|REPORT OF THE COMMITTEE||TUESDAY, October 23, 2001|
The Standing Senate Committee on Social Affairs, Science and Technology
has the honour to present its
Your Committee, to which was referred Bill C-11, An Act respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger, has, in obedience to the Order of Reference of Thursday, September 27, 2001, examined the said Bill and now reports the same without amendment. Your Committee appends to this Report certain observations relating to this Bill.
of the Standing Senate Committee on Social Affairs, Science and Technology on
Bill C-11, an Act respecting immigration
to Canada and the granting of refugee protection to persons who are displaced,
persecuted or in danger
the hearings of the Standing Senate Committee on Social Affairs, Science and
Technology on Bill C-11, An Act respecting
immigration to Canada and the granting of refugee protection to persons who are
displaced, persecuted or in danger, the Committee heard from a broad range
of individuals and organizations with varying opinions about the Bill.
Committee recognizes that Bill C-11 represents a major overhaul of Canada’s
immigration and refugee protection legislation, and it will thus likely set the
standard for many years to come. The
Committee also fully appreciates that the current context in which the Bill is
being considered is one of heightened security concerns following the profoundly
tragic events of 11 September 2001 in the United States.
In this context the Committee realizes that the Bill must embody a
balance that will respect the needs and rights of individuals while
simultaneously serving the public interest particularly with respect to security
concerns and meeting Canada’s international obligations.
witnesses emphasized that an underlying and widespread problem is the lack of
resources available to effectively implement Canada’s immigration and refugee
programs. Many witnesses stated the
Bill is sufficient to address all security and border control concerns – even
given post-September 11th terrorism-related issues – provided the
resources available for its administration and enforcement are increased.
Events of the last several days in the United States further highlight
the critical need for adequate training and resources, especially for all those
involved in front-line security and processing.
Committee heard that over the past decade the Department has undergone two
rounds of serious downsizing that have reduced immigration staff – including
front-line immigration officers – by almost half. Certain witnesses were not convinced it would be possible
to implement new increased security measures given that there are insufficient
resources to carry out current tasks in an effective manner.
also heard that the Immigration and Refugee Board has a backlog, or
“inventory,” of approximately 34,000 refugee claims that have not yet been
heard and decided. Also of note was
the testimony that about 15 per cent of claims are abandoned, and because Canada
does not have exit controls it is unclear whether these people have left the
country. Witnesses explained that
the Board currently employs 186 decision-makers, supported by 103 refugee claims
officers. Once the Department has
found a person eligible to make a refugee claim – a procedure that can take up
to six months – the person’s claim is referred to the Board, where the
processing time for each claim is about ten months.
Certain witnesses expressed concern about the proposed 72-hour time frame
for the initial eligibility processing step.
However, other witnesses indicated this would merely ensure the claim was
referred to the Board in a timely fashion.
They explained that if background checks later turned up information
suggesting, for example, the person was a security risk, the claim could be
suspended at any time. The
Committee was told that the Board would need in the order of 250 decision-makers
and another 50 or 60 refugee claims officers to significantly reduce the backlog
and processing time.
heard testimony about events that have occurred at overseas missions – large
amounts of money disappearing, bribery, visas going missing – which are
allegedly attributable to locally engaged immigration employees.
The Committee also heard concerns from witnesses about the qualifications
and training of Board members being insufficient to carry out their duties
fairly and effectively. Testimony
was given that such shortcomings would only be exacerbated by the proposed move
in the Bill to single member panels.
suggests that the Government evaluate the need to invest in additional resources
in Canada’s immigration and refugee system for more personnel, better
enforcement, additional training programs and improved technology.
The Committee is of the view that there should not only be new personnel
hired to implement reinforced security measures at entry points, but also to
process and review new immigration applications and refugee claims.
also suggests that the Department and the Immigration and Refugee Board evaluate
the need to verify the integrity, qualifications and decision-making ability of
their personnel, especially locally engaged overseas immigration officers and
Board members. As part of this
process, the Minister may wish to undertake a review of the appointment process
for Board members to make it more professional and to ensure members have
sufficient qualifications and training. The
desirability of having refugee claims heard by two members of the
Board, as opposed to just a single member, could also be evaluated.
is concerned about the broad regulation-making power the Bill would give to the
Department. The Committee
recognizes that under clause 5(2) of the Bill, certain proposed regulations
would be laid before each House of Parliament, and each House would then refer
the proposed regulations to the appropriate Committee of that House.
under clause 5(3), once a proposed regulation had gone before each House there
would be no need to put it before the Houses again, even if it had been altered.
