Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology

Issue 26 - Evidence

The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-11, respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger, met this day at 2:00 p.m. to give consideration to the bill.

Senator Michael Kirby (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, we are here to deal with Bill C-11. First, in regard to process, I believe we have distributed the list of witness that the steering committee developed last week. There is a list of some 50 panels of witnesses stretching over approximately 25 hours of hearings. The number of actual witnesses may be greater than 50, as panels often include more than one witness.

The steering committee discussed whether we wanted the minister at the end or beginning of the hearings and we agreed that we would begin with officials. The minister is scheduled for 9:00 a.m., Thursday morning.

The steering committee also reached a gentleperson's agreement that the chair would not entertain motions on amendments or any other procedural motion until we finish the list of witnesses on Thursday. The clerk informs me that there are people, to whom invitations have been extended, and we are still waiting to hear from them. They will be added to the list for Tuesday or Wednesday. We expect to hear back from them today.

Senator Di Nino: Honourable senators, the events of September 11 will come up many times. I would like to hear from CSIS. I do not see them on the list that I have.

The Chairman: We have invited CSIS to appear. The clerk has heard from CSIS and it appears they did not want to appear. However, I have sent a message back to them making it clear that they will appear. If the government is interested in getting the bill, they will find a way to have CSIS appear.

[Translation]

Senator Morin: Mr. Chairman, if I understand correctly, we agree that the chairman will not accept any motions until the committee has heard from all the witnesses, including the minister, on Thursday, October 4.

[English]

The Chairman: Those are the ground rules.

I thank the witnesses for coming. Joan Atkinson is leading the panel from the Department of Citizenship and Immigration today.

Ms Atkinson, as you can imagine, many of us have questions to ask. I will ask you to begin, however, for the purposes of our record and for purposes of making things easy for the Hansard reporters, by introducing your colleagues who are with you so that when we are asking questions or when they are answering, we will know who is speaking.

[Translation]

Ms. Joan Atkinson, Assistant Deputy Minister, Policy and Program Development: I am very pleased to be here to discuss Bill C-11.

[English]

I have brought with me today Mr. David Dunbar, legal counsel; Mr. Dick Graham, from the enforcement branch; Mr. Mark Davidson, from selection branch, and; Ms Jennifer Lutfallah, from the refugee branch.

Perhaps I could begin by saying that with Bill C-11 we are trying to introduce a balanced package of reforms that is tough, targeted and has the enforcement measures that we need to protect the safety and security of Canadians while at the same time enables us to continue to welcome the skilled workers and business immigrants whom we desperately need in this economy while continuing our tradition of strong family unification and offering protection to those in need.

I will begin by addressing concerns that are foremost on the minds of all of us here, and that is our preparedness in the aftermath of the tragedy in the United States. There are a number of measures in this bill that do address some of those concerns.

We currently have some of the toughest immigration legislation in the world as it relates to our inadmissibility provisions with regard to terrorism, organized crime and war criminals. What Bill C-11 will give us are comprehensive measures that will further strengthen national security and public safety.

The bill will give us stronger authority to arrest and detain criminals and persons posing a security threat. It will give us broader grounds for denying entry or deporting persons for reasons of organized crime. It will eliminate appeal rights to the Immigration and Refugee Board for cases involving security, organized crime, human rights violations and serious criminals, in order to speed up removals. The bill will provide a streamlined process for barring refugee claims from inadmissible persons for reasons of security, organized crime, human rights violations or serious criminality and expanded authority to terminate refugee claims in those cases.

Bill C-11 will provide a streamlined process for the removal of persons who pose a threat to national security on the basis of evidence that is sensitive and cannot be disclosed and will provide a broader ability for us to use this type of sensitive information in cases involving security concerns, organized crime and the like in front of administrative tribunals at the IRD to more effectively bar entry or remove such persons from Canada.

We are all well aware of the reasons for the proposed legislation. Immigration currently accounts for 75 per cent of labour force growth and by the year 2011 will account for 100 per cent of labour force growth. Immigrants come to Canada with not just skills and entrepreneurial spirit, but with their families, or they bring their families later. Family unification will continue to be a cornerstone of our policy and is necessary for the successful establishment of newcomers and the building of strong communities.

[Translation]

Some 103 million people are estimated to be on the move worldwide. The need for protection of people fleeing war, civil strife or persecution continues to grow.

[English]

Global migration pressures and the promise of significant profits from transporting and exploiting migrants have led powerful international criminal organizations to extend their activities to migrant smuggling and trafficking. We need an act and regulations that are flexible and that will respond to this new global reality - that will allow us to maximize the benefits of immigration while maintaining our humanitarian traditions and allowing us to protect the safety and security of Canadians by managing access.

The bill is framework legislation; in many respects, our current act is framework legislation. Many of the details on the selection of skilled workers, the definition of family class immigrants, the settlement of refugees oversee seeking resettlement are currently found in immigration regulations. This will continue with Bill C-11. However, the bill sets the statutory framework, ensuring that all the rights, benefits and privileges are clearly articulated in legislation and leave the procedural and administrative detail to the regulations.

[Translation]

In Bill C-11, the objectives relating to refugee protection are separate from objectives relating to immigration in recognition of the fact that the immigration and refugee programs have different purposes.

The objectives place greater emphasis on key principles and values that define Canadian society.

[English]

As you may be aware, the committee in the other House added important new objectives to those that were in the original bill, including the equality of the French and English languages as official languages of Canada, the necessity to support the development of official minority language communities in Canada, the multicultural character of Canada, a commitment to engage with provinces when dealing with the difficult issue of recognition of credentials on the part of foreign nationals and permanent residents in Canada, and the respect of international conventions in respect of human rights, to which Canada adheres.

There are limits to the regulation-making authority in Bill C-11. Specifically, the bill authorizes the making of regulations that are referred to in the act. Additionally, as a result of amendments that were made, the bill requires the minister to table any proposed regulations in respect of examinations, rights and obligations of permanent and temporary residents, loss of status and removal, detention and relief, refugee eligibility, the pre-removal risk assessment and transportation companies before each House of Parliament for referral to the appropriate committee of that House. This is a new and significant departure from the current act.

In terms of family re-unification, the bill does not deal with the details of the definition because that information will occur in regulations. However, Bill C-11 formally enshrines formally, for the first time, the family class in legislation, which gives the class a greater measure of permanency. The bill provides conditions that give tangible expression to Canada's commitments to protect the best interests of the child.

[Translation]

The family class would be expanded through regulatory measures which include increasing the age of dependent children from under 19 to under 22 and recognition of common-law, including same-sex, partners. Bill C-11 eliminates the admission bar for excessive medical demands for sponsored spouses, common-law partners and dependent children.

[English]

On the other side, the regulations will enhance the integrity of the immigration system, specifically the immigration sponsorship system, by tightening sponsorship requirements. This will occur by improving the ability of the federal government to recover the cost of social assistance in cases of sponsorship default, thereby removing the need to collect through court action, and by providing the authority to issue certificates to garnish earnings.

With regard to skilled workers and business immigrants, a key for our future prosperity as a country is to ensure that we have a highly skilled workforce. Immigration plays a key role in this endeavour, given the impact of immigration on labour force growth in Canada. Regulations that will accompany the new legislation will modernize the selection system for skilled workers, shifting the emphasis from the current occupation-based model to focus more on choosing skilled workers with the flexible and transferable skill sets required to succeed in a fast-changing, knowledge-based economy.

The business immigration program will be further enhanced through a more objective assessment of business experience. With respect to temporary foreign workers, access for Canadian employers to the global-skilled, temporary labour force will be improved through faster approvals of individual foreign workers in exchange for employer commitments to hire and train Canadian workers. A new in-Canada landing process for certain temporary workers will allow these workers to make the transition from temporary to permanent more expeditiously.

In terms of the rights of permanent residents, Bill C-11 sets objective, transparent and flexible criteria to assess a person's right to retain permanent resident status when they wish to return to Canada following an absence. Under the bill, permanent residents would be required to be physically present in Canada for at least 730 days in every five-year period after becoming a permanent resident. This is a change from the current criteria, which stipulates that a permanent resident may lose status if he or she is outside Canada for more than six months, unless the immigration officer is satisfied that the individual never intended to abandon Canada as his or her place of residence. This new criteria of physical residence is much clearer and more transparent.

The bill provides for the issuance to permanent residents of a document indicating status. It is clear that the current legislation gives us the authority to issue documents. However, Bill C-11 provides legislative recognition of a new permanent resident card, which will be a document that will replace the existing document, which is a paper document that is prone to fraud and misrepresentation. The permanent resident card will be required for permanent residents who wish to travel outside Canada and wish to re-enter the country. The card will provide a more secure and fraud-resistant document to allow them to do so.

Bill C-11 provides for the issuance of travel documents to those permanent residents who are outside of Canada and who are not in possession of a valid permanent resident card, if they meet the residency obligation, or if they are appealing a loss of residency determination and if they have been in Canada at least once in the last year.

The bill also contains flexibility to recognize permanent residents who are outside of the country for reasons of employment with a Canada-based business or organization or government, or where there are compelling humanitarian and compassionate reasons.

The legislation also introduces new definitions of foreign national and permanent resident, which clearly distinguish permanent residents from foreign nationals and clearly highlight the distinct status that permanent residents enjoy in Canada. It includes a full, oral hearing - instead of paper appeal - for permanent residents who appeal loss of status to the Immigration and Refugee Board, with the possibility of using technology such as teleconference for persons outside Canada who need to be heard, or to allow the issuance of a document that would permit them to come to Canada.

Concerns had been expressed that Bill C-11 would compel permanent residents, who are the subject of an admissibility investigation, to submit to an examination. As amended, the bill now makes it clear that permanent residents cannot be compelled to submit to an examination for an investigation unless an application has been made, for example, for a visa, for entry to Canada, or for a sponsorship. The bill obviously contains the framework for our refugee protection systems - both outside of and in Canada.

Outside of Canada, much of the detail will be found in regulations but the bill provides for the framework to allow for those regulations to be made. Canada's resettlement program, which selects refugees from refugee camps outside Canada, will be made more responsive and effective by placing greater emphasis on the need for protection and less emphasis on the ability to resettle in Canada. New regulations will ensure faster and easier family reunification for refugees by allowing dependents to be processed as part of the same application for a period of one year after the principle applicant has acquired permanent resident status. Refugees re-settled from abroad and their dependents will be exempt from the excessive medical demand bar, similar to the exemptions for sponsored spouses, partners and common-law children.

The inland refugee determination system is obviously a key element of this bill. The bill introduces key changes to the refugee determination process to improve its effectiveness and integrity including greater emphasis on international obligations.

It is important to note that the bill will maintain the role of the Immigration and Refugee Board in the refugee determination system. It will maintain the right to an oral hearing at the refugee protection division at the Immigration and Refugee Board. It also maintains, through the Immigration and Refugee Board, the right for an impartial assessment by individual decision makers of a persons claim for asylum and refugee protection. These notions and this framework is similar to other jurisdictions in other parts of the world, even though there are variations in terms of how measures are put in place.

There are a number of key changes in the bill related to the refugee determination system. Consolidated decision making would ensure that all risk-related decisions currently taken by various players at various parts of the organization are consolidated at the Immigration and Refugee Board.

There would be the use of single member panels to enable the IRB to see a greater number of cases more quickly. Single member panels will be the norm for the determination of a person's claim to refugee status. This will be balanced, however, by a right of appeal - an internal caper appeal to a new refugee appeal division at the IRB, which will allow us to deal with issues of consistency and allow the Board to deal with issues of discrepancy between single member panels.

The bill requires a faster referral of those making refugee claims to the IRB. There would be a quicker determination of eligibility to claim and referral within three working days to the Immigration and Refugee Board.

Refugee claimants determined to be inadmissible on grounds of security, violating human rights or organized criminality will not be eligible to have claims heard by the Board. The current legislation does provide for the grounds of determining persons to be ineligible to have their claim heard. Bill C-11 provides a new, streamlined process for the eligibility determination by eliminating the need for a danger opinion, which is currently required in the current context.

If information comes to light that relates to a claimant's eligibility after a claim has been referred to the Board, Bill C-11 provides for a suspension of eligibility where a report has been referred to the immigration division of the Immigration and Refugee Board for a determination of inadmissibility. While the adjudicator is making a final determination of admissibility, the refugee claim is suspended at the refugee protection division of the Board.

The bill gives clearer rights to the minister to intervene in hearings at the Immigration and Refugee Board. It provides for participation of the United Nations High Commissioner for Refugees. It eliminates the leave requirement for the minister to seek vacation of a refugee claim if information indicates that that refugee status was obtained through misrepresentation or withholding of a material fact.

The bill also outlines a new pre-removal risk assessment, PRRA. That PPRA is designed to provide a fair and transparent mechanism to review risk prior to the removal for failed refugee claimants, those who abandon their claims, and all those who have been excluded from the Immigration and Refugee Board process.

Should those excluded from consideration of protection be found to be at risk, removal may be stayed but they would not be granted refugee protection. The minister may later re-examine any stay granted in the light of changed circumstances.

The PPRA is an important tool. It allows the government to balance the need for the protection of an individual against the need to protect the safety and security of all Canadians before a removal is undertaken. Repeat claimants will not be allowed to the IRB under Bill C-11. The bill does allow previous claimants to apply for a pre-removal risk assessment to assure that their risk is considered before a removal order is affected after six months.

With respect to the appeal system in Bill C-11, the bill removes appeal rights for foreign nationals who have been found inadmissible on ground of serious criminality, security, human rights violations or involvement in organized crime. This is a key element in balancing the rights of individuals and balancing the need to ensure that the measures in the act are protecting the safety and security of Canadians. Faster removal of those who pose a security threat or those who pose threats to the safety and security of Canadians is an important issue.

The removal of appeal rights for serious criminals is not new. The current act also eliminates appeal rights for serious criminals whether those individuals be foreign nationals or whether they be permanent residents. However, the current act contains a process by which the minister declares that individuals are a danger to the public. The process has been criticized as being cumbersome and lengthy.

Bill C-11 removes the danger opinion process and provides for objective, clear and transparent threshold or criteria for the removal of appeal rights for serious criminals. Serious criminality is only in respect to a conviction in Canada for offence of prison term of 10 years or more may be imposed and sentence of two years or more actually has been imposed.

Sponsors will also have their appeal rights denied where visa is refused on the grounds that the sponsored applicant has been found to be a serious criminal, security risk, human rights violator, a member of a criminal organization or was refused because of misrepresentation of a material fact.

There are new inadmissibility provisions. The bill clearly spells out the grounds upon which a person may be determined to be inadmissible to Canada. It identifies the generic ground for inadmissibility: security, human rights violations, criminality, organized crime, health grounds, financial reasons, misrepresentation and non-compliance with the act. This is a change from the current act, which lists different inadmissibility grounds for those seeking admission to Canada and those already in Canada, with considerable overlap and repetition. Bill C-11 clarifies this.

The bill also contains new inadmissibility grounds. For example, these provisions will give immigration officers the tools they need to bar entry to persons engaged in transnational crimes - such as trafficking in persons or money laundering - to foreign nationals who commit a infraction against specific Canadian laws as they enter Canada at the border, and to foreign nationals described in travel sanctions imposed in concert with the international community as part of an international organization of states to which Canada is a member, for example the United Nations or other international organizations. In addition, persons who commit fraud or misrepresentation of a material fact on an application made under the act will be inadmissible, and remain so for two years.

The bill contains tough penalties for trafficking and smuggling. It introduces severe penalties for people smugglers and those caught trafficking in humans for up to life in prison and/or $1 million in fines. It allows courts to order the forfeiture of money and other property ceased from traffickers and smugglers.

Bill C-11 provides for a single and comprehensive prohibition against possession, use, importation and exportation of passports, visas and other documents that purport to establish identify that would be used to contravene the legislation. It introduces a broader fraud or misrepresentation offence aimed at those who counsel misrepresentation.

The security certificate process is changed in this legislation. This is an important element in the strategy to remove from Canada persons posing a security risk, including terrorists. The current process for permanent residents is a lengthy and resource-intensive procedure that allows for multiple opportunities for judicial review. Bill C-11 simplifies the security certificate process for permanent residents by reducing it from four steps to two steps while ensuring a review by the Federal Court.

The bill also assists in dealing more effectively with cases involving security and organized crime by allowing the use, at admissibility hearings, detention reviews and immigration appeals, the use of confidential information that cannot be released due to potential injury to national security or the safety of persons.

Bill C-11 provides for clarity around detention provisions. The bill does not change the grounds for detention. The grounds remain the same; however, they are described in a more concise way and regulations accompanying the bill will provide further clarification for decision makers in deciding to detain or to release an individual from detention.

With regard to arrest, in recognition of the increased rights that flow from permanent residents and refugee status, additional safeguards have been built into the bill to ensure that permanent residents and refugees are arrested only with a warrant. At the same time, it expands the ability to arrest and detain without warrant foreign nationals who are found to be inadmissible for security grounds, criminality, war crimes, et cetera.

At ports of entry permanent residents and foreign nationals may be detained without warrant where there are reasonable grounds to suspect inadmissibility on grounds of security or for violating human or international rights.

[Translation]

Bill C-11 affirms the principle that a minor child shall be detained only as a measure of last resort and that the principle of the best interests of the child will be taken into account in all detention decisions involving minors. The regulations will prescribe factors to be considered.

[English]

Bill C-11 extends the power to arrest and detain for identity purposes within Canada, which is currently limited to persons seeking entry to Canada. However, it is important to note that undocumented refugee claimants would be detained only if they refuse to cooperate in establishing their identity.

Finally, Bill C-11 restricts access to day parole and unescorted temporary absences by criminals serving sentences who are the subject of a removal order.

In conclusion, Bill C-11 addresses concerns with Canada's preparedness to face international security threats by providing us with better measures and tools to deal with serious criminals, members of organized crime groups, war criminals and terrorism.

[Translation]

But at the same time, Bill C-11 gives us balance.

[English]

The balance is very important. By saying "no" more quickly to people who would abuse and threaten our immigration rules and values, we are able to say "yes" more often to the immigrants and refugees that Canada will need in the years to come.

Senator Di Nino: Bill C-11 was passed by the House of Commons on June, I believe, before the events in New York and Washington on September 11. Since that time, have issues come to your attention that were not part of this legislation to address security of our borders, including, for example, streamlining or cooperation with the United States to ensure that we do everything possible to keep out the undesirables?

Ms Atkinson: Prior to September 11, our cooperation with the Americans was at a very high level. Every day our officers at ports of entry and in other places across Canada cooperated with their United States counterparts. Immediately following September 11, that cooperation continued and it continues to this day.

We have an information-sharing agreement with the United States by which we share information from our respective databases, particularly with regard to terrorists and security threats. That information was being shared with the United States prior to September 11 and continues to be shared. Cooperation, with emphasis on information and intelligence sharing, will continue.

As a result of the tragic events of September 11 we have all seen the need to be able to share whatever information and intelligence we may have with regard to those who may pose a threat. We do this among ourselves and other law enforcement agencies within Canada, and clearly with the United States.

Immediately after September 11, we put our entire immigration network - whether overseas, at ports of entry, or in Canada - on a heightened state of alert. The heightened state of alert meant that all our officers at all those locations took more time to screen more carefully persons seeking entry and persons making applications. This continues.

As you may know, the minister also announced that, as part of that heightened security, we would start immediately to implement a more robust screening, particularly of refugee claimants who come into Canada. The current legislation allows us to screen refugee claimants against the existing grounds of admissibility in the act. We have quickly moved to put in place, across Canada, a system to allow us to examine more carefully each and every claimant as they come in and assess them against the inadmissibility grounds in the act.

It is not that we did not screen refugee claimants before September 11, but post-September 11 we have increased screening to ensure that we are taking into account all relevant information.

Senator Di Nino: I am sure you are aware that numerous commentators and officials have been critical of what is sometimes referred to as our "porous border." Two issues concern me. First, the Auditor General said quite specifically that the department did not have enough resources to be able to do the job. Second, Bill C-11 talks about doing a full and proper screening in 72 hours, or three days. Frankly, I find it hard to believe that we could a thorough analysis in 72 hours of a potential risk with regard to people coming from countries that may not have the rule of law, or where the rule of law has broken down.

Ms Atkinson: With regard to the porous border, it is important to note that there is two-way flow between Canada and the United States of refugee claimants. Close to 40 per cent of people who claim refugee status in Canada come to Canada from the United States - that is, they have entered North America through the United States, have spent some time there, and have come north to Canada to claim refugee status. The flow of irregular migrants, the flow of persons claiming refugee status, definitely goes two ways, which again points to the need for the two countries to collaborate and share information.

In terms of the three working days that the bill sets out for eligibility determination, we must be careful not to equate refugees with terrorists or with serious criminals, human rights violators and so on. It is still a small percentage of refugee claimants that would pose any security threat or difficulty for us.

It is important, obviously, that we have the proper procedures in place to be able to detect those who do pose a concern to us. When refugee claimants arrive in Canada they are fingerprinted and photographed. Those fingerprints are run against the existing databases. Therefore, if information in these databases that matches a claimant, there is an opportunity to identify people fairly quickly. The difficulty, of course, particularly when dealing with terrorists or others, is that they often do not use their own names or documents. They do not come, as some have said, with "Terrorist" tattooed on their foreheads.

We must be able to gather information on where they have lived, what organizations they might have belonged to, and the nature of their membership in those organizations. We then take that information with our partners - particularly CSIS -, to determine whether we are dealing with someone who may be ineligible to make a refugee claim based on the grounds of security, organized criminality, war crimes or serious criminality.

If we are not able to make that determination because we do not have all of the information within three working days, the bill allows us to suspend the consideration of an immigration claim at the immigration board. If we later make a determination that a person is ineligible, if we have collected sufficient information and have decided to take that case to an adjudicator at the immigration division to make a determination on admissibility, we can seek for the immediate suspension of the refugee claim. If the adjudicator rules that a person is inadmissible and therefore not eligible, he can then terminate that claim.

Similarly, if the person has gone through the refugee determination process and for some reason a refugee protection decision has been made, the minister can seek for a vacation of the decision made by the Immigration and Refugee Board on the basis that there was a misrepresentation or a withholding of material facts.

Therefore, we have tools in the legislation at the front end before a final determination or decision is made, and even after a decision is made we have tools to allow us to vacate that decision.

Senator Di Nino: You did not respond to my question about resources.

Ms Atkinson: I would have to say that in budget 2000 Citizenship and Immigration did receive substantial resources, which have been put to good use in terms of enhancing our control efforts, and will be put to use in building a global case management system that will be critical in allowing us to put together all of the disparate databases that we currently have in our system and make sure we have one consolidated database for ourselves and for sharing with others.

Senator Di Nino: One of the other areas of potential abuse is the identity document. I understand that you have been working on a replacement for the one that exists today. This is an issue that the previous government was dealing with some eight years ago. Where are we on that issue today?

Ms Atkinson: You are quite right that it has been an objective of the government to replace our current immigrant visa and record of landing - which is prone to fraudulent use - with a more secure document. The permanent resident card is at the top of our priority list in terms of moving forward as quickly as we can. The government has acknowledged that the current document needs to be replaced to give more integrity to our system. It is our intention to move forward with that as quickly as we can.

Senator Di Nino: I am not sure that gives me comfort, but I will ask two more questions.

In Bill C-11 there is increase in the fine for illegal smuggling. There exists now, I believe, a $500,000 fine. How many times has that maximum fine been imposed so far?

Ms Atkinson: We do not think that that maximum fine has ever been imposed.

Perhaps I could add, Mr. Chairman, that putting those increased penalties in the legislation is in part to send a signal to the judiciary, I suppose, that we are now equating human smuggling and human trafficking on the same scale as drug trafficking, because the new penalties equate to those currently in place for drug trafficking. Obviously, when a person goes through the judicial system, the judge will decide what actual fines or terms of imprisonment will be imposed. That will be decided through the judicial system. By putting this in our legislation, it sends a clear signal of the seriousness with which Parliament takes these particular offences.

Senator Di Nino: I just have one last question for now, if I may. The safe third country concept has been in the works for probably 10 years. Where are we on that?

Ms Atkinson: As you are no doubt aware, Bill C-11 carries on the opportunity and provisions for a safe third country. It must be done on the basis of an agreement negotiated with the country concerned. Obviously, for us, the United States is the primary country. If we were to have a safe third country agreement, that is the country with which we would want to have such an agreement, given the fact that so many of our refugee claimants do come to us from the United States.

It has not been an easy file for us to follow through for a number of reasons. In the last 10 years there have been differences in terms of the political environment in the United States that have made it difficult to get an agreement with the United States on a safe third country. It is early days post-September 11 in terms of this particular issue, but clearly it is in the legislation. We do believe it is a tool that we would clearly want to pursue when circumstances allow and the timing is right.

Senator Fairbairn: In going through of our mounds of documents over the weekend, it struck me that we are ourselves in a position, as Senator Di Nino is reflecting in some of his questions, of seeking reassurance that we have the balancing act before us here that you refer to in your remarks. It is noteworthy that there are a number of provisions in the bill that - without any knowledge of what would happen on September 11 - certainty give us a sharper edge than we have today in dealing with the issues of security, intelligence and terrorism.

In reflecting on this sense of reassurance, I know that the government will be pursuing that side of the equation, not only as we discuss this bill but also to strengthen our association with the United States in dealing with this issue that has come upon us.

The other side of the question, as we look at this bill, is to obtain a greater sense of comfort that the legitimate refugees and immigrants, to whom we are, and always have, opened our doors, will feel positive in trying to reach our borders. I wonder if you could give me a stronger sense that that issue has not somehow been sidetracked because of the urgency of the dreadful emergency we are in, and that we are maintaining in this piece of legislation a fair and accessible position for those who qualify to come into our country.

Will they feel a backlash at all, or will they continue to have protection within the provisions and the regulations that will come with Bill C-11? Could you discuss that?

Ms Atkinson: In the course of the deliberations and consultations on this bill, we have taken some steps to try to protect the rights of permanent residents. There was a great deal of concern, initially - although it was clearly not our intention or our policy objective - that the bill was not clear enough in terms of protecting the rights of permanent residents - persons who have come to Canada and have been granted permanent status but who are not yet Canadians.

The bill contains, for example, a clear definition of permanent resident that distinguishes permanent residents from foreign nationals in recognition of the special status they enjoy in this country.

Second, it contains provisions to protect the rights of permanent residents with respect to arrest and detention because one of the major differences between a permanent resident and a citizen is that permanent residents can lose permanent status if they are not physically resident in Canada or do not fall within one of the exceptions or are found to be inadmissible for reasons of serious criminality, terrorism, war crimes and so on. In the case of an arrest, there are protections to ensure that a warrant is sought before a permanent resident is arrested. There are protections to ensure a permanent resident is not compelled to be examined if we are simply investigating the inadmissibility. If permanent residents are making an application to sponsor a family member from overseas, they are required to answer truthfully all questions put to them and produce all required documentation. We have made sure that those rights are clearly articulated and protected in the changes that were made to Bill C-11.

A great deal of the detail on who gets selected to come to Canada is found in the regulations, and we have provided a document entitled "Explanation of Proposed Legislation," which provides detail on what our proposed regulations are. You will find in this book detail about the new selection criteria for skilled workers. There is also detail about the family class component, which we have expanded through our regulations. The bill recognizes explicitly the key components of the family class - spouse, partner, child and so forth - to explicitly recognize Parliament's desire to ensure that the immigration program contains not only economic, humanitarian and refugee components, but also a family class component that will continue to be an important part of the program.

The detailed rules concerning definitions of the family class, including the definition of dependent child - which has been increased from under 19 to under 22 - the recognition of common-law partners, in-Canada landing processes for spouses and partners, and sponsorship criteria are all outlined in this document and will be turned into regulations that will accompany Bill C-11.

In terms of the refugee determination system, the bill contains provisions to ensure that those who pose a threat will be dealt with quickly and excluded from the refugee determination process, but the three working days are to ensure that genuine refugees are not held up and are referred quickly to the Immigration and Refugee Board to adjudicate their claims as efficiently as possible to grant protection to individuals who need it.

The bill provides that once a person has been determined to be a refugee or a person in need of protection, the government will issue them a status document. That is a new provision to give those who may not have papers to allow them to travel, the status documents that would enable them to apply for travel documents.

At the very beginning of the process there are provisions for those fleeing jurisdictions where they may have faced criminal proceedings and part of their need to seek protection is that they have been subject to trumped up charges or subject to a judicial system where there was government interference by opposing forces.

The bill contains a check and balance to deal with people in the front end of process in determining eligibility and it requires us to pause and seek a danger opinion from the minister for that very small group of refugee claimants who have criminal convictions overseas before we declare them inadmissible. Those individuals are eligible to have their refugee claim heard unless the minister determines that they are a danger to the public in recognition of the fact that some refugees claimants who come to our borders may have criminal convictions overseas. However, the circumstances of those criminal convictions may be part of their claim for criminal protection.

We think that Bill C-11 and the accompanying regulations do contain that balance between maintaining our tradition of welcoming immigrants and refugees to this country and ensuring we have the tools to keep people out who should not be here.

Senator Fairbairn: Could you enlighten us with respect to the additional ability that the bill gives Canada to enter into agreements or understandings with international organizations, which has not been the case in the past? There is also a change within this bill respecting the relationship between the federal government and the provinces to streamline the process with provincial acceptance and to maintain a federal overview and not to renege on our responsibilities as a federal institution.

Ms Atkinson: That bill allows us to enter into agreements with organizations such as the United Nations High Commissioner for Refugees, the International Organization for Migration, the International Red Cross and other humanitarian organizations to help us in the screening of refugees seeking resettlement. It allows us to have flexibility if in a particular situation we want to use our resources to focus on those that are more complicated and complex and to allow those reputable international organizations to help us screen refugees seeking resettlement. It gives us a clear legislative basis up which to enter into those sorts of organizations, which will allow us to be more efficient in dealing with cases abroad.

In terms of the federal-provincial element, the bill gives further recognition to the government's recognition of the shared jurisdiction. Under the Constitution Act, immigration is a shared jurisdiction with the provinces. We have a variety of different arrangements with the provinces according to the different sorts of agreements we have with them individually, ranging from the Province of Quebec, which has a very extensive agreement with the federal government to provinces where we have statements of mutual cooperation and understanding.

We have with a growing number of provinces, arrangements or agreements that allow the provinces to be more involved in the selection of economic immigrants. These are called Provincial Nominee Agreements and they allow provinces to nominate individuals that they wish to come to their province to meet their specific economic needs.

In all of these agreements, the role of the federal government in assessing what we call statutory requirements - that is, security, criminality, medical and so on - is always paramount. The federal government always retains the right to assess and to refuse or remove if necessary individuals who are inadmissible to Canada on any of those inadmissibility grounds.

The provinces are increasingly interested in getting involved more directly in attracting immigrants to their respective jurisdictions. We have recognized that through a series of agreements. Bill C-11 gives more explicit recognition to the consultation with the provinces in areas that are of direct interest to them and contains the existing provision that the minister must consult with provinces when it comes to setting immigration levels and determining the mix of immigrants to come to this country.

The Chairman: Before turning to Senator Andreychuk, let me ask this question: Knowing the snail's pace with which legal things get drafted in this city, and in particular within the Department of Justice, I assume there is some work going on now on the drafting of regulations.

Ms Atkinson: There is considerable work going on. As we speak, the work is going on, but some of the key people involved in that are here today.

The Chairman: I would like to have a sense of the timetable. The bill cannot go into effect until the regulations are completed, obviously. What is the time frame for completing the regulations? Assuming, for example, that the bill was passed sometime in the next six weeks, what is the time frame for completing the regulations?

I ask because of the following illustration: Parliament completed the Canada Business Corporations Act around June 15, with everyone saying at the time how important it was that the bill get done. That bill is still not in force because the regulations are still not done. I understand that the bringing of it into force is still some considerable time away. It is against that backdrop that I would like some understanding of the time frame to complete these regulations.

Ms Atkinson: Mr. Chairman, we have the legislative process, the regulatory process, and then implementation. This legislation impacts on every element of the immigration system in Canada at ports of entry and overseas. We are working on all three tracks at the same time. We are not doing it sequentially; we are doing it in parallel.

Work is ongoing on the drafting of regulations. At the same time, we are also working on our implementation planning. We hope to be able to have regulations ready for prepublication before the end of calendar year. That will allow for a prepublication period and consultation, the tabling of regulations in both houses and for a consideration of those regulations early in the new year. The implementation planning continues so that we will have the legislation, the regulations and all of our implementation plans ready.

The Chairman: I will give a modest translation of what you said. You have said that given when the regulations are to be drafted, given the prepublication period, given the ultimate need for the regulations to be tabled in both Houses of Parliament, you are really looking - at the earliest - at some time around the beginning of March before the bill could go into effect.

Ms Atkinson: We would be looking at 2002. Spring would be the earliest.

The Chairman: March 1 is being generous.

Ms Atkinson: That would be a challenge.

Senator Andreychuk: I wish to zero in on the question that has grabbed the attention of the press and the public, and that is how this bill fits into the whole terrorism issue. I think you will agree that this is only one small piece, and I use the word "small" advisedly. There must be a terrorism strategy.

Based on that and some of the comments you made about the flow of people both into and out of the United States, have you or any of your officials had discussions since September 11 with the United States on just that issue?

It is not a question, in my opinion, of harmonizing the two, but that the two need to look at new approaches. For example, one of the things highlighted recently by those who work in the field is that when this flow goes both ways, we continue to track those that we lose. Equally, in the United States the amnesties cause a whole host of people to be within the North American boundaries.

This bill was structured before September 11 with some discussions with the United States, but those were ongoing discussions. There needs to be a look not just at the harmonization of two existing systems or one being changed, but we must look at how we complement and change our systems.

First, I would like to know whether in fact those discussions have gone on with the backdrop that we are still working what I believe to be an outdated definition of terrorism both for CSIS, the RCMP, and therefore your department.

Ms Atkinson: On the definition of "terrorism," I probably cannot say much at this time. The Prime Minister and the Minister of Justice have made it clear that the government is currently looking at all elements of its security and intelligence program to see what actions can and should be taken in the short, medium and long term. That work is under way, but I am clearly not in a position to be able to share with you.

Perhaps I can address your question by talking a bit about our relationship with the United States. In the aftermath of the tragedy we were in constant contact with our counterparts primarily to deal with the immediate issues - the planes diverted to Canadian territory, individuals who may or may not pose a threat - and dealing with our American counterparts on those issues.

In the days and weeks since, we have been concentrating on border security and ensuring that we maintain that high level of alert, and we have been in very close contact with the United States and been sharing information and intelligence with them. However, it is fair to say that our discussions have and will continue to look at those things that we can do collectively to prevent people from arriving on our respective territories that may pose threats either to the United States or Canada.

We have a significant network of visa operators overseas. Within that network, we have specialized officers called immigration control officers. The role of the immigration control officers is to work with airlines and other transportation companies to try to prevent those individuals getting on planes or other modes of transportation to come to Canada who are improperly documented and who may be inadmissible. They also pick up and report on trends, and they collect and analyze intelligence. This network has been a critically important part of our strategy to prevent people from arriving in Canada, rather than trying to deal with them at the border. This model has been copied by other governments - the British, the Dutch, the Australian and the United States governments. We have worked with the Americans overseas in joint interdiction activities to try to target those areas where there are problems with improperly documented people trying to board planes for North America.

In the aftermath of the tragic events in the United States, those efforts will not only continue but will continue with renewed vigour. We recognize that we must try to share our intelligence and information when we are dealing with our overseas resources to prevent people from coming to our respective territories.

Senator Andreychuk: One other question arising out of that pertains to resources. Having worked "on the inside" at an embassy, I was struck some 10 or 15 years ago by the fact that we were short of resources and training, and that permeated not only in the CSIS officers, the RCMP officers, the visa administrators and all of those who worked within the immigration field. It has since become much more critical.

In tracing back a number of cases, one can find that it was not a change of law that we needed, but rather we simply needed well-trained and sufficient peoples to do the job that was already demanded of them.

Are there sufficient resources, and should this not be the government's top priority to ensure that we have sufficient overseas staff and that we are staffing appropriately? Perhaps it is a case of retraining existing staff or training more supervisors with locally engaged staff, as this has been a constant problem in immigration issues in our embassies and noted by the Auditor General and by those who work in the field. The problems always seem to come down to difficulties, and therefore resources, as opposed to changes in the law, need boosting. Yet, here we are facing changes in the law. We do not see much in the way of a substantial increase in resources to make the system work.

Ms Atkinson: I cannot sit here and tell you that it would not be nice to have additional resources - that goes without saying.

As I stated previously, the government is looking at all of its responses across the board to the current situation in the immigration context as well as in other agencies. I cannot comment on whether there may be additional resources, but clearly, that is one of the issues the government is looking examining.

However, it is important that we ensure that we have the right kinds of tools and infrastructure and systems in place for those resources to use.

We did receive significant resources for the building of our new global case management system. It is a $200-million project over five years, and it is the largest project outside the government online project of any current government IT project. The objective of that project is to ensure that we have a seamless database or a client continuum so that when someone approaches us - whether they be applying overseas or applying for refugee status at a border point or applying inland - we have a record of that person and that it is available in the system at any time. We would, therefore, have a more robust database than we have now. When we needed to check on someone's name or fingerprints against our database, we could be confident that we have all the available information on that individual in one place and at the same time. That is a key tool to enhance the integrity of our system. We have received substantial funds to build that system.

In addition, the proposed changes to the legislation - the refugee determination system, the selection criteria for skilled workers and a design for a system that would allow us to make decisions more quickly based on more objective criteria - help us deal in a more streamlined and efficient way with the resources that we currently have. If we receive new resources, so much the better.

Senator Andreychuk: My concern has been our international responsibility for refugees and that we not unduly skew any system to put more people in jeopardy - people that other countries have already put in jeopardy. I was pleased to hear what you said, and I am aware of some of the measures taken to try to eliminate the trafficking of migrants so that more of those caught in such systems will not be victimized.

What is the current state on stateless persons? If we find individuals to be stateless, and it is not possible for them to return to any country, where are we left with our responsibilities? What is Canada's answer to those who have found themselves unable to return to the country of origin or to a third country, which they have passed through? What is Canada's position and responsibility to those people if they fail to comply with some of our rules? I am not talking about terrorists in this case.

Ms Jennifer Lutfallah, Senior Advisor, Asylum, Refugees Branch, Department of Citizenship and Immigration: If we determine that someone is stateless, we have a mechanism available in the current Immigration Act, and in Bill C-11, whereby we could provide permanent resident status through humanitarian and compassionate means. That mechanism will continue under Bill C-11.

The Chairman: As an aside, Mr. Elcock will appear, as we had originally hoped, with the RCMP group for our next panel.

Senator Beaudoin: I have two short questions. At the beginning of your remarks, you said that our protection of refugees is the same that has been adopted by some other countries - I believe you mentioned the British, the Dutch and the Australian governments. Are those the same countries that you had in mind when you said that the philosophy of this bill is the same as that which has been adopted by those countries?

Ms Atkinson: I was referring to our current system that is enshrined in Bill C-11 and has an independent tribunal that makes refugee determination. It is not exactly the same as other countries because every country has unique ways of dealing with those claims. The countries you mentioned are all signatories and have, in their refugee determination systems, similar sorts of checks and balances built in. Those may be appeal rights by independent decision makers to review the merits of individual cases or processes whereby refugee claimants may access the courts for the purpose of claims reviews. The philosophical underpinning of ensuring that refugees have due process is a philosophy that is supported by many other jurisdictions.

Senator Beaudoin: In particular, in Britain?

Ms Atkinson: Yes, it does. It is also shared with France, the United States and Australia. These countries ensure that refugee claimants or asylum seekers are entitled to due process.

Senator Beaudoin: The due process of law is one of the most important questions.

You said that immigration is a concurrent matter in our Constitution with the predominance of Ottawa, but that you will consult the provinces. You said also that you have a convention with Quebec. That works well, as far as I know; it has existed for nearly 20 years. It is renewed every three years, I understand. Is that the one that you had in mind?

Ms Atkinson: Currently, it is the Canada-Quebec Accord. I am not sure when it was signed, but it has been in place for a number of years, Senator Beaudoin.

Senator Stollery: It was originally signed about 1977.

Ms Atkinson: It is a standing agreement; it is not subject to renewal.

Senator Beaudoin: I see. To what extent is this convention dealing with the due process of law? Is it new or is it the previous convention that we have had for the past 20 years?

Ms Atkinson: It is based on the agreements that we have had in previous years. It clearly outlines the responsibility of the Quebec government for selection of economic immigrants and family class clause immigrants to the province. It notes that the refugee determination system and matters dealing with enforcement are clearly within the purview of the federal government.

The agreement lays out the respective roles and responsibilities and authorities. It is based on previous agreements but provides more clarity and clearer definitions of those responsibilities.

Senator Beaudoin: Has the catastrophe of September 11 been taken into account in the conventions with the provinces?

Ms Atkinson: The agreements with the provinces largely touch upon the selection of economic immigrants from overseas. The elements that relate to their admissibility on security grounds, criminality and so forth remain federal government responsibility. All of the agreements are clear in that respect, but they focus more on the selection of skilled workers and business immigrants than they do on the security grounds because that is clearly within federal government responsibility.

Senator Beaudoin: I have no doubt about that.

Ms Atkinson: The federal government's responsibility is clearly outlined in the act as well. The question of the federal government responsibility for those issues is clearly outlined in the legislation.

Senator LeBreton: I have a question regarding resources, particularly resources at the point of entry where these people first apply. I am thinking more of people in our missions abroad. You referred to them as immigration control officers.

In answer to a question from Senator Fairbairn, you talked about point of entry screening and dealing with legitimate refugees. You talked about UN agents and the Red Cross. I would like to know whether these point of entry immigration officers have a process to access Interpol, CSIS and the CIA. I would guess that we do not have these people in every mission abroad. But could those who are in missions access such information in their assessment of people?

As you state, often people seeking entry into Canada for illegal purposes do not advertise that they are potential terrorists or are using identification that is not their own. Do we have a sufficiently sophisticated system in place and questions set up in such a way, with the assistance of other departments, that we can almost immediately spot these people before they complete the final form?

Ms Atkinson: We work overseas very closely with CSIS, which is our key partner in dealing with security issues. Visa offices overseas screen all immigrant applicants. Every immigrant applicant and every visitor applicant is screened against our database. The database includes the information that we collect overseas and the information that is in our domestic database, our "lookout system." Every applicant is checked against our lookout system overseas.

Certain categories of visitors possessing certain attributes are subject to additional screening in conjunction with CSIS. More in-depth assessment of an individual's background, if necessary, is also done with the assistance of CSIS.

In an immigration application, we normally have the luxury of time because people submit their application and they go through a process where we have the opportunity to verify their documents, to assess whether their documents are legitimate, to assess their background and where they have lived and to what organizations they have belonged, et cetera. We have the ability to collect this information and determine, in conjunction with our partners, whether these persons pose a threat to us.

Visitors, as with any applicant, are checked against our lookout system. For certain categories of visitors some additional steps are taken with CSIS.

Senator Stollery: I was a member of the green paper that did the Immigration Act in 1976, as well as chairman of the committee on manpower and immigration. This conversation is sort of dream because we had it so many times in the 1970s.

We understood very clearly the difference between immigrants and refugees when we did the Immigration Act. The opinion was unanimous. We have a policy for immigrants based on employment opportunity in Canada. Refugees are often a political question. Public opinion forces the government to decide that they will take in 1,000 refugees from, for example, Uganda, Viet Nam, Somaliland or Albania.

I do not see that clear distinction between immigrant and refugee in this bill. I have looked through it. That is my first observation.

Second, we all know that the U.S. has six million illegal immigrants. They have had a corrupt immigration policy for many years because of agricultural interests in California for example. Also, you could walk into the U.S., which you cannot do in Canada.

In discussions of a unified policy with the Americans, is there any thought being given to protect Canadians from the enormous number of illegal immigrants in the United States?

Ms Atkinson: Let me deal first with the issue of immigrants and refugees. The bill from the start recognizes that there are differences between immigrants and refugees. It has two separate sets of objectives. One set of objectives deals with immigrants and another set for refugees, recognizing that our end game recognizing that it is often quite different when dealing with refugees. The overwhelming objective, when we are dealing with genuine refugees, is offering protection and, in many cases, saving lives. There is a separate set of objectives that clearly indicate that we look at immigrants and refugees differently.

Senator Stollery: They are not immigrants; they are refugees.

Ms Atkinson: They become permanent residents, however.

Senator Stollery: I understand that. However, they are not immigrants. They are refugees.

Ms Atkinson: They come as refugees; that is quite correct.

You also asked about refugee resettlement programs overseas, and you mentioned some examples such as the government deciding to take 1,000 refugees from a particular area of the world. We have a long tradition, as you pointed out, of bringing in refugees, be they from Vietnam or from Kosovo.

Those sorts of situations will be dealt with primarily through the regulations, as they are now.

Senator Stollery: It would be a cabinet decision, not a regulatory decision. The cabinet would decide that, for reasons of public pressure, we would take so many thousand people from a country, and then the regulations would apply.

Ms Atkinson: That is correct.

Senator Stollery: It would be a political decision.

Ms Atkinson: That is correct, as in the situation with Kosovo, one of our most recent examples: The government decided that it would take a significant numbers of people from Kosovo, given the humanitarian crisis in that area of the world. That will continue in the future.

The bill and the regulations provide the legislative and regulatory tools to allow us to do that.

Your third question was with regard to the United States.

Senator Stollery: And the six million illegal immigrants who live there.

Ms Atkinson: When we talk about our relationship with the United States and working together, we are not talking about having the same laws. There will always be differences between Canadian and American immigration laws.

We are talking about sharing our information and intelligence, working smarter together and collaborating to be able to identify the threats and the risks before they arrive in our respective areas and to be able to deal with individuals when they get to our respective areas. We are not talking about a complete harmonization of our laws. That is clearly not where we are going in terms of our relationship with the United States.

Senator Stollery: Those 18 or 19 legal residents of the United States who blew up the World Trade Center would not have been able to get into Canada under the kinds of regulations that you are contemplating?

Ms Atkinson: I do not want to make any promises. Obviously, our screening mechanisms abroad are geared to try to detect those persons who could commit such atrocious acts. We will continue to ensure that we have the appropriate screening mechanisms abroad to try to pick those people up.

The Chairman: Ms Atkinson, we thank you and your staff very much for coming. We appreciate it. I assume that some members of your staff will remain in the room so that if a technical question comes up we will be able to get an answer to it.

Ms Atkinson: Yes.

The Chairman: Senators, our next panel consists of two representatives from the Royal Canadian Mounted Police, Mr. William Lenton and Mr. Ray Lang. They are joined, by popular demand of the committee, Mr. Ward Elcock, the Director of the Canadian Security Intelligence Service.

Thank you for coming, gentlemen.

Mr. William Lenton, Assistant Commissioner, Royal Canadian Mounted Police: Honourable senators, thank you for the opportunity to speak to this issue this afternoon. I would like to introduce Superintendent Ray Lang who is the officer in charge of the immigration program within the RCMP. He will be able to answer your more technical questions.

I would like to make it clear at the outset that the RCMP is responsible for the criminal enforcement aspect of issues emanating from Citizenship and Immigration Canada and we enjoy a very good working relationship with the department.

According to the United Nations, there are between 20 million and 40 million undocumented immigrants throughout the world at present. It is also clear that North America is the destination of choice for these people. The degree of sophistication of technology these days makes it very difficult for us in law enforcement to establish the authenticity of the people who are coming to Canada. This is exacerbated by the fact that many of the jurisdictions from which these people come are either war torn or do not have the types of systems of records that we have come to expect here in Canada.

The significant impact of this on Canadian society is not to be ignored. There is a significant cost involved in processing the people who come to Canada, in integrating them, in removing those who are not permitted to stay, and in conducting investigations and prosecuting where necessary.

We have recently seen a significant increase in involvement of the criminal element in smuggling and trafficking in humans. We are increasingly concerned about the possibility of injury to or death of the migrants themselves, who some may characterize as being victimized by the process. We are also concerned about the level of physical and sexual assaults, the imposition of long-term labour, extortion and the sorts of thing that are practised by the groups that bring in these people.

Trafficking in women and children is a particular concern. The United Nations' office for drug control and organized crime declared that traffickers of people make an annual profit of some $7 billion a year from prostitution alone. This is part of a larger industry that is estimated at approximately $30 billion with respect to immigration violations.

Our mandate within the RCMP with respect to immigration matters is threefold. Our program works in concert with domestic and foreign agencies at all levels, as well as the community at large, to protect and enhance the quality of life through education, prevention and enforcement.

We have three national priorities. They are, first, combating and disrupting criminal organizations involved in facilitating illegal entry of migrants into Canada; second, investigating unscrupulous professional immigration facilitators who aid and abet the illegal entry of migrants into Canada and, third, timely acquisition and sharing of information and intelligence pertaining to the enhancement of the national program strategy that I have set out.

We believe that the proposed legislation will reinforce our ability to fight the organized crime portion of the migration problem as it links to terrorism, which is underscored by the recent events.

The elements of particular interest to us include the introduction of tougher penalties for criminal organizations convicted of facilitating the entry of migrants into Canada. The bill includes a definition of a criminal organization that is similar to that in the Criminal Code but is somewhat broader, which can help us in the unique context of immigration files. The bill establishes new offences with respect to the misuse of travel documentation. Of great importance is the introduction of the application of proceeds of crime to immigration-type offences.

We are always happy to receive new tools to fight organized crime more effectively. We look forward to the passage of this legislation which we feel will enable us to work better with CIC and other federal enforcement partners in the fight against immigration problems.

The key point we recognize is the degree of cooperation that is needed in combating this global and domestic crime.

In conclusion, we support the intent of the new legislation. We anticipate that new tools will be made available to enhance our ability to ensure the safety of Canadians and the integrity of our immigration system.

Senator Andreychuk: Perhaps you could comment on resource allocation in light of the expectations of the public and government for more law enforcement as more of this type of crime is becoming transnational. Do you feel that you have the resources placed overseas and in Canada to do this job of tracking? I know you have officers overseas, but they must cover many countries. How up-to-date are we in terms of the tools we have? How quickly can you move when your resources must move from country to country and the information must be collected? In the old days you could find one person, one country and then conduct an analysis. People move very quickly, particularly those in the criminal element. Thus, it takes much more information gathering.

From your point of view, has there been a stepped up cooperation among yourselves, CSIS and other agencies around the world?

Mr. Lenton: In regard to resource allocation, currently we have 32 liaison officers stationed at approximately 20 locations around the world. As you have indicated, they are spread rather thinly. In many countries there is no representation. We can only visit such countries periodically.

We compensate for that by developing working relationships with the police forces in those jurisdictions, where possible and when they have mechanisms set up whereby they can conduct inquiries. Of course, it takes time. It takes longer than if we had more people deployed. These relationships must be nurtured. We must work with them, which is difficult when the liaison officer only has occasion to visit once or twice a year.

If we wish to move our protection level to an outer perimeter of Canada, that is, looking from the outside in, then more resources deployed in foreign jurisdictions will be necessary. However, that is not something that can be done in a rapid deployment. There are many mechanisms that must be in place to do that.

With respect to cooperation, you mentioned specifically CSIS. We must also keep in mind CIC has their people abroad. Where possible, we obviously cooperate and work together. However, that is not always completely possible because some of the mandate rules are somewhat different. To the extent that we can work together while respecting the respective mandates, we do so to the fullest extent possible.

Senator Di Nino: It is fair to say that Canadians are concerned, if not outright fearful, after what happened on September 11, 2001? Thus, I will try to focus my questions on the ability of CSIS, the RCMP and other police forces to give Canadians some comfort - if not guarantees - about the job that we are doing in protecting our borders from future bin Ladens or any of his disciples.

In your opinion, do the provisions of Bill C-11 go far enough in giving both CSIS and the RCMP sufficient authority and power to do their jobs?

Mr. Lenton: If you talk to someone who has to exercise authorities and powers, you will find that they always want more, to make it easier, direct, rapid, efficient and effective. I think that would help. This is not the only piece of legislation that will change the way we do business. There are other bills that are currently under consideration. There are initiatives that were in process prior to the events of September 11. I imagine the order of presentation may change somewhat.

Our ability to deal with this is a function of our ability to collect and share intelligence and information to attempt to predict what will happen and then to deploy the available resources to avoid or deal with the event.

Are there other provisions? Off the top of my head, and in the consequences of September 11, I am not sure that there are specific provisions in this bill that we would need. As I said in my opening comments, the more tools we have the easier it is to do our work. It is very difficult to provide all the tools in one piece of legislation.

Mr. Ward Elcock, Director, Canadian Security Intelligence Service: Mr. Chairman, there is no question that the bill is certainly an improvement. As Mr. Lenton suggested, one can always think of other kinds of improvements that one might like to make. However, at the end of the day, a piece of legislation is a balancing act between different interests. In this case, the government has balanced a number of interests and come to a conclusion. The provisions in the bill will certainly help.

Senator Di Nino: In 1998, I believe, CSIS warned the Government of Canada of possible terrorist threats to our country. If I am correct in that, do you still feel that those are there? Are they diminished in any way by Bill C-11?

Mr. Elcock: I am not sure exactly what you mean, senator, by referring to specific warnings. We have noted in public reports that this is a country of immigrants and some of those immigrants come from countries where there are conflicts. In that immigrant population, there are small numbers of people who try to bring those conflicts here. Inevitably, that poses a risk for us as a country. Occasionally, we have representatives from those countries who will want to carry on or advance their struggle in that part of the world or bring the struggle here. There are always risks.

I believe you are referring to public documents, CSIS annual reports and so on. We have alluded to those risks. This is not a perfect world. Is there still the possibility of risks? Yes.

Senator Di Nino: Senator Andreychuk spoke about resources, which is probably the primary tool that is required. Is there anything else that you think this bill should give you to enable you to do the job that you need to do? For example, I imagine it would be very difficult to do a thorough screening and security check on some folks who come from countries where the rule of law either does not exist or has broken down.

Could you comment on that? Specifically, do you think we could provide you with other tools and other resources, other than money, to help you do your job?

Mr. Elcock: Money is always nice, senator. In terms of that particular task, there is not much in addition that could be provided at this juncture. Our ability to identify people when they arrive - sometimes without identification or sometimes with false identification - depends upon our ability to collect information, our ability to share information with others and, in some cases, to develop our ability over a period of time to create a picture of someone about whom we have very little initial information. However, over a period of months, or perhaps even longer in some unusual cases, we can determine who someone is and what their connections are. Sometimes it is just time that we need to do those types of investigations.

Senator Di Nino: One of the other comments made is in regard to the lack of compatibility of equipment, specifically computers, so that you are able to share information with other national and international agencies. That was part of one of the reports as well. Is that purely a function of resources or are there, as some people have implied - with or without justification - also some competing factors amongst the different agencies?

Mr. Elcock: I cannot think of any cases where it is a competition between the agencies. There are security concerns. We have no connections with other systems simply for security reasons. However, we do have secure data links with other organizations, such as the Government of Canada and others abroad, to enable us to move information around.

A large part of incompatibility would be differences in equipment. People in different countries use different equipment because they have different manufacturers, or their government wants them to buy a particular type of equipment or whatever. The lack of standardization sometimes makes it difficult to link up.

Senator Di Nino: Is that the case in Canada as well?

Mr. Elcock: I do not believe so. There has been an effort in recent years to extend communication between departments to ensure that one can move information between organizations even if there are no direct links into the organization itself.

Senator LeBreton: What security reasons would compel us not to share information with others?

Mr. Elcock: I did not say that there was a security reason for not sharing information; I said that there was a security reason for not having data links directly into our database. We have an enormous database that has information on many people - including many Canadians. If we had links into that system, we could not be sure of its security and, therefore, who would have access to that information and for what purposes it might be used other than those permitted by the statute.

Senator LeBreton: Is there a way to deal with unusual circumstances? You are not encroaching on a great deal of personal information about people, but is there a way that that system can contribute when you are clearly in a situation where you are following someone who has criminal intent in mind?

Mr. Elcock: While we do not have a direct link into our system, we have links with other systems in the country and other departments in the government, which allow a direct request of us that would run through our database. Instead of being linked directly into the system, the two systems are "air gapped," so that we must make the physical transfer into our system to find the connections and the information being sought by the other organization. That does not create a problem; it is just a reality of security. Computers have not got to the point where you can guarantee the degree of security at this juncture that is desirable in some databases.

The Chairman: Is your computer system hooked into, for example, the FBI or the CIA computer system?

Hon. Senators: No. We are connected to the FBI and can move data between our organizations, but our internal database systems are not connected, and the same would be true of the CIA.

The Chairman: In a sense, you have what you would call an "air gap" in the same way that you have it between various Canadian organizations and your databank.

Mr. Elcock: Yes, it is the nature of the database.

Senator Di Nino: In 1994, Minister Marchi said that priority in criminal removals was part of the government's mandate. I understand we have some 27,000 people who have been ordered deported and are still hanging around the country. I wonder if either the RCMP or CSIS would like to make a comment on that. Why do we still have 27,000 people still in this country who have been ordered deported?

Mr. Lenton: The way the system works is that once a person is ordered deported they have 30 days to leave the country. There is a requirement that if they do not leave the country, or have not signalled their departure within 30 days, then the warrant is generated and it goes on the system.

Whether or not the people are still in Canada is a subject of debate. They may have left and just failed to declare their departure. They may have left within the 30 days. They may have stayed here for 45 days and then did not want to declare their departure because if they did they might face some kind of risk. You cannot conclude that because there are 27,000 names on the system, 27,000 people are still within the confines of the boundaries of Canada.

We work with CIC in trying to identify the high-risk elements of those. If there are ones that are of particular high-risk, we will make a positive effort to find them and remove them. The other ones become a question of volume and a question of assets available to do that.

The Chairman: This is a simple layman's view of the world. You have an individual who has been told to leave the country. Presumably, at the time that he gets that information, the individual is either in custody or certainly in a place where people know his location because they need to deliver the message to him. I assume it is an administrative or judicial tribunal that has delivered that message, correct?

Mr. Lenton: Yes, the Immigration and Refugee Review Board makes the determination.

The Chairman: Is there then a decision for that individual to leave the country because you regard him as a security risk?

Mr. Lenton: He may not necessarily be determined as a security risk. There is a determination that is made. That is a determination made by the review board.

The Chairman: I am not saying all 27,000 are security risks, I am saying some of them are security risks.

Mr. Lenton: Yes, sir.

The Chairman: However, regardless of the reason the decision is made that they must leave the country, they are allowed to go free. What is puzzling me, as a simple layman, is that if it is decided that an individual should leave the country because they are a security risk, why do we then get into a game of hide and seek? I do not understand why, for those cases that are security risks, they are not simply detained until they are required to leave the country.

Mr. Elcock, do you wish to say something?

Mr. Elcock: There is a provision in the Immigration Act now, section 40.1, which allows the removal of people who are deemed a security risk. It has a wider application but has been used most often in the case of people who are considered to be a security risk. That provision provides for arrest and detention; a number of people are still detained in Canadian jails at this point. Prior to arrest, there can be detention for whatever period of time until the matter is dealt with and ultimately for deportation from Canada.

In cases where people have not been deported, it has been because there is nowhere to send them. This could be because it has been deemed unacceptable to send them back to the originating country because of the feat of torture of execution - an example of that issue is now before the Supreme Court. In other cases, the countries are simply unwilling to accept them, period.

The Chairman: In a case like that, does the individual remain in jail?

Mr. Elcock: We have not actually had a case where anyone has not gone somewhere yet, but in theory that could happen.

In other cases, for example, the refugee is someone who has been found not to be a refugee. Take, for example, the case of Ahmed Ressam. He was ordered deported from the country, but because the country to which he would have been deported was Algeria, and there was a decision that he could not be deported to Algeria, he was allowed to go free. That was a decision taken at that point by the government.

The Chairman: Would that decision have been taken by the Immigration and Refugee Board or by the government?

Mr. Elcock: By the government.

The Chairman: When you say "the government," that is a fairly large institution. I do not mean the specific individual, but where in the government?

Mr. Elcock: Off the top of my head, Mr. Chairman, I am not sure precisely who took the decision, but it would be between Immigration and DFAIT. It would turn on people's views of the regime at that point in time.

Senator Di Nino: The question that I ask, in the final analysis, we do not have an answer to. There are really no controls. We do not have a system to control those whom we order deported. If they wish to walk away, hide or go underground, that choice is certainly available to them. It would be difficult for us to find them. Is that a correct comment on my part?

Mr. Ray Lang, Superintendent, Royal Canadian Mounted Police: I would like to clarify a point. Those 27,000 people who are illegally in Canada are not people who have been ordered deported by the Immigration and Refugee Board. They include all those refugees who came to our shores or to a port of entry, asked for refugee status and were told to return to the immigration department in 30 or 45 days and did not do so. It does not mean that these 27,000 are a security risk to Canada and have been ordered deported. It is just that they have not come back before an immigration officer to deal with their demand.

Senator Di Nino: We understand that obviously not all 27,000 are security risks. There may be very few bad apples among them. However, there are no exit checks. We do not have a list to follow up to ensure they are gone. This is the message I am getting. I am not sure whether that is correct or not. Could any of the three gentlemen help me with that?

Mr. Elcock: I do not do removals, Mr. Chairman.

Senator Di Nino: Maybe you should.

Mr. Lenton: It would be safe to say that if there are 27,000 unresolved cases on the books, one would question the capacity to ensure that the people finally do leave or that the files are concluded by people having left the country. It is, again, a question of resources. Certainly when the warrants are on the system, it is partially a question of where you allocate your resources.

As Mr. Lang says, these people arrive by various routes. Perhaps the biggest risk is at the point where they first enter the country and claim refugee status. Even before we have a firm identification and know who the person is, he or she is allowed to proceed in. They are allowed to proceed by the functioning of the system. They are allowed to proceed into the country on the requirement to report back within the 30 or 45 days, whatever it is, to follow up on their file. If their intent is really to arrive in Canada and go on to some place else, chances are that in the 30 or 45 days they are no longer around here anyway and they never surface again.

Some of them have gone through the full process. I would suggest that those who have gone through the fullest of the processes are those whom we know the best, those whom the system will allow us to risk-assess as to what attention we pay and use the provisions that Mr. Elcock has alluded to, to actually remove or detain them so they do not pose a further risk.

Senator Di Nino: As Mr. Elcock mentioned a moment ago, the Ahmed Ressams of this world have, unfortunately, slipped through the cracks. That is a tragedy that hits all of us and creates this kind of question.

I would like to ask one question for the record, Mr. Chairman.

I have recently read in several articles that the standards for screening business class immigrants may be somewhat less. I do not know what the answer to that is. Just for the record, could one of the witnesses comment on that?

Mr. Elcock: That is not true from my point of view, Mr. Chairman. We would screen people in that program as in any other. At the end of the day, the decisions in all cases are taken by Immigration, not by CSIS.

Mr. Lenton: Other than to comment that the admissibility is a CIC decision, I would have no more comment on that, unless Mr. Lang has a comment.

Senator Fairbairn: In a similar vein, with regard to tracking people, Senator Andreychuk noted the burden that is put on the RCMP and others in the system in the various countries around the world. It is a very difficult role you must play. With regard to your linkages between other systems and institutions in the area of information involving immigration and refugees, is it fair to assume that an important one of those linkages would be Interpol?

Mr. Lenton: Interpol is one of the linkages. Interpol is an agency that links different police organizations in order for the work of one organization to be executed in another country. Yes, we have linkages with them.

Senator Fairbairn: We used to have a former commissioner there, did we not?

Mr. Lenton: That is right. Interpol, at least historically, is a clearinghouse as opposed to an investigative agency. It collects information and standardizes it so that if a source country can ensure that documentation is acceptable for, in the case of a warrant, execution in the international forums, it gets sent out to those countries that would have an interest in doing it.

The Interpol bureau of Canada is in fact the RCMP office and it is housed in headquarters. When it comes in here, we direct it either to RCMP jurisdiction or other police jurisdiction, depending on what work is required. The intelligence part and the information are exchanged to the extent that it is possible, yes.

Senator LeBreton: As I listen to this testimony, I am thinking about the ordinary Canadian out there who is watching it. I am particularly thinking of the case where a gentleman - and I use the term loosely - was in Canada for all these years, apparently being tracked by the police. We have a system whereby he stays in Canada and, according to a very good documentary on one of our television networks the other night, was traced all across Canada. He went to Vancouver Island with enough explosives to blow up the ferry and all the people and cars on it, and gets all the way through before a woman customs agent in the United States stops him. He could have been successful in blowing up the Los Angeles airport.

We sit here listening to testimony that tells us that we have a system that could not catch that man because a decision was made between Immigration and Foreign Affairs that Algeria was thought to be hostile to him. Can you understand that Canadians would be very alarmed at hearing that?

My question is simple: Is there anything in this bill that would allow you, either CSIS or the RCMP, to put that man behind bars before he ever gets a chance to do what he intends to do? You can understand why the Canadian public are alarmed at our "porous borders" when they see a show like the one the other night and read about this person.

We listen as the highest law enforcement officers in our country, the RCMP and CSIS, tell us that this was a decision of Immigration and Foreign Affairs and we could not stop the man.

Is it any wonder that the Canadian public wants something done about the security of our borders? I am appalled by that answer, frankly.

Mr. Lenton: When people enter the system, there is a process they go through. There is a methodology they go through. They go through the system.

I do not like to speak in terms of specifics with any given case, although we know which one you have in mind. The person is subjected to a process. There are decision points in that process. The people who are empowered to make those decisions do make them. I, as a police officer and my confrères in the frontline must respect the rights of every individual we come up against.

A decision is made with respect to the person's status in Canada. If the police verify that there is an outstanding warrant for them, that is why they are on the system. If the police check them, they come to our attention in the normal course of business and they are arrested and dealt with as anyone else would be.

We cannot randomly decide that a person walking down the street must be one of the 27,000 and then arrest, identify and run him or her through the system. We must work within the parameters of law as well. We can agree or disagree with what the status of a person is. We can agree or disagree with the discretion that was applied by those empowered to make the decision. At the end of the day, we must look at all individuals according to his or her rights, status and situation vis-à-vis Canada at the point that we interact with them.

In the case that you mentioned - or in any other case - if someone was verified and the police had reason to stop him or her, he or she would be stopped. If he or she were in possession of an instrument that would do harm or any other form of contraband, we would act accordingly. We cannot just choose people and shake them down for any reason. We must have a reason to interact with them and follow up on them.

With regard to the case you mentioned, I am not privy to what was known of the tracking and activities, and what the person was doing.

Senator LeBreton: CBC-TV was. They tracked him even to the point of telling us how to make a bomb.

Mr. Elcock: Just to add to what Mr. Lenton has said, the RCMP works within the law, and at the end of the day we do not arrest people. We do not have that capacity.

In the case of Mr. Ressam, we were aware that Mr. Ressam had left the country at an earlier period of time - I think that is mentioned in the show - and we knew where he had gone. We did not know that he had re-entered the country, nor did we know that he had a legitimate Canadian passport issued under the name of Benni Norris. He re-entered the country by coming through Los Angeles. At a later time, we had heard rumours that he was back in Canada, in British Columbia. We had not been able to find him, in part, presumably, because we were looking for Ahmed Ressam and not Mr. Benni Norris. Indeed, he had not made contact with people that we were also looking for. At the end of the day, there are risks in this world.

Unfortunately, in a democratic state, there are limits to what the police and security services can do. Some people will slip through the net. I would have liked to have found Mr. Ressam before he crossed the border. In the circumstances, we benefitted from what is important in any relationship in any operation to try to reduce the risks of terrorism, a layered defence, if you will. You must have not only good intelligence and police services; you must also have alert border guards and customs officers. All those things in this case dealt with the problem.

Senator LeBreton: Thanks to a woman, an American customs officer, I might add.

The Chairman: Would the situation have been any different had Bill C-11 been in place at the time? I am asking you, Mr. Elcock, that question because in your testimony before the House of Commons, I do not wish to read your verbatim transcript -

Mr. Elcock: I have it with me.

The Chairman: There is a long question at the bottom of page two, which is your testimony on Bill C-11 before the House committee, in which you said:

...in a perfect world ... I believe that we would have had sufficient information to advise CIC that Mr. Ressam fell within an "inadmissible" class of persons. If again Bill C-11 had then been in effect, relevant classified information would have been available to CIC during an admissibility hearing, at the time of entry, during a detention review or appeal before the Immigration Appeal Division.

Can you explain what you could have done had Bill C-11 been in effect that you could not do beforehand?

Mr. Elcock: Let me read the lines that precede it, and perhaps that will explain it:

Under the new Act, the Service would have been involved in front-end screening and, since he arrived with an altered French passport in another name, I believe we would have consulted the French authorities, whom I believe at the time had Ressam's fingerprints, his photograph and who were aware he had been travelling undercover to and from Corsica in 1993.

We are all talking about "ifs." Ifs are difficult things at the best of times. However, if front-end screening - which is provided for in this legislation - had been in place, there would have been a chance at picking him up earlier rather than later.

Senator LeBreton: I would come back to the question of resources: Could what we are doing in Bill C-11 have prevented all of this activity by Mr. Ressam or Benni Norris, as he later became known? If we are going to do all this front-end screening, we will certainly need more resources.

Mr. Elcock: The resources for CSIS are provided for already and have been waiting for Bill C-11 to pass for us to get a sign-off from Treasury Board to get the money, but that has already been built into the system.

Senator LeBreton: Sufficient resources?

Mr. Elcock: For front-end screening, yes.

Senator Di Nino: That is very good. That gives us a reason to pass Bill C-11.

The Chairman: If I may go back to your comment about things that would be different, Mr. Elcock, if Bill C-11 were in place. Since September 11, a number of our allies have announced policy changes and proposed legislative changes. As reported in the media, I have seen the changes proposed in Germany, France, the United States and so on. I presume both the RCMP and CSIS have been following those changes with some interest. I realize you cannot comment on a policy question or are happy to say that those are administrative. However, I assume you know more about those changes than what we read in the newspapers. Will organizations comparable to both of yours in other parts of the western world - particularly among our allies - now have tools available to them that you will not have even if Bill C-11 is passed? In other words, are you looking with some modest envy at the resources in terms of tools that your colleagues in other countries of our allies appear to be about to get?

Mr. Elcock: Most of the changes I have seen reported are changes for access to border entry and so on. They have less to do with the intelligence services, which are my counterpart, and not police forces and departments of immigration.

We had, before these events, some broader powers than the FBI does in terms of investigation and fewer limits in some areas than the FBI did. In a sense, we are no further behind them now. We are probably still equal to them in many things. At this juncture, I do not see anything that I particularly envy on the part of my confrères in the intelligence world.

The Chairman: You are using the FBI - I know the answer to the question, but the people watching on CPAC may not - rather than the CIA because your focus of operation is inside Canada as is that of the FBI within the United States, whereas the CIA operates only outside the United States.

Mr. Elcock: That would be a mischaracterization. We operate both within and outside of Canada.

The Chairman: Are there things the CIA can do outside the United States that you cannot do outside Canada?

Mr. Elcock: The CIA has a broader mandate to operate outside the country than we do. In the case of threats to the security of Canada, we have essentially the same mandate.

The Chairman: Would either of the witnesses from the RCMP respond to the same set of questions? Are some of your colleagues now getting tools that you would love to have?

Mr. Lang: The Australians have a policy in place whereby if a refugee comes to their shores without the appropriate documentation or without any documentation at all, he will be detained up to the time that he is appropriately identified. Eventually, he will be sent home.

We do not have that in Bill C-11. That would be a good tool to have so that refugees who come to Canada without the appropriate tools and whose identities seem questionable can be detained and eventually deported, instead being given "the green light" to disappear on the streets.

Mr. Lenton: As the world responds to the activities of September 11, new things will be created - things that were not anticipated prior to the height of awareness around terrorist activities. Keep in mind that much of this bill is also geared to work with organized crime in general.

It would be unfortunate if this legislation were held up. This will give us extra tools that we can put to work fairly quickly. There are other legislative packages going ahead that will enhance our tools and our ability to respond to the overall threat that terrorism and the larger group of organized crime pose to Canadians on a daily basis.

We can ask for more, prolong the debate and eventually get something somewhat better a long time in the future. Or we can get what we have now, start working with it, analyse what is being done around the world, analyse how Canada and Canadian policy can dovetail into that and still respect the fundamental concepts of Canadian society as we know them and would like preserve. Later on we can look for opportunities to enhance the tools that are put in the hands of law enforcement and regulatory agencies to deal with the situation.

Senator Di Nino: The public policy process is a long-term process. One of the things that hopefully we learn in these initiatives is how to improve legislation in the future, not just the legislation that we are dealing with right now. It would be useful if you share with us some of your knowledge and information to help us reach a process where the public policy created by the Parliament of Canada would be something that would serve Canadians better.

Notwithstanding the horrific tragedy of September 11, which someone described to me as "brilliantly evil" - a term that I find unnerving - we still have other issues to deal with, such as criminals and those who come to this country not for the right reasons. Among those 27,000 people, there are likely a few who have been identified as bad apples by agencies such as CSIS, the RCMP and other police agencies. Will Bill C-11 help to you deal with that?

Mr. Lenton: Our primary interest or role in this is the question of dealing with organized crime. It will help us in that respect. It does create more substantial penalties. Hopefully those more substantial penalties will encourage the judiciary to take a more serious look at the immigration offences that are brought before them. We hope that, through the information process and the use of expert witnesses, we can portray to the courts the impact of immigration; particularly those who traffic in people for profit as opposed to the migrant who tries to seek a better life and is picked up by the system.

If we can convey to the judiciary the seriousness and the consequences of some of the things I mentioned earlier and make the penalties higher - the judges always have a range of penalties and could make the penalties at the high end - that will help us to improve our ability to stop the manipulation of the immigration system. We focussed today to a great extent on the terrorist concern, and that is a great concern. However, the organized crime is a major concern as well, and the human suffering to which the migrants are exposed because of the involvement of organized crime is another component to consider.

There are better tools there, but it comes down to resources. How many resources can be made available when the legislation is actually ready and the regulations are ready to deliver? Mr. Elcock has indicated that, in the first round of things, resources are being made available to CSIS. We do not have the resources, and, as a matter of fact, I do not think there are any in the first round at this point.

However, if you define life in terms of before and after September 11, the approach was that we would get the legislation in place, and then while the regulations were being formalized, we would be seeking alternate avenues to get the resources that we need to do that. Various funding initiatives are being discussed, and we do not know where the government will go and what they will fund based on September 11. All of those factors will come into play in to our ability to make this a useful tool.

Senator Di Nino: I do not know if you were here when the folks from the ministry were here. I asked them if the $500,000 penalty, which is the maximum that can be imposed now, had ever been imposed. The answer was no, it had never been imposed. I agree that there must be some recognition that the penalties are there as a deterrent, but if we do not use them they will not be a deterrent.

My last question to both of you deals with a term that we have bandied about for the last couple of weeks, and that is harmonization with the U.S. on border controls and security and so on. The devil is in the details, but I wonder if both of you could make one quick comment on whether you think there would be some usefulness in discussing with the United States some form of wider cooperation on border control than has been the case to date.

Mr. Elcock: Mr. Chairman, that is not really a subject on which I have much to contribute. Harmonization has relatively little impact on us except in the end consequence of how it might form some of our investigations.

As an organization, we have very close relationships with the American services, and we share information on a wide basis. That is, in a sense, harmonization, because all we really do is share information on potential worries and targets. Harmonization is already there.

Mr. Lenton: I would echo some of the same things. The concept of harmonization is something that we in the police community will factor into our reality. What we will do and what we are currently doing, irrespective of where the harmonization debate goes, is a question of us working better together and developing in the international law enforcement community ways and means of dealing with trans-jurisdictional investigations.

This is not the only area where the problem arises. Consider the area of high-tech crime, for example, computer crime, or anything related to the Internet. By way of example, we have made significant inroads in something called "Project Colt." It is well known and running in Montreal now. The investigative team on the ground in Montreal, led by us, comprises RCMP investigators, members of the Quebec police force and the Montreal police force. Interestingly, there are people from the FBI, as well as the U.S. Postal Services, permanently on the ground. The boiler houses are located in Canada; the victims are essentially located in the United States.

By having such an international investigative team in place to work together, they are able to more rapidly respond to the circumstances of the situations that arise. We have a similar situation in Toronto and in Vancouver, along those investigative lines.

We cooperate on a daily basis with all of our agencies and partner agencies in the United States and, indeed, around the world. Increasingly, that is the norm, but it is not easy because each jurisdiction has different rules of evidence and different systems to observe.

Senator LeBreton: To what degree are the RCMP involved right now with the customs officers at the border points between Canada and the United States? Is there a great degree of cooperation? Do you anticipate more interrelated work? Exactly what is the status of the RCMP's involvement with our customs officers at the border?

Mr. Lenton: Our role in the customs program is not unlike our role in the immigration program. We tend to become involved in inland investigations, particularly investigations where organized crime is involved.

As far as the border specifically is concerned - the ports of entry - they are primarily the domain of customs. We work under a Memorandum of Understanding with customs whereby the RCMP have a role where it concerns the areas between the recognized points of entry. We do random patrols and there is technology in place to monitor the situation. That is how it works on a day-to-day basis.

Of course, we have task forces with members of CCRA on board with us as part of the investigative team. We have the capacity to share intelligence and to work with them on that level. There is a working relationship. Until now, there has not been a uniformed RCMP officer standing in the customs house with the customs personnel. Will we go that far? I do not believe that that is necessarily the best place to deploy our scarce resources at this time.

I believe that we should create an investigative capacity to deal with it in a different way. We will see where the developments take us over the next weeks and months.

The Chairman: I thank the three witnesses for being with us this afternoon.

Our next witnesses are from the Immigration and Refugee Board: Mr. Showler, Chairperson; Ms Ouimet, Executive Director; and Ms Daley, the Senior General Counsel. Welcome.

I should tell all honourable senators, as a number of you are from Atlantic Canada, that their real claim to fame is that two of them are Dalhousie graduates. It is nice to see that the "Maritime Mafia," as they say, are still taking over.

Thank you very much for coming. Mr. Showler, you have an opening statement that has been distributed. We will then proceed with questions.

Mr. Peter Showler, Chairperson, Immigration and Refugee Board: Mr. Chairman, you have already been introduced to my colleagues.

The remarks that I will make now will be an abbreviated version of those that have been provided to you.

[Translation]

I would like to begin by explaining the role of the IRB in the context of the existing legislation. Rest assured that I will keep my remarks short in order to allow you as many questions as possible.

[English]

I will first address the organization of the Immigration and Refugee Board. The IRB is an independent, quasi-judicial tribunal - by far the largest in Canada, incidentally. It reports to Parliament through the Minister of Citizenship and Immigration.

We render over 50,000 decisions per year. Last year, the board, through its three tribunals, rendered approximately 54,000 decisions. The IRB consists of three divisions, each being a separate tribunal with a unique statutory mandate. Our overall goal is to make well-reasoned decisions on immigration matters, efficiently, fairly and in accordance with the law.

[Translation]

The Board has slightly over 1,000 staff, including Governor-in-Council appointees and public servants. While our headquarters is located here, in the National Capital Region, we have regional and district offices in Toronto, Montreal, Vancouver, Ottawa and Calgary. In addition, the Board holds hearings in most major cities in Canada and in numerous detention facilities.

Our largest division, the Convention Refugee Determination Division, decides refugee claims made within Canada. The 180 CRDD members are expected to finalize about 30,000 refugee claims this year.

The Adjudication Division conducts inquiries for people alleged to be inadmissible to or removable from Canada and holds detention reviews for those detained for immigration reasons. A total of 28 decision-makers, who are appointed under the Public Service Employment Act, expect to hold 3,600 inquiries and 11,000 detention reviews this year.

The third division, the Immigration Appeal Division, hears appeals from refusals of sponsored applications for permanent residence by family members, appeals from permanent residents and other individuals. Twenty-seven decision-makers are expected to finalize 4,400 appeals this year.

[English]

The IRB does not select refugees from abroad or remove people from Canada. These are two very common misconceptions. These responsibilities rest with Citizenship and Immigration Canada.

I would now like to make a few brief comments on the judicial independence of the tribunal. These matters may arise during our discussion of the proposed legislation.

Judicial independence includes two factors that are equally important. The first is institutional autonomy, which means that our responsibilities are carried out separately from the executive branch of government and other federal departments.

The second factor is the independence of individual decision makers. IRB decision makers render their decisions solely on the evidence placed before them and in accordance with the Immigration Act, the IRB rules, the Canadian Charter of Rights and Freedoms and the principles of natural justice.

Just as the IRB enjoys institutional autonomy, individual decision makers are free to decide cases without interference from the chairperson or any other party external to the proceedings.

The IRB played a meaningful advisory role throughout the various stages of drafting the present bill. In actuality, the IRB carried out that role from the first stages of the proposed legislation, when it was Bill C-31, and the white paper that preceded that bill.

While the IRB does not propose or initiate new legislation or regulatory policy - that is not the role of an independent tribunal - we have advised the minister on the potential effects of proposed policies that either directly or indirectly affect the operation of the board.

In addition, we have offered advice on the drafting of particular provisions of the bill that directly relate to the work of the board. The board's comments are usually restricted to matters of law, clarity of drafting or feasibility of implementation.

The minister has listened to the board's suggestions and has responded where recommendations were consistent with government policy.

In regard to the impact of the proposed legislation on the IRB's operations, the bill both affirms and alters the role of the IRB. It will have a significant impact on virtually all aspects of the IRB's operations and will require significant preparation to ensure that it is effectively implemented.

Under Bill C-31, the Convention Refugee Determination Division, or CRDD, becomes the refugee protection division. Its jurisdiction is expanded to consolidate all protection grounds within one decision-making process. That is one of the principal changes.

Under the new bill, there are three grounds under which a person will be granted protection. The first is convention refugee status, which is the only ground available under the present law. The second is protection under the Convention Against Torture. The third is protection from a risk to life or of cruel and unusual treatment or punishment. Previously, the third ground remained within the Department of Citizenship and Immigration as part of a pre-removal process. Any areas that involved risk to a person's safety were all consolidated within the board.

The vast majority of protection decisions will be made by a single member, in contrast to the present model, where claims are normally heard by two-member panels. If you wish to ask questions about that later I can explain some of its technicalities. There are some cases now being heard by single members.

Single-member hearings are a far more efficient means of determining claims. Any perceived disadvantage is more than offset by the creation of the refugee appeal division, the so-called RAD, where all refused claimants and the minister have a right of appeal of RPD decisions. I think you understand that under the present model, there is no appeal whatsoever. There is judicial review only to the Federal Court. That review is only available with an application for leave to the court. The majority of applications for judicial review are denied at the leave stage. About 10 per cent actually receive judicial review by the court.

Appeals to the RAD will be in writing only, and will be reviewed by decision makers experienced in refugee matters and who will have the power to affirm the RPD decision, or overturn it and substitute their own decision, which is unavailable under judicial review. In exceptional cases, where it would be necessary to hear additional live evidence, it can refer the case back to the RPD for a directed rehearing on certain points of evidence.

It is expected that the RAD will have two different but complementary results. It can efficiently remedy errors made by the RPD. Of equal importance, it can ensure consistency in refugee decision making by developing a coherent, national jurisprudence in refugee law, which is currently unavailable.

The Adjudication Division would become the new immigration division. The role of this division is an essential part of Canada's immigration system. In particular, decisions relating to detention have become more important with the increasing pressures related to global migration. While the fundamental mandate of the division is unchanged, it is worth noting that positive amendments have been made to clarify the powers of detention and to improve the integrity of the system.

Under Bill C-11, the Immigration Appeal Division will continue to hear appeals of removal orders and sponsorship refusals. However, the right of appeal will be eliminated for certain individuals, including serious criminals, members of organized crime and those who pose a security risk. They will no longer have access to the appeal division, particularly when they are permanent residents seeking to remain in Canada and have been ordered removed. In addition, the division will now hear appeals from those who have lost permanent resident status for failing to meet Canadian residency requirements. That is a new provision.

In conclusion, the IRB remains committed to fully supporting the implementation of the proposed legislation. We are confident that the IRB will continue to render decisions fairly, efficiently and in accordance with the law, which is basically a summary of our mission statement. We will do it now, during the transition period, and after any new legislation is adopted by Parliament.

I wish to emphasize this point, especially in the context of the tragic events of September 11 in the United States. The world has changed - we all know that. However, the IRB must and will continue to fulfil its mandate appropriately.

Senator LeBreton: Mr. Showler, is there a backlog at the moment, and if so, of what does it consist? When you switch over to the provisions of Bill C-11, what kind of administrative problems will that create, if any?

Mr. Showler: Mr. Chairman, as you know, "backlog" is seen as a dirty word. We like to use the word "inventory." However, we can be direct in terms of what the case inventory is. Currently, it is approximately 34,000 claims. You will see in the information provided to you that in the last three years, there has been a very significant increase in the number of refugee claimants coming to Canada. In the 1990s, we received, on average, about 25,000 claims per year. In the last three years, that has increased, first, to 31,000. Last year we received 35,000 claims. As a result of information received from the Department of Citizenship and Immigration, it is our expectation that within this fiscal year, which has not yet ended, we will receive approximately 45,000 claims. That is a significant number. Our inventory has been creeping up slowly. At one time, it was at 23,000 claims, which is a reasonably healthy number, although we would like to see it below that. It did creep up to 39,000 and, recently, it has risen to 34,000.

You are correct that we certainly must have the resources to be able to respond. If, at the time of implementation, there are added cases in the system, they would come through to the board for a hearing of those claims.

The Chairman: You used the word "inventory." I assume by that you mean cases that you have not been heard and decided.

Mr. Showler: That is correct. We relate inventory, in particular, to processing time, because there is a connection between them. We have actually managed to keep our processing time fairly low. I am sure you are aware that in a report of three years ago, the Auditor General recommended that processing time not exceed 12 months. We had taken it down to as low as 8.7. It has crept up with this inventory. Currently, we are just over 10 months in our processing time. We are still below the 12. However, if we do have increases in the inventory, those will relate to processing time. Essentially, that is not an issue of the bill, but an issue of resources. Certainly we have been speaking to Treasury Board. We are hopeful there will be resources available to address the issue.

The Chairman: Could you define some of your terms? When you say "processing time," do you mean time from the initial arrival of the refugee until determination at the first stage, or the second stage?

Mr. Showler: No, we measure processing time from the referral to the Immigration and Refugee Board to the point where a final decision is made and communicated to the claimant. There is an eligibility phase first. I think you understand that under the current legislation, the Department of Immigration determines whether or not the person is eligible to be referred to the board. We have no control over that period of time. We do not know when it occurs; therefore, we measure our processing time from the date at which the claim is referred to the board.

The Chairman: Is a fair amount of that processing time people waiting in inventory?

Mr. Showler: Yes. Do you mean once they are referred?

The Chairman: Right. I am trying to understand your terms. When you use the word "inventory," are you talking about people who have already been referred to you but whose cases have not yet been settled?

Mr. Showler: That is correct; it has not been decided.

The Chairman: To go back to the screening phase, before they get to you but after they have arrived in the country, do you know now roughly how long that is on average?

Mr. Showler: No, I do not, and you would need to ask the department that question.

The Chairman: I am trying to understand the time between the arrival in the country and the ultimate disposition of the case. There are two components. You have told us 10.5 months for the second component. I am trying to understand the first component.

Mr. Showler: You would need to ask the department that question. There is variance within regions and I do not know the answer.

Senator LeBreton: How do you know where these people are and whether they will appear? If they do not appear, is there any way that you can recommend some system of monitoring or control?

Mr. Showler: When they are referred to the board, they are presented with a personal information form that they are obliged to fill it out. This form also includes the requirement for identifying their counsel and delivering it to the board within 28 days. In actuality, it is 35 days, because there is a mailing rule. If they fail to do that, the board immediately commences abandonment proceedings. They are informed that if they do not deliver those documents to the board, their claim will be abandoned.

In addition, in Montreal about a year and a half ago, the board commenced an early interview process as a pilot project that has proved to be quite successful, where they must attend before the board within five days of their referral. At that time, we conduct a preliminary interview and inform them of their legal rights. They also must have a medical examination in order to attend that interview.

We do not yet have the means or ability to develop that across the board, partially because it means also working with provincial partners. Certainly we track the claimants. Once they deliver their personal information form, they usually have counsel and we use the counsel as a "mailbox," so to speak. Often, there is continuing communication between the claimant and the board. We often make certain demands on them for additional identity documents. We deliver country information packages to them prior to the hearing, and there is a discourse going on during that period.

Senator LeBreton: When they fall within the category of having abandoned their claim, where do they go?

Mr. Showler: I am sorry, I cannot answer that question. I can tell you what we do when we abandon the claim. We make a formal decision that the claim is abandoned and we then advise the Department of Immigration of that. They are no longer in the refugee stream at that point.

Many of these people will already be in the country illegally, and, ordinarily, are subject to a conditional removal order. I assume Ms Atkinson has explained that. There are certain conditions that could lead to that conditional removal order becoming effective. One of those is if their claim is abandoned or determined to be negative at the end of the refugee process. Therefore, we simply refer it back to the Department of Immigration, and at that point, they commence their removal proceedings.

Senator LeBreton: For your purposes, is that the last you will hear from them?

Mr. Showler: That is correct, unless for some reason they come back, and sometimes there are quite legitimate reasons for returning. Many of these claimants do not speak English or French. Sometimes they are confused. Many of them change addresses, because they have just established themselves in Canada, and mail is not forwarded. Some of them are confused, so we do have a process by which they might, therefore, apply to reopen their hearing under certain circumstances.

Senator LeBreton: What percentage of claimants fall within the abandonment category and what percentage of that group return?

Mr. Showler: I can tell you that approximately 15 per cent are abandoned. Of those, a small percentage comes back. I cannot give the exact number, however.

Senator LeBreton: Would the 15 per cent abandonment be a good round figure for the people who actually abandon their claims?

Mr. Showler: Yes, that is correct. That is a round number, but it is a fair number. That number has been relatively constant over several years.

Senator LeBreton: For the small percentage that does come back, must they start the process over, or do they face any kind of reprimand for abandoning their first application?

Mr. Showler: First, there is a judicial decision on whether the case will be reopened. They must provide a reasonable explanation. A reasonable explanation is not just that they changed their mind or they went to Florida for the week. It must be a reasonable explanation that we can accept. Several of the applications are turned down. If the feeling is that they are attempting to abuse the process or treat it in a trivial manner, the cases will not be reopened. They are still abandoned.

Senator Fairbairn: As I am sure we are all aware, the arrival of this bill in committee at this time is in a context that we definitely had not anticipated a few weeks ago. That makes the bill, its contents, and the degree to which it assists you and others in the system who are affected by it, important for us to understand.

You mentioned this afternoon in your remarks - and I read about it earlier - the significant change to the operation of the refugee protection division, in that the vast majority of protection decisions will be made by a single member of the board, in contrast to the past, where I understand there have been two. You are expressing approval of this, and presumably you think it will be far more efficient in determining claims. Could you explain that? This is such a difficult area, where you are dealing with people who have all the problems of language and coming from stressful situations in faraway lands. This is a most important part of the system. Can you tell me and my colleagues why one is better than two in trying to assess their situation?

Mr. Showler: I would be pleased to, but I would like to clarify something. When I say it is better, it is not just more efficient, but actually better. The combination of efficiency and quality is better because I am not simply talking about a single member. The model in the new bill is the combination of single-member decisions at the first level, but with a second level in the form of a refugee appeal division. When I say that I think it is a far superior determination system, both more efficient and better quality, I am talking about the whole package, not simply the single member.

However, the single member is quite interesting. There are a couple of points to note.

First, the way the legislation works now, two members can hear a claim. If there is a disagreement between them, where one chooses positively and one negatively, then the "benefit of the doubt" principle means that the positive decision will prevail. Fewer than 1 per cent of the board's decisions are split. There is virtual unanimity in most of the decisions. That is an important point to understand, as is the fact that the board has made considerable progress in the last three years in making single-member decisions. Under the present legislation, it can be a single-member decision with the consent of the claimants and their counsel. We have had considerable success in promoting single-member decisions with the consent of counsel, because they are satisfied that they will receive a fair hearing. Not only with regard to efficiency, but also in terms of the quality of the decision, we find that a single member who has the trust and confidence of the parties delivers a faster decision, simply because there are fewer people asking questions. They are quite capable of identifying the appropriate issues, the appropriate evidence, and of making an appropriate decision that is well reasoned and of equal quality.

There are complexities involved in scheduling two members. You can well imagine the problem, because members do not always sit with each other. Consequently, it is easy to develop a scheduling logjam after a while, particularly if a case is adjourned and is returning. The efficiencies are enormous.

I would not be comfortable saying to you that a system of single-member decision makers, without the refugee appeal division, would be a better system. I could not say that, in good conscience. The refugee appeal division will have experienced refugee decision makers providing access to appeal for not only every negative claim, but also for the minister where she is unhappy with any of the positive decisions. That focused review is a full appeal, rather than the limited judicial review found in the current model. That is why it is a superior model. Again, my colleague might want to add something to that.

Senator Fairbairn: Thank you. That is very helpful.

The other question that has been raised on this issue, and continues to be raised, is the number of cases with which you might deal - as you suggested, perhaps as many as 45,000 applications - where people are seeking to come before you to enter this country. Before you arrived, we spoke with members of the Royal Canadian Mounted Police and CSIS. Mr. Elcock, from CSIS, indicated that already they had received word, through the government system, that they would have increased resources to deal with a situation that is more intense than it was three weeks ago. They are confident that they will receive help with their resources. The RCMP also sounded hopeful.

You have quite a job to do. Currently, with the bill changing the format of how you process these steadily rising claims, have you received an indication that your resources will also be increased to match the kinds of responsibilities that you are being given?

Mr. Showler: We fall within the same category as the RCMP, in that we are hopeful. There has been no confirmation yet. The 45,000 figure is a projection at this point. It is based upon an estimate. The tremendous events of September 11 may dramatically alter the nature of refugee flows into Canada over subsequent months. However, we have had significant increases in the past two years. We have brought that to the attention of Treasury Board and we are extremely hopeful that there will be resources available. Comparably, although the board is not an investigatory body, it may well be that we will be called upon to provide various kinds of information at certain times. If we have to respond to those security requests, whether from the Department of Immigration or whatever, we may need additional resources for that. We expect that those resources will be available.

Senator Fairbairn: We are looking at the bill as it is now, not what it might be or what circumstance might produce even more changes down the road. As it is currently, and given the change in the way that you will do the processing, the bill is advantageous to you in helping you complete your tasks. Could you indicate to us any other aspects of the bill that will make your work easier or, as you see it, make the process easier for those who legitimately want to come to Canada?

Mr. Showler: One is the provision that there will be a deemed referral within a 72-hour period, because there have been delays at that phase. I anticipated there might be questions in this area.

Senator Fairbairn: What does "deemed referral" mean?

Mr. Showler: We have referred, under the present system, to eligibility determinations by the Department of Immigration. Those determinations can be lengthy and they can be delayed. It depends upon their own resources and the number of claimants making those applications. There can be significant delays at that level. These are people who are already in Canada and they currently have a quite anomalous status. They may simply not even be formal refugee claimants yet, in the sense that they have not been referred to the board. The deemed referral means that, once they come forward and make a refugee claim to the Department of Immigration, that will be referred to the board within 72 hours and we will commence our processing procedures. That will vastly accelerate the process of deciding the claim. At the same time, it brings the person more immediately to our attention from the point of view of going through the process I described; that is, seeking personal information forms and finding more information about these people.

However, there must be a counterbalancing issue in regard to security. The Department of Citizenship and Immigration will still be continuing its security reviews. I now understand from the minister that it is an enhanced security review at what is called the "front-end processing." Any time that they identify someone who is a security risk and is of concern to them, they have the authority, under the new bill, to "claw back." In other words, they can provide the board with notice that the person is of concern to them and could potentially be before an admissibility hearing. At that point, the hearing process is suspended and the person is referred back to the Department of Citizenship and Immigration. If they have significant concerns about security issues, they would then refer it to an adjudicator to determine whether the person is actually admissible to Canada. One of the new provisions of the bill is that persons who are inadmissible for security issues, serious criminal activity or organized crime - that is, those who are ordinarily referred to as the section 19(h) serious security concerns - will no longer come through the refugee stream. They will be referred directly to a pre-removal process. They will have a determination, but it will be within the context of removal. They do not have access to the refugee system. That is the significant change.

Senator Fairbairn: Thank you for your explanation. I certainly could not quite grasp that phrase, and it is important.

Mr. Showler: We are attempting to have the best of both worlds, whereby we can process claims rapidly, while at the same time, people can be quickly removed from the refugee stream if it is inappropriate for them to be there.

The Chairman: I have a follow-up comment. In responding to Senator Fairbairn, Mr. Showler, you talked about "rapid processing." Earlier, you talked about the average time for that as being 10 and one-half months.

Mr. Showler: The average time would be 10.3 months. We give ground grudgingly on that.

The Chairman: I would like to know whether 10.3 months is considered rapid. If not, what is rapid or what is reasonable? It sounds to me as though rapid processing takes close to one year. By the way, I am not being critical, because I understand the volume. However, it seems to me that we can only have a sense of whether the system is working well if we understand what you believe is a reasonable time frame.

Mr. Showler: A few years ago, the board was asked this question by Parliament and was asked to set a standard. The goal that was set was six months for processing time. We have since looked at that as an average length of time, and that would be attainable in ideal circumstances. To be fair, lay people do not understand that it takes quite a while to decide a refugee claim for various reasons - some of which you have already asked about.

When a person comes to a country and makes a claim, they must retain counsel, and sometimes they have access to legal aid and sometimes they do not; it depends on the province. They have to locate counsel and tell their story, and often they are confused and have difficulty in explaining it accurately. That is a fairly tight standard - a time frame of 30 days - to obtain the personal information forms, given provincial legal aid procedures. We have a mail-in rule of seven days, so it is usually at the 35-day point that we want to see those documents.

After that, the board makes an analysis. This is not a simple analysis. We actually try to process those cases as quickly as possible, so that means a triage. We look at the case and try to fit it to one of the streams. The board is very specialized, and we assign teams to certain countries and areas, because we are far more effective if we have decision makers and refugee claims officers who know a lot about particular countries. Thus, we divert it to that stream. That is a paper process that takes a little time. We decide if we can expedite that case. Certain categories of cases can be expedited because they fit within the definition of a country where there is already a high record of human rights abuses and from where there is a high acceptance rate. However, we have to review it for that proceeding.

We have already said, and as you well know through the press, that a large number of claimants come to Canada without proper identity documents. Either they do not have any documents or they are not the proper documents. In those cases, we give them time to obtain documents from their country of origin. Often, they are unable to obtain travel documents, especially if they are refugees who fear state persecution. There are other reasons why genuine refugees do not have documents, so they need time to obtain things such as birth certificates, school records or, sometimes, hospital certificates. If they have been badly beaten and abused, those kinds of medical records may be available. It does take time to develop the case.

We try to complete each of our cases at hearings in one half-day. I must tell you, that is an extraordinary accomplishment. Canadians should be proud of the fact that we succeed in most instances. We are hearing cases from countries where the evidence can include events that are remote from Canada, where most of the testimony takes place through interpreters, where they have difficulty telling their story, and where there are all kinds of inherent confusions. So, on life and death issues, we still manage to hear the relevant evidence within one half-day.

In order to do that, we need adequate time to ensure that the case is fully prepared. We do an examination of the case to ensure that we have the appropriate documentary evidence, which we give to the claimants in advance so they can respond to it, and thus we have all the paperwork before us. That is a long-winded answer, and I hope our process is faster than that.

The Chairman: I was beginning to wonder about the six months, actually.

Mr. Showler: That is why it takes six months.

Senator LeBreton: In your answer, Mr. Showler, you talked about the authenticity of documents. You mentioned school records, hospital records, and naturally, there are people who come to our shores who, for obvious reasons, have difficulty obtaining documents. What kind of system do you have in place to ensure that the documents are, in fact, authentic?

Mr. Showler: By the way, on the other point, just in case there is any confusion, approximately 50 per cent of refugee claims are not successful in Canada for whatever reason.

We have a few ways to ensure authenticity. We have a great deal of expertise at the board. The refugee claim officers and the members are assigned to particular teams. They hear hundreds of cases that we receive, particularly from major countries, so they are well-versed on those countries. They are familiar with the documents that work and those that do not.

Often, there are various details in the documents that establish authenticity because they have been filled out in a certain way during a certain era; you become familiar with them. Also, some documents can be referred to the RCMP forensic laboratory for verification. Additional resources would be of assistance in that area, because we would certainly like to make greater use of those facilities. We seek to verify those documents, but many cannot be.

One of the challenges that we have to confront in this world of globalization is, of course, that there are documents that may not be fraudulent in the sense that they have been manufactured, but which were obtained through bribery in the source country. The document may have been filled out by a government official and would be valid to all intents and purposes, except that it was obtained by bribery.

Claimants are questioned closely at the hearings for consistency and plausibility in their stories. Where there are questionable documents obtained through bribery, that is the only way to really get to the bottom of those kinds of issues.

There have been exceptional circumstances in which we have gone to the country of origin and the Department of Citizenship and Immigration and the Canadian missions have actually tracked back a series of fraudulent documents provided from a certain area. You can just imagine, if you are receiving a total of 30,000 to 40,000 claims per year, that that service has to be used on a very narrow strategic basis, because, of course, it does involve a great number of resources.

Senator LeBreton: Your answer then causes me to ask another question. You said that 50 per cent of claimants are not successful. Where do those 50 per cent go? What happens to them when you reject them?

Mr. Showler: I partially described that process when I said that most of them would be subject to our conditional removal orders. The condition can be the refusal by the board. Under the present system, there is a judicial review process, not an appeal process. They have a brief period of time to apply. Actually, it is 15 days plus an additional 30 days to apply to the Federal Court to seek judicial review of the board's decision. Then the Federal Court undertakes its processes to first decide whether leave will be granted. If leave is granted, then there will be a full hearing before the Federal Court.

Under the present system, and if the board's decision is overturned by the Federal Court, it must be referred back to the board for a full rehearing. The Federal Court is not in a position to substitute its own decision.

Senator LeBreton: What would occur under Bill C-11?

Mr. Showler: I described the refugee appeal division. They will have the authority to reverse that decision. They would only refer it back to the first level if they could not reach a conclusion because there was simply missing evidence that could only be provided through live testimony. The refugee appeal division will not hear live testimony because the process would simply be too cumbersome.

The Chairman: I understand that your six-month time frame is an average. You pointed out that some will take longer and some will be shorter. Given that your current length is 10.3 months, not 10.5 months, and that your target would to be to lower that to six months, what is the constraint? Is it that you only have 28 people? Is there something in the process beyond your control?

The six months strikes me as reasonable. We would agree on the definition of "reasonable." I am trying to understand what would need to change. Is it a process change or a personnel increase that would enable you to get down to your desired time frame?

Mr. Showler: Two things would help. One is the single-member process that I described, because we are currently using two members.

Second, "inventory" is a difficult word to use because we are talking about people. It is lives. Every one of those claims is important. However, the added delays are primarily in waiting for cases to come to the hearing process. We can only process so quickly.

Last year, we completed 30,000 claims. That was an 8 per cent increase in efficiency over the previous year. I have already said to Parliament that I think that we have found all the potential efficiencies. It is an issue of resources. With more resources, in both decision makers and support for them, we could take it down to the six months.

The Chairman: You have 28 decision makers now. You would be looking at about 40 people, right?

Mr. Showler: I think that you are talking about the appeal division.

The Chairman: You are right.

Mr. Showler: We have 186 decision makers.

The Chairman: Presumably, you need in the order of 250 decision makers.

Mr. Showler: That is correct. You must have a Ph.D. in mathematics.

The Chairman: You talked about lawyers all being paid by legal aid. Are the cutbacks in legal aid in virtually every province in the country slowing down the process?You and the applicant could be ready, but legal aid in all provinces is now very restricted. Is that posing a problem?

Mr. Showler: Yes, it is. You should be aware that some provinces, including Nova Scotia, do not provide legal aid for refugee claimants at all. It is not consistent across the country. We do have unrepresented claimants before the board. It is about 15 per cent of all claimants.

About 15 per cent of the claimants who do appear before the board are unrepresented. As you can imagine, that takes more time. We must be more careful that we fully understand the story before making the decision.

The Chairman: I understand that you have a 50-50 success/failure rate in general. Do you know offhand the success/failure rate for clients who are not represented or represent themselves?

Mr. Showler: No, I do not know that number. We do not track it in terms of the limited number of computer fields. I seek to find that number for you.

The Chairman: I could say, jokingly, it would be useful to know if the lawyer is of any help. If there were a 50-50 chance for people without lawyers, you might conclude that the lawyers are of no assistance.

I do ask the question more seriously in the context of whether it is true that people who represent themselves are less likely to be accepted. In which case, my next question would be that since these are refugee applicants to Canada, as opposed to necessarily a specific province, is it an issue? Is providing counsel in provinces where they are not covered by legal aid something that the federal government ought to consider?

Mr. Showler: When it comes to the government, as the head of an independent tribunal, I do not like to use the word "ought." However, I could say good lawyers are very helpful in the process. They actually get the information to us more quickly. They understand the relevant information, and they get it to us. Therefore, they are very helpful in the process.

Certainly, anything that could ensure that counsel would be available for all claimants, and particularly quickly available, would be of use. Some systems are slower than others in deciding whether legal aid counsel should be made available. There are delays.

It would be very helpful if there were agreements for a form of legal aid counsel system similar to duty counsel systems that are available in some criminal and provincial courts. That would be extremely helpful and would speed up the system.

Senator Di Nino: First, I have a comment on your suggestion. I suspect that if that were to be adopted, every province would balk.

You said that the backlog is purely related to resources?

Mr. Showler: That is correct.

Senator Di Nino: If you had the resources, the backlog would be gone?

Mr. Showler: That is correct, yes.

Ms Christiane Ouimet, Executive Director, Immigration and Refugee Board: The volume is also important. Everything is in proportion to the volume and continued efficiencies.

Senator Di Nino: It is resources again. If volume increases, you would increase resources and rid yourself of the backlog.

I have a point of clarification. In my understanding, the appeals process is only a paper process.

Mr. Showler: That is correct.

Senator Di Nino: It does not include face-to-face hearings, oral or otherwise.

Mr. Showler: That is correct.

Senator Di Nino: The discussion has revolved around the refugee system. You are the Immigration and Refugee Board.

Mr. Showler: That is correct.

Senator Di Nino: You deal with other than refugees. Am I correct?

Mr. Showler: That is correct, yes.

Senator Di Nino: Therefore, probably three quarters of your authority probably falls into the category of immigrants as opposed to refugees. Maybe you could tell me that percentage?

Mr. Showler: No. Our other two mandates are fairly narrow. I have described the Adjudication Division.

That division, which would become the immigration division under the new bill, has essentially two jobs. They hold inadmissibility hearings. There are certain persons to be removed from Canada. That is not the decision of an immigration officer; it is the decision of an adjudicator.

There is a quasi-judicial proceeding. It is an adversarial situation. A classic example of that would be permanent residents. It would be people who arrive in Canada with visas. It would be people who have already been determined to be refugees, but the Department of Immigration wishes to remove them.

They come before an adjudicator, who makes an order that they are to be removed from Canada. If they have just arrived at the border, they could be excluded from Canada. That is one of their areas of responsibility.

Their other area of responsibility is detention review. The immigration office decides whether someone should be detained for immigration purposes. They must be brought before an adjudicator within 48 hours to confirm whether they should indeed be detained. The adjudicator must hear that case again within seven days to determine if the person should continue to be detained. Subsequent hearings must occur within 30-day periods. One of the protections within the Canadian system is that no one can be detained for a lengthy period of time without an opportunity for a quasi- judicial review of that decision.

The Immigration Appeal Division is primarily for appeals. If the adjudicator decides that certain people are removable, some of those persons, such as refugees and permanent residents, can appeal that to the appeal division. There are also certain instances where Canadian citizens and permanent residents who are sponsoring immediate family - husband, wife, sons, parents, etcetera - could appeal if those applications for sponsorship were refused. The sponsor, the Canadians citizen or permanent resident, has a right of appeal to the Immigration Appeal Division.

The number of immigrants to Canada is in the range of 230,000 persons. Quite a small portion of the number actually comes before the tribunal in anyone of those three divisions.

Senator Di Nino: The majority of the cases are handled under normal proceedings. They are handled by other than the tribunal.

Mr. Showler: That is correct. All that processing goes through the Department of Immigration. We would not see that.

We have had, in total, over 50,000 decisions per year. About 230,000 persons immigrate to Canada.

There are over 11,000 detention reviews. Many of those are multiple reviews because they are coming back before us every 30 days.

We see a total of maybe 15 per cent of all of the persons who immigrate to Canada in a year. That does not reflect the visitors.

Senator Di Nino: Is it correct that UNHCR is allowed to make representation before your tribunal?

Mr. Showler: At present, they just have observer status. Under the proposed legislation, they would have intervener status at the refugee appeal division. That is quite a valuable tool.

I spoke earlier about the refugee appeal division's two functions. The first is to catch the errors that must happen at the first level. The second is to develop a uniform jurisprudence that has not been available from the Federal Court under the present judicial review system.

That means that the refugee appeal division has the authority to hear some cases as a three-member panel. It is expected that those decisions would be binding on the refugee protection division, the first-level division, and on single-member decisions of the RAD. We conceive of those as being significant cases. We know where the "areas of confusion" are, if you will. We would identify one of those cases for an appeal, and that is exactly where we would invite the UNHCR to make submissions. That means that we would hear all of the evidence on a particular case before reaching a conclusion.

Senator Di Nino: Does any other signatory to the UN convention allow that, or are we breaking new ground here?

Mr. Showler: We are breaking new ground, and it is wonderful ground and we should be proud that we are breaking it. Interestingly, the UNHCR plays a role in first-level decisions that are decided by a panel. One of those panel members is sometimes UNHCR, but sometimes it is the Danish Council of Refugees.

Senator Di Nino: You spoke about being an independent, quasi-judicial body. Who oversees your operation, the minister or Parliament?

Mr. Showler: We report directly to Parliament through the minister. It is Parliament that oversees our functions.

Senator Di Nino: Does the equivalent committee in the House of Commons summon you from time to time for a report?

Mr. Showler: There is an annual report to Parliament. I always expect a call from the standing committee at the end of the fiscal year, and I report to them and respond to or explain any questions or concerns they have.

Senator Di Nino: Subclauses 153(1) and (2) of Bill C-11 outline a clear chain of command at the IRB. That is not usually included in proposed legislation. Why was this done? Was there some problem that we are trying to fix?

Mr. Showler: No, I do not think there was a problem. I believe this was an attempt to be clear. We are unusual in that we are a three-in-one tribunal, and under the new bill we will be a four-in-one tribunal. The Immigration Appeal Division and the refugee division are both staffed by Governor in Council appointees, but adjudicators are public servants, so there are differences.

The refugee process is an inquisitorial one, whereas the other two divisions are both adversarial processes. Each division is quite unique. The relationship, even in terms of the appointments, is different. The drafters had to be quite precise.

Senator Di Nino: It might be useful, Mr. Chairman, if Mr. Showler took a moment to describe the process, also CSIS, the RCMP and others involved. We are being televised on CPAC, and those who stay up until four or five in the morning may be fortunate enough to watch this and to learn something.

Could Mr. Showler take a couple of moments to explain how the whole system works, particularly in light of the events of September 11 in New York and Washington? How we can reassure Canadians that we are doing the best that we can to ensure it does not happen to us and to help stop these things from happening in the future?

Mr. Showler: I would be pleased to expand on that.

Let us begin with people who arrive in Canada and indicate that they have a claim for refugee status. I have already described how the first stage is the statutory responsibility of Citizenship and Immigration Canada. They determine whether that person is eligible to be referred to the Immigration and Refugee Board. Part of that eligibility involves security considerations. If there were concerns about serious crimes committed or involvement with organized crime, those issues would have to be assessed first.

These reviews are fairly cursory. They ask the basic questions and the people are fingerprinted and photographed. They then make the eligibility determination and refer them through. The minister has said in the last few days that she has instructed that that become an enhanced security review.

Let me describe the system the way it works now. Those people would be referred through to the board. We then go through the refugee determination process. I have given you some sense of that process.

The board can have concerns at any time within the system. If information comes before us during preparation of a case that this person has committed crimes against humanity, serious non-political crimes, or any of the range of very serious offences for which they could be excluded from Canada, we will send the personal information form to the Department of Immigration and ask whether other not they wish to intervene in the case.

Under the present legislation, they have the authority to intervene if they have concerns. If that does not occur, and frequently it does not, there is an exchange of paper, but nothing leaps out of the file that suggests there is a problem. That is the case in the great majority of cases. The case then comes before a panel of, ordinarily, two decision makers, although it could be one. A refugee claim officer is ordinarily in attendance at that hearing to assist panel members.

In most cases, the issue at the hearing is whether that person has a well-founded fear of persecution. Issues that are always relevant to that are the person's identity and the consistency of the story.

The panel members, who are experts, as is the refugee claim officer, will look carefully at any elements of the story about which they have questions. Often, they will request that individuals confirm their identity through documentation other than that they have provided.

If we have concerns, we can adjourn and we can seek forensic evidence. Sometimes, if there is some element of a story that seems inconsistent, we will make a personal information request to our document centre, which may then contact experts throughout the world. We may get special information about that person, and there is a formal procedure for that, because as you can imagine, it is difficult to return to the country of persecution. You cannot just phone up the police and say, "What do you think about this person?" You could trigger a fear of persecution by doing that.

We have protections in place, but where we think it appropriate, we do a careful review of that story to try to identify inconsistencies in it.

That is actually the principal contribution that the board makes to a review of this person's story. We are always conscious of exclusion issues. Whenever we think they have arisen, we adjourn. Even if the minister does not participate, we would certainly pursue those matters if we had concerns about them.

At the end of the day, we make a decision. If the person's claim is refused, reasons are given. If there are reasons concerning exclusion or identity, those would be carefully laid out.

That process is in camera, but the decision is referred back to the Department of Immigration with the written reasons. The Department of Immigration would take further action at that point if it had concerns. If it were a positive decision, it would be referred to landing, and in the present system, that is where a more intensive security review takes place. My understanding is that most elements of that security review would be done at the front end, and that was certainly contemplated as well in the new legislation.

Senator Di Nino: Is there an ongoing program to upgrade the knowledge and skills of the 180 and the 28 experts?

Mr. Showler: Yes, there is. Their initial training is three weeks. After that, we have customized training for new members, and it is particularly relevant for the refugee decision makers. They first sit on multiple panels. They would never sit alone when they begin. They are assigned to mentors who are the most senior and best members on the board, and they work closely with them. There is a training team with a professional development coach that works on some of the issues. A legal adviser is assigned to assist with written reasons, and we contemplate a six-month process in which we follow them along and slowly cultivate them to the point where we decide that they are able to sit as single members in a hearing. They are very carefully tracked, and there is monthly continuing education training for all members. We also have geographic networks. The teams in Montreal, Vancouver and Toronto are constantly talking to each. If new information is obtained in Vancouver, we have a mechanism for conveying it right across the board in a very short time. We are concerned about consistency. We spend a great deal of time trying to ensure we get it right.

The Chairman: In the conclusion of your opening statement, you said:

The implementation of Bill C-11 will touch every person and system at the IRB. We will need to redraft our Rules, modify procedures and forms, review our reference and educational tools and rewrite our manuals and handbooks. All this needs to be done while we continue to hear cases...

How will you effect the transition once the bill is passed and the regulations have been proclaimed? What is your process? Do you throw a switch one day, and suddenly you are operating under a new procedure? How will you manage the transition, given all the things that need to be done?

Mr. Showler: First, we do not know the implementation date. Our expectation for planning purposes is some time in the spring, but that, of course, is not our decision. We have been working very hard on it already.

The Chairman: The spring date is already on the table.

Mr. Showler: There is so much to be done that we have already been working on it for six months. We have very carefully developed implementation plans, complete with charts. We will be ready when it is necessary. We assume that the switch may be thrown at once, but there can also be phased implementation. The minister will make that decision, and we will be prepared to respond either way because we have been doing our preparatory work.

The Chairman: You are saying that the delay between passage of the bill and its implementation will not lie with people like yourselves, who are the implementers. It will be in the process that is required to get the regulations drafted. If I understand what you are saying, if the regulations were drafted and passed, you would be ready.

Mr. Showler: Right now, no. We know there will be time. For example, it is not just regulations. There are also rules. There are four sets of rules that have to be written for our four divisions. We are drafting them now, but they have to be pre-published. There has to be an opportunity for the public to comment. The regulatory post-statute process has to take place, and I do not want to be held to an exact timetable, but it is going take months to complete all of that work. We are calculating that we can be ready when it is completed.

The Chairman: I understand what you are saying. Many of us who have been following this bill were surprised today because we were under the impression that once it was passed, we would be off and running. The fact that implementation is six, seven or eight months away stuns me, but that is just a gratuitous editorial comment.

Senator Cook: There will be a time lag, but will it be business as usual under the old guidelines and the old legislation, even though the new act will be proclaimed, and therefore the law, until you get your rules and policies in place?

Mr. Showler: That is correct. It cannot be implemented until all of that is in place, and there will be those delays. As I say, many of them are statutory. It will take a lot of work to do this right, and we want to do it right.

The Chairman: I thank the three of you very much. We appreciate your taking the time to be here.

Senators, our next witnesses are from two groups. From the Canada Employment and Immigration Union, we have Janina Lebon, the National Vice-President, and Robin Kers, also National Vice-President. David Griffin is the Executive Officer of the Canadian Police Association.

Ms Janina Lebon, National Vice-President, Canada Employment and Immigration Union: Mr. Chairman, members of the committee, thank you for granting the Canada Employment and Immigration Union the opportunity to present to you some of the concerns of our members about Bill C-11. I will be presenting the immigration point of view, and Robin Kers will be talking about the IRB, because we work for different departments.

Clause 100 of Bill C-11, which is the eligibility to refer claims, states that claims are to be processed within a 72-hour time frame. This process involves personal interviews, basically a resumption of what we used to do 10 years ago when we had face-to-face interviews, spoke to our clients and got our information. We currently use the mail-in process.

Now, it is also expected that all the necessary background and medical checks will have been initiated. There is no way for the RCMP to do a complete criminal background check, for CSIS to do a security check, or for the medical services to complete any of their checks in the 72-hour time frame. Therefore, we will not be able to confirm the identity of undocumented claimants, and we will not know the state of health of some of them. Last year, if you recall, there were concerns in Fort Erie about multiple resistant tuberculosis, so there are problems with infectious diseases.

Will we have sufficient resources to carry out the requirements of clause 100? While we have the 72-hour deadline, who will be doing what we call the "regular" immigration work, the work of doing the landings, the student and employment authorization and the reports on criminality and other inadmissible clients? Who will determine the priority? Those are major issues. Furthermore, who will deal with the thousands of files in the backlog?

The second concern is clause 44. First of all, this bