseen if one or both of these were to go ahead. And I refer to that in the cloud agreement or the 2AP. But this policy, as I understand it, I believe it was tabled by then Foreign Affairs Minister Maxime Bernier, as he was at the time, by Prime Minister Harper’s government.

Nate Erskine-Smith

17:02-17:04

He’s come a long way.

Kate Robertson

17:07-18:12

I believe that the rationale for the policy was quite self-evident at the time. I mean, if you think about the discussions that are happening right now, for example, in Quebec around digital sovereignty and the types of entanglements that U.S. legal process might impact around Quebec privacy legislation. Other issues around the AI space in Ontario or our health sector in terms of technology companies in Ontario. These treaties really have profound implications at a much broader scale than the federal government and law enforcement. And that’s not even getting to Indigenous sovereignty issues. And so the policy is really trying to give a greater voice to the range of perspectives that a federal government would consider before binding Canada internationally on behalf of all of these layers of decision making without perhaps even consulting with Parliament First.

Nate Erskine-Smith

18:12-19:15

So this is, I guess, one struggle. There’s the specific concerns around watering down protections, but just on process. This just bothered me in particular because we’re going to undergo this process in the fall. And so I printed out the Strong Borders Act, Government of Canada Strengthens Border Security and the backgrounder to the law. And going through it, it’s six pages when I print it out. And it doesn’t make mention of the Budapest Convention. It doesn’t make mention of the Cloud Act. It doesn’t make mention of any number of rationales for this legislation. But it doesn’t make mention that this is in part, at least, to help implement treaties that are under active negotiation. not only gets backwards the policy, but one would have thought, especially I took from your paper, that the Department has subsequently, the Justice Department has subsequently acknowledged that this would in fact help the government implement these treaties. So surely it should

Kate Robertson

19:15-19:57

be in the background. I would have thought so. As someone that has been studying these treaty frameworks very carefully, it was immediately apparent to me that they’re at least relevant. It was put in the briefing as a question as to whether or not the actual intent of some of these new proposed powers is to put Canada in a position to ratify this treaty. And the answer at that time was yes, that that is the intent of them. And it was also stated that other cooperation frameworks were foreseeable.

Nate Erskine-Smith

19:59-20:57

What next? So here I am, one member of parliament, and oftentimes through these processes, we’re going to, there’s the objective of the bill, and then there’s the details of the bill, and we’re going to get this bill to a committee process. I understand the intention is for it to be a pretty fulsome committee hearing, and it’s an omnibus bill. So what should happen is the asylum components should get kicked to the immigration committee. The pieces around national security should obviously get kicked to public safety committee, and there should be different committees that deal with their different constituent elements that are relevant to those committees. I don’t know if it will work that way, but that would be a more rational way of engaging with a really broad ranging bill. Is there a fix for this though? So are there amendments that could cure it or is it foundationally a problem that is incurable?

Kate Robertson

20:58-21:59

Well, I mean, I think that for myself as someone studying this area, it’s obvious to me that what agreements may be struck would profoundly alter the implications of pretty much every aspect of this legislation. And that stems in part from just how fundamental it would be if Canada were to cede its sovereignty to US law enforcement agencies and potentially even national security agencies as well. But obviously, the provisions themselves are quite relevant to these frameworks. And so it’s clear that Parliament needs to have the opportunity to study how these provisions would actually be used. And I am still left on knowing how that would be possible without transparency

Nate Erskine-Smith

22:00-22:05

about what is at stake in terms of potential agreements. Right. What have we agreed to? If this

Kate Robertson

22:05-24:57

is implementing legislation what are we implementing certainly it’s a significantly different proposition now even parking the international data sharing context the constitutional issues that are raised in the parts of the bill that i’m able to study within my realm of expertise which is in the context of omnibus legislation not the entire bill of course yeah um but it’s hard to even know where to begin um the the the powers that are being put forward you know i kind of have to set the table a bit to understand to explain why the table is being flipped yeah yeah we’re at a time where um you know a number of years ago i published about the growing use of algorithms and AI and surveillance systems in Canada and gaps in the law and the need to bring Canada’s oversight into the 21st century. Those gaps now, even five years later, are growing into chasms. And we’ve also had multiple investigative reports by the Privacy Commissioner of Canada being sent to Parliament about difficulties it’s had reviewing the activities of law enforcement agencies, difficulties it’s had with private sector companies who’ve been non-compliant with privacy legislation, and cooperating at all with the regulator. And we now have powers being put forward that would essentially say, for greater certainty, it’s finders keepers rules. Anything in the public domain can be obtained and used by police without warrant. And while this has been put forward as a balancing of constitutional norms, the Supreme Court has said the opposite. It’s not an all or nothing field. And in the context of commercial data brokers that are harvesting and selling our data, including mental health care that we might seek online, AI-fueled surveillance tools that are otherwise unchecked in the Canadian domain. I think this is a frankly stunning response to the context of the threats that we face. And I really think it sends and creates really problematic questions around what law enforcement and other government agencies are expected to do in the context of future privacy reviews when essentially everything that’s been happening is supposedly being green lit with this new completely un-nuanced power. I should note you are certainly not alone in these

Nate Erskine-Smith

24:57-27:07

concerns. I mean, in addition to the paper that I was talking about at the outset that you’ve written as an analyst that alongside Ron Deaver in the Citizen Lab. But there’s another open letter you’ve signed that’s called for the withdrawal of C2, but it’s led by open media. I mean, BCCLA, British Columbia Civil Liberties Association, the Canadian Civil Liberties Association, the Canadian Council for Refugees, QP, International Civil Liberties Monitoring Group, Penn Canada, the Center for Free Expression, privacy experts like Colin Bennett, who I used be on the Privacy Committee and that were pretty regular witnesses. You mentioned the Privacy Commissioner has not signed the open letter, but the Privacy Commissioner of both Canada and the Information Commissioner of Ontario, who’s also responsible for privacy. In the context of the treaties that you were mentioning, the Budapest Convention in particular, they had highlighted concerns absent updated, modernized legislation. And at the federal level, we have had in fits and starts attempts to modernize our private sector privacy legislation. But apart from a consultation paper at one point around the Privacy Act, which would apply to public sector organizations, there’s really been no serious effort to table legislation or otherwise modernize that. So am I right to say, you know, we are creating a myriad number of problems with respect to watering down privacy and human rights protections domestically and especially in relation to foreign governments with relation to data of our citizens here. And we could potentially cure those problems, at least in part, if we modernize our privacy legislation and our privacy protections and human rights protections here at home. But we are, as you say, a gap to chasm. We are so woefully behind in that conversation. It’s a bit of an odd thing to pass the open-ended data sharing and surveillance piece before you even have a conversation around updating your privacy protections.

Kate Robertson

27:07-28:13

Yeah, I mean, frankly, odd, I would use the word irresponsible. We know that these tools, it’s becoming increasingly well documented how impactful they are for communities and individuals, whether it’s wrongful arrests, whether it’s discriminatory algorithms. really fraught tools to say the least. And it’s not as if Parliament does not have a critical role here. You know, in decades past, to use the example of surveillance within Quebec, which was ultimately found to have involved, you know, years of illegal activity and surveillance activities focused on political organizing in Quebec. And that led to Parliament striking an inquiry and ultimately overhauling the mandate of the RCMP. There were recommendations made that the RCMP needs to follow the law. That was an actual recommendation.

Nate Erskine-Smith

28:14-28:16

I’m sorry that it needs to be said, but yeah.

Kate Robertson

28:16-29:05

The safeguards around surveillance are about ensuring that when we use these powers, they’re being used appropriately. And, you know, there isn’t even, frankly, a guarantee that judicial oversight will enable this to happen. And it certainly provides comfort to many Canadians. But we know, for example, that there were phones being watched of journalists in Montreal with, unfortunately, judicial oversight not even that many years ago. So this is something that certainly is capable of leading to more abuses in Canada around political speech and online activity. And it’s something that we need to be protective against and forward thinking about.

Nate Erskine-Smith

29:05-29:58

Yeah, and the conversation has to hold at the same time considerations of public safety, of course, but also considerations for due process and privacy and human rights protections. These things, we have to do both. If we don’t do both, then we’re not the democratic society we hold ourselves out as. I said odd, you said irresponsible. You were forceful in your commentary, but the open letter that had a number of civil society organizations, I mentioned a few, was pretty clear to say the proposed legislation reflects little more than shameful appeasement of the dangerous rhetoric and false claims about our country emanating from the United States. It’s a multi-pronged assault on the basic human rights and freedoms Canada holds dear. Got anything else to add?

Kate Robertson

30:00-30:56

I mean, the elephant in the room is the context in which the legislation has been tabled within. And I do think that we’re at a time where we are seeing democratic backsliding around the world, of course, and rising digital authoritarianism. And these standards really don’t come out of the air. They’re ones that need to be protected. And I do find myself, when I look at some of the really un-nuanced powers that are being put forward, I do find myself asking whether or not those risks are really front and center when we’re proposing to move forward in this way. And I can only defer to experts from, as you said, hundreds of organizations that have called attention towards pretty much every aspect of this legislation.

Nate Erskine-Smith

30:57-31:44

And I will have the benefit of engaging folks on the privacy side around lawful access and around concerns around changes to the asylum claim and due process from the Canadian Association of Refugee Lawyers. But as we do see this move its way through Parliament, if we see it move its way through Parliament in the fall, if they’re recognizing that the call was for withdrawal, but also recognizing a political reality where if it is to pass, we want to make sure we are improving it as much as possible. If there are amendments along the way, if there are other people you think that I should engage with, please do let me know because this is before us. It’s an important piece of legislation. And if it’s not to be withdrawn, we better improve it as much as possible.

Kate Robertson

31:46-32:02

I appreciate that offer and really commend you for covering the issue carefully. And I really look forward to more engagement from yourself and other colleagues in parliament as legislation is considered further. I expect you will be a witness at committee,

Nate Erskine-Smith

32:02-32:06

but thanks very much for the time. I really appreciate it. Thanks for having me.

Part 2: Adam Sadinsky

Chapters:

33:33 Concerns Over Asylum Eligibility in Canada

36:30 Government Goals and Fairness for Refugee Claimants

39:00 Changing Country Conditions and New Risks

41:30 The Niagara Falls Example & Other Unfair Exclusions

44:00 Frivolous vs. Legitimate Claims in the Refugee System

47:00 Clearing the Backlog with Fair Pathways

50:00 Broad Powers Granted to the Government

52:00 Privacy Concerns and Closing Reflections

Nate Erskine-Smith

33:33-33:35

Adam, thanks for joining me.

Adam Sadinsky

33:35-33:36

Thanks for having me, Nate.

Nate Erskine-Smith

33:36-33:57

We’ve had a brief discussion about this, by way of my role as an MP, but, for those who are listening in, they’ll have just heard a rundown of all the concerns that the Citizen Lab has with data surveillance and data sharing with law enforcement around the world. You’ve got different concerns about C2 and you represent the Canadian Association of Refugee Lawyers. What are your concerns here?

Adam Sadinsky

33:57-35:31

I mean, our biggest concern with this bill is new provisions that create additional categories of folks ineligible to claim asylum in Canada. And specifically to have their hearings heard at the Immigration and Refugee Board. The biggest one of those categories is definitely, a bar on individuals making refugee claims in Canada one year after they have arrived in Canada, and that’s one year, whether they have been in Canada for that whole year or they left at some point and came back. Those folks who have been here, who came more than a year ago, if they now fear persecution and want to make a claim for refugee protection, this bill would shunt them into an inferior system where rather than having a full hearing in their day in court.

Their application will be decided by an officer of immigration, alone, sitting in the cubicle, probably, with some papers in front of them. That person is going to make an enormous decision about whether to send that person back home where they feared persecution, torture, death. Our position is that this new form of ineligibility. Is unfair. it doesn’t meet the government’s goals, as we understand them, and we share, we share the views of organizations like, Citizen Lab, that the bill should be withdrawn. There are other ways to do this, but this bill is fundamentally flawed.

Nate Erskine-Smith

35:31-35:57

Let’s talk about government goals. Those looking at the influx of temporary residents in Canada specifically, and I don’t, and I don’t wanna pick on international students, but we’ve seen a huge influx of international students just as one category example. And they’ve said, well, if someone’s been here for a year and they didn’t claim right away, they didn’t come here to claim asylum. Because they would’ve claimed within that first year, presumably, you know, what’s the problem with, uh, with a rule that is really trying to tackle this problem.

Adam Sadinsky

35:57-38:33

The issue is, I mean, Nate, you had mentioned, you know, people who had come to Canada, they didn’t initially claim and it didn’t initially claim asylum, temporary residents. What do we do about it? I wanna give a couple of examples of people who would be caught by this provision, who fall into that category. But there’s legitimate reasons why they might claim more than a year after arriving in Canada. The first is someone who came to Canada, student worker, whatever. At the time they came to Canada, they would’ve been safe going back home they didn’t have a fear of returning back home. But country conditions change and they can change quickly. The Taliban takeover of Afghanistan in 2021, was a stark example there may have been people who came to Canada as students planning to go back to Afghanistan and rebuild their country. As the bill is currently written. If there were to be a situation like that, and there will be some other Afghanistan, there will be some other situation down the line. Those people who weren’t afraid when they originally came to Canada and now have a legitimate claim, will have an inferior, process that they go through, one that is riddled with issues, examples of unfairness compared to the refugee, the regular refugee system, and a lack of protection from deportation, pending any appeal.

So that’s one category. A second category is people who were afraid of going back home when they came to Canada but didn’t need to claim asylum because they had another avenue to remain in Canada. So the government advertised, Minister Frazier was saying this often come to Canada, come as a student and there’s a well-established pathway. You’ll have a study permit, you’ll get a post-graduation work permit. This is what the government wanted. The rug has been pulled out from under many of those people. Towards the end of last year when Canada said, okay, it’s enough, too many temporary residents. But what about the temporary residents who had a fear of returning home when they came? They went through the system the “right way,” quote unquote. They didn’t go to the asylum system. they went through another path. And now they’re looking at it. They say, well, you know, I came to Canada to study, but also I’m gay and I’m from a country where, if people know about that, you know, I’ll be tortured. Maybe since they’ve been in Canada, that person in that example, they’ve been in a relationship, they’ve been posting on social media with their partner. It is very dangerous so why, why shouldn’t that person claim refugee protection through regular means?

Nate Erskine-Smith

38:33-39:06

Is this right on your read of the law as it is written right now, if someone were to come with their family when they’re a kid and they were to be in Canada for over a year and then their family were to move back to either the home country or to a different country, and, they wake up as a teenager many years later, they wake up as an adult many years later and their country’s falling apart, and they were to flee and come to Canada. By virtue of the fact they’ve been here for a year as a kid, would that preclude them from making a claim?

Adam Sadinsky

39:06-39:10

It’s even worse than that, Nate.

Nate Erskine-Smith

39:09-39:10

Oh, great.

Adam Sadinsky

39:10-39:47

In your example, the family stayed in Canada for more than a year. Yes, absolutely. That person is caught by this provision. But here’s who else would be someone comes when they’re five years old with their family, on a trip to the United States. during that trip, they decide we want to see the Canadian side of Niagara Falls. They either have a visa or get whatever visa they need, or don’t need one. They visit the falls, and at that point that they enter Canada, a clock starts ticking. That never stops ticking. So maybe they came to Canada for two hours.

Nate Erskine-Smith

39:44-39:45

Two hours and you’re outta luck.

Adam Sadinsky

39:45-39:47

They go back to the US

Nate Erskine-Smith

39:47-39:47

Oh man.

Adam Sadinsky

39:47-40:09

They never come back to Canada again. The way that the bill is written, that clock never stops ticking, right? Their country falls apart. They come back 15 years later. That person is going to have a very different kind of process that they go through, to get protection in Canada, than someone who wouldn’t be caught by this bill.

Nate Erskine-Smith

40:09-40:34

Say those are the facts as they are, that’s one category. There’s another category where I’ve come as a student, I thought there would be a pathway. I don’t really fear persecution in my home country, but I want to stay in Canada we see in this constituency office, as other constituency offices do people come with immigration help or they’ve got legitimate claims. We see some people come with help with illegitimate claims

Adam Sadinsky

40:34-42:46

We have to be very careful when we talk about categorizing claims as frivolous. There is no question people make refugee claims in Canada that have no merit. You’ll not hear from me, you’ll not hear from our organization saying that every 100% of refugee claims made in Canada, are with merit. The issue is how we determine. At that initial stage that you’re saying, oh, let’s, let’s deal quickly with frivolous claims. How do you determine if a claim is frivolous? What if someone, you know, I do a lot of appeal work, we get appeals of claims prepared by immigration consultants, or not even immigration consultants. And, you know, there’s a core of a very strong refugee claim there that wasn’t prepared properly.

Nate Erskine-Smith

42:46-42:46

Yeah, we see it too. That’s a good point

.

Adam Sadinsky

42:46-42:46

How that claim was prepared has nothing to do with what the person actually faces back home. We have to be very careful in terms of, quick negative claims, and clearing the decks of what some might think are frivolous claims. But there may be some legitimate and very strong core there. What could be done, and you alluded to this, is there are significant claims in the refugee board’s backlog that are very, very strong just based on the countries they come from or the profiles of the individuals who have made those claims, where there are countries that have 99% success rate. And that’s not because the board is super generous. It’s because the conditions in those countries are very, very bad. And so the government could implement policies and this would be done without legislation to grant pathways for folks from, for example, Eritrea 99ish percent success rate. However, the government wants to deal with that in terms of numbers, but there’s no need for the board to spend time determining whether this claim is in the 1%, that doesn’t deserve to be accepted. Our view is that 1% being accepted is, a trade off for, a more efficient system.

Nate Erskine-Smith

42:46-43:30

Similarly though, individuals who come into my office and they’ve been here for more than five years. They have been strong contributors to the community. They have jobs. They’re oftentimes connected to a faith organization. They’re certainly connected to a community based organization that is going to bat for them. There’s, you know, obviously no criminal record in many cases they have other family here. And they’ve gone through so many appeals at different times. I look at that and I go, throughout Canadian history, there have been different regularization programs. Couldn’t you kick a ton of people not a country specific basis, but a category specific basis of over five years, economic contributions, community contributions, no criminal record, you’re approved.

Adam Sadinsky

43:30-44:20

Yeah, I’d add to your list of categories, folks who are working in, professions, that Canada needs workers in. give the example of construction. We are facing a housing crisis. So many construction workers are not Canadian. Many of my clients who are refugee claimants waiting for their hearings are working in the construction industry. And the government did that, back in the COVID pandemic, creating what was, what became known as the Guardian Angels Program, where folks who were working in the healthcare sector, on the front lines, combating the pandemic, supporting, folks who needed it, that they were allowed to be taken again out of the refugee queue with a designated, pathway to permanent residents on the basis of the work and the contribution they were doing. All of these could be done.

Adam Sadinsky

44:20-45:05

The refugee system is built on Canada’s international obligations under the refugee convention, to claim refugee protection, to claim asylum is a human right. Every person in the world has the right to claim asylum. Individuals who are claiming asylum in Canada are exercising that right. Each individual has their own claim, and that’s the real value that the refugee board brings to bear and why Canada has had a gold standard. The refugee system, replicated, around the world, every individual has their day in court, to explain to an expert tribunal why they face persecution. This bill would take that away.

Nate Erskine-Smith

45:05-46:18

Yeah, I can’t put my finger on what the other rationale would be though, because why the, why this change now? Well, we have right now, a huge number over a million people who are going to eventually be without status because they’re not gonna have a pathway that was originally, that they originally thought would be there. The one frustration I have sometimes in the system is there are people who have come into my office with, the original claim, being unfounded. But then I look at it, and they’ve been here partly because the process took so long, they’ve been here for over five years. If you’ve been here for over five years and you’re contributing and you’re a member of the community, and now we’re gonna kick you out. Like your original claim might have been unfounded, but this is insane. Now you’re contributing to this country, and what a broken system. So I guess I’m sympathetic to the need for speed at the front end to ensure that unfounded claims are deemed unfounded and people are deported and legitimate claims are deemed founded, and they can be welcomed. So cases don’t continue to come into my office that are over five or over six years long where I go, I don’t even care if it was originally unfounded or not. Welcome to Canada. You’ve been contributing here for six years anyway.

Adam Sadinsky

46:18-46:33

But if I can interject? Even if the bill passes as written, each of these individuals is still going to have what’s called a pre-removal risk assessment.

Nate Erskine-Smith

46:31-46:33

They’re still gonna have a process. Yeah, exactly.

Adam Sadinsky

46:33-46:55

They’re still gonna have a process, and they’re still going to wait time. All these people are still in the system. The bill is a bit of a shell game where folks are being just transferred from one process to another and say, oh, wow. Great. Look, we’ve reduced the backlog at the IRB by however many thousand claims,

Nate Erskine-Smith

46:53-46:55

And we’ve increased the backlog in the process.

Adam Sadinsky

46:55-48:25

Oh, look at the wait time at IRCC, and I’m sure you have constituents who come into your office and say, I filed a spousal sponsorship application two and a half years ago. I’m waiting for my spouse to come and it’s taking so long. IRCC is not immune from processing delays. There doesn’t seem to be, along with this bill, a corresponding hiring of hundreds and hundreds more pro officers. So, this backlog and this number of claims is shifting from one place to another. And another point I mentioned earlier within the refugee system within the board, when a person appeals a negative decision, right? Because, humans make decisions and humans make mistakes. And that’s why we have legislative appeal processes in the system to allow for mistakes to be corrected. That appeal process happens within the board, and a person is protected from deportation while they’re appealing with a pro. With this other system, it’s different. The moment that an officer makes a negative decision on a pro that person is now eligible to be deported. CBSA can ask them to show up the next day and get on a plane and go home. Yes, a person can apply for judicial review in the federal court that does not stop their deportation. If they can bring a motion to the court for a stay of removal.

Nate Erskine-Smith

48:19-48:25

You’re gonna see a ton of new work for the federal court. You are gonna see double the work for the federal court

Adam Sadinsky

48:25-48:39

Which is already overburdened. So unless the government is also appointing many, many new judges, and probably hiring more Council Department of Justice, this backlog is going to move from one place to another.

Nate Erskine-Smith

48:39-48:41

It’s just gonna be industry whack-a-mole with the backlog.

Adam Sadinsky

48:41-48:52

The only way to clear the backlog is to clear people out of it. There’s no fair way to clear folks out of it in a negative way. So the only way to do that is positively.

Nate Erskine-Smith

48:52-49:37

In the limited time we got left, the bill also empowers the governor and council of the cabinet to cancel documents, to suspend documents. And just so I’ve got this clearer in my mind, so if, for example: say one is a say, one is a student on campus, or say one is on a, on a work permit and one is involved in a protest, and that protest the government deems to be something they don’t like. The government could cancel the student’s permit on the basis that they were involved in the protest. Is that right? The law? Not to say that this government would do that. But this would allow the government to legally do just that. Am I reading it wrong?

Adam Sadinsky

49:37-50:46

The bill gives broad powers to the government to cancel documents. I think you’re reading it correctly. To me, when I read the bill, I don’t particularly understand exactly what is envisioned. Where it would, where the government would do this, why a government would want to put this in. But you are right. I would hope this government would not do that, but this government is not going to be in power forever. When you put laws on the books, they can be used by whomever for whatever reason they can they want, that’s within how that law is drafted. You know, we saw down south, you know, the secretary of State a few months ago said, okay, we’re gonna cancel the permits of everyone from South Sudan, in the US because they’re not taking back people being deported. It’s hugely problematic. It’s a complete overreach. It seems like there could be regulations that are brought in. But the power is so broad as written in this law, that it could definitely be used, for purposes most Canadians would not support.

Nate Erskine-Smith

50:46-51:07

And, obviously that’s a worst case scenario when we think about the United States in today’s political climate. But, it’s not clear to your point what the powers are necessary for. If we are to provide additional powers, we should only provide power as much as necessary and proportionate to the goal we want to achieve. Is there anything else you want to add?

Adam Sadinsky

51:07-51:43

I just wanna touch, and I’m sure you got into a lot of these issues, on the privacy side but. The privacy issues in this bill bleed over into the refugee system with broad search powers, um, particularly requiring service providers to provide information, we are concerned these powers could be used by CBSA, for example, to ask a women’s shelter, to hand over information about a woman claiming refugee protection or who’s undocumented, living in a shelter, we have huge concerns that, you know, these powers will not just be used by police, but also by Canada Border Services and immigration enforcement. I’m not the expert on privacy issues, but we see it we see the specter of those issues as well.

Nate Erskine-Smith

51:43-52:22

That’s all the time we got, but in terms of what would help me to inform my own advocacy going forward is, this bill is gonna get to committee. I’m gonna support the bill in committee and see if we can amend it. I know, the position of CARL is withdraw. The position of a number of civil society organizations is to withdraw it. I think it’s constructive to have your voice and others at committee, and to make the same arguments you made today with me. Where you have. I know your argument’s gonna be withdrawn, you’ll say then in the alternative, here are changes that should be made. When you’ve got a list of those changes in detailed, legislative amendment form, flip them to me and I’ll share the ideas around the ministry and around with colleagues, and I appreciate the time. Appreciate the advocacy.

Adam Sadinsky

52:22-52:24

Absolutely. Thank you.

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