Concerns were expressed that this provision makes the whole process of
review of the proposed regulations by each House of Parliament illusory, given
that changes can be made to proposed regulations without the need for
Parliamentary review. The
desirability of subjecting the regulation-making power of the Minister to
greater scrutiny by the appropriate Committee of each House of Parliament should
therefore be examined. This
scrutiny could include review of all
changes to proposed and existing regulations.
was told that the family class set out in clause 12(1) should be explicitly
defined in regulation to ensure that no currently recognized categories of the
family class are excluded. In
particular, the Committee would suggest that “grandparents” be included in
the family class by regulation. The
Committee recognises that a commitment to do this was made by the Minister in
also agrees with witness suggestions that the family class regulations to the
Bill should explicitly define “common-law partner” to include same sex
indicated to the Committee that the Department is “fast-tracking”
implementation of a new fraud-resistant permanent resident card.
The Minister did not state when the card would be in place, but noted
that it would definitely be before the 2003 date initially envisioned.
The Committee requests an update from the Minister on this issue at the
earliest possible opportunity.
witnesses expressed concern about the Bill’s lack of definitions of
“terrorism” and of what constitutes being a “member” of a terrorist
organization. The concern derives
largely from the use of these terms in clause 34, the provision dealing with
inadmissibility on security grounds. The
Committee was told that without explicit definitions, the decision whether a
person is a “terrorist” would be a subjective one left to the discretion of
recognizes that the international community has hesitated to endorse a precise
definition of terrorism because the term is so ambiguous and open to political
manipulation. However, the
Committee heard that workable definitions of terrorism do exist, such as that
set out in the United Nations Convention against the Suppression of Financing of
Terrorism. Some witnesses suggested
using the definition of “threats to the security of Canada” set out in the Canadian
Security Intelligence Act. This
could be done in the regulations that would apply to Bill C-11.
was also told that the term “terrorism” should not be used in legislation,
because it is too amorphous and may thus target the wrong people.
Rather, it was suggested that reference be made to “international
crimes,” as enunciated in United Nations treaties, and as they relate to the
many discrete terrorism-related offences set out in Canada’s Criminal Code.
recognizes the importance of defining the term “terrorism,” and supports the
idea of including such a definition in legislation or in regulation.
The Committee wishes to stress, however, that the same definition of
“terrorism” should be used in all relevant Canadian legislation.
The Committee highlights the definition of “terrorist activity” in
clause 4 of Bill C-36, the Anti-terrorism
Act, which is currently before the House of Commons.
A similar definition – adapted to the context of Bill C-11 – should
be considered for the regulations that would apply to Bill C-11.
potential application of clause 64 of the Bill also raised certain concerns
during proceedings. Non-governmental
witnesses questioned several aspects of this provision, which would remove the
right of a permanent resident convicted of a “serious crime” – defined as
any offence for which a sentence of at least two years was imposed – to appeal
his or her deportation to the Immigration Appeal Division.
Thus, if an immigration officer reported a permanent resident to an
adjudicator as inadmissible on this basis, the permanent resident would
automatically face deportation regardless of other extenuating factors.
Many witnesses expressed the view that clause 64 goes too far and would
be subject to a great number of legal challenges.
was told that currently the Immigration Appeal Division is permitted to hear
such appeals. Circumstances
considered at these hearings have been enumerated in a 1985 case called Ribic
v. Canada (MEI) and include:
The seriousness of the offence;
The possibility of rehabilitation;
The length of time spent in Canada and the
degree to which the appellant is established here;
The appellant’s family in Canada and the
dislocation to the family that deportation would cause;
The support available to the appellant, not
only within the family but within the community; and
The degree of hardship that would be caused to
the appellant by his/her return to the country of nationality.
heard that clause 44 of the Bill is permissive in that an officer who is of the
opinion that someone is inadmissible may
prepare a report to send to the Minister, which report may be referred to an admissibility hearing.
Thus, there would be no obligation to prepare a report and certainly no
obligation on the officer to consider the above-noted Ribic
criteria. The Committee also
understands that clause 53 would grant the Governor in Council the authority to
make regulations concerning the circumstances set out in clause 44.
witnesses suggested completely removing clause 64 from the Bill.
The Committee acknowledges this suggestion, but understands that the
clause 53 regulation-making power could be used to address the concerns raised
by clause 64. The Committee makes
three suggestions to this effect.
Committee suggests including in the regulations a requirement that the
immigration officer, or a senior immigration official, consider all
circumstances of the permanent resident’s case under clause 44 when deciding
whether or not to issue a report.
Committee’s second suggestion is to explicitly include the Ribic
criteria in the regulations that would govern whether or not a permanent
resident convicted of a “serious offence” is referred to an adjudication
evidence before the Committee suggests enacting a domicile provision in the
regulations to allow access to the Immigration Appeal Division for permanent
residents who meet a threshold establishment in Canada.
For example, permanent residents who had maintained their permanent
resident status for five years before being
reported under clause 44 could be exempt from the application of clause 64.
This would amount to an automatic right of appeal for those who had been
permanent residents for at least five years.
is of the opinion that any of these three regulatory provisions could address
the concerns caused by clause 64, i.e., that long-term permanent residents with
strong ties to Canada and who are a low risk to re-offend would face deportation
based solely on the fact of their conviction and sentence.
The Committee suggests that the Department address the issues raised by
clause 64 by enacting one of these suggested regulatory alternatives.
also heard testimony about the need to regulate immigration consultants.
Currently, anyone can claim to be an immigration consultant, regardless of his
or her training and experience in immigration law.
Witnesses spoke of how regulation would prevent dishonest and incompetent
persons from holding themselves out as immigration practitioners as they make
unrealistic promises to clients and charge them exorbitant fees.
was informed that over the past decade detailed representations have been made
to the Department suggesting a self-governing regulatory regime that would not
offend provincial jurisdiction. The
Committee urges the Department to evaluate the desirability of using its
statutory power – which exists under the current Act and is present in clause
91 of Bill C-11 – to regulate immigration consultants.
101(1)(e) of Bill C-11 would exclude from the refugee determination system those
who have passed through a prescribed country on their way to Canada, unless that
country was their place of nationality or former habitual residence.
These “safe third countries” would be designated by the regulations
and asylum seekers would be expected to make their claims there.
Similar provisions exist in the current Immigration Act and have existed for some time.
However, no country has ever been designated for this purpose.
heard evidence that anywhere from one third to one half of refugee claimants in
Canada enter our country from the United States. Testimony also indicated that many European countries have
“safe third country” provisions in their immigrations laws.
Concerns were expressed, however, that such provisions must ensure that
the asylum seeker receives a hearing in accordance with the Refugee Convention
and international law. The
potential exists, it was noted, for claimants to be deported to a “safe third
country” which would then deport them to another “safe third country” and
so on, until they were eventually returned to the country where they fear
persecution. It was also indicated
that the Europeans are not currently satisfied with the way their “safe third
country” system functions at this time.
Committee heard that United Nations High Commissioner for Refugees guidelines
exist that could be considered in determining whether the return of an asylum
seeker to a particular country should take place. The conclusion of formal agreements between nations, it was
indicated, has the potential of enhancing the orderly protection of refugees.
However, the Committee was informed that there have been difficulties in
establishing an agreement with the United States.
Evidence was put before the Committee that the Canadian refugee
determination system may be “more generous” than the American.
is of the view that consideration should be given to the definition of “safe
third countries”. The issue could
be further examined by the Government, particularly with respect to the
negotiation of an agreement of shared asylum processing with the United States.
The Committee suggests that the Government work toward implementing the
safe third country provision.
A number of
members of the Committee are also concerned that Bill C-11 effectively purports
to be retroactive in its application. For example, the new inadmissibility guidelines would apply
in respect of acts that took place before the Bill would be proclaimed into law.
Witnesses made specific reference to the “serious criminality”
provision of clause 64 that would preclude a permanent resident from an appeal
of deportation if he or she were sentenced to two years or more for a criminal
offence. In effect, people who may
not be removable under the current Act would become removable when C-11 is
that have begun under the current legislation would automatically become subject
to the new legislation. Although the Minister stated that applicants who have
been interviewed under the current law would be processed according to the
current law even after the new legislation takes effect, it was not clear that
others who have not reached the interview stage would be subject to the rules
that were in place when they made their application.
Thus, applicants who have spent large sums of money on the assumption
that they meet the immigration criteria could discover that they suddenly do not
meet the new criteria when the new law takes effect.
The non-refundable fee per adult applicant is usually $500; even higher
fees are charged for business class applicants.
for legal challenges to the retroactive application of a new act was also
mentioned in testimony before the Committee .
number of members of the Committee suggest that Bill C-11 should not force those
whose processes have commenced under current legislation to be automatically
subject to the new law. At the very
least, they should have the choice of which legislation would apply.
under clause 94 the Department would already be obliged to submit an annual
report to Parliament on the operation of the legislation, the Department should
also be obliged to report back to the appropriate Committee of each House of
Parliament on the implementation of the Bill, especially in relation to points
raised in these Observations.
light of the various issues highlighted during these hearings, the Committee is
of the opinion that the Senate should consider doing an in-depth study of all
aspects of Canada’s immigration and refugee protection system.
As one specific example of the issues that need to be addressed, the
Committee heard important testimony about the difficulties faced by female
refugee claimants subject to deportation orders who, upon removal, are separated
from their Canadian-born children. There
are many other similar examples of issues that indicate the timeliness and
desirability of an examination of Canada’s immigration and refugee protection
system. Such a study should define
the fundamental issues and include a review and analysis of previous
governmental studies on the Canadian immigration and refugee systems.
intends to ask the Minister to respond in writing to these observations six
months after the legislation is proclaimed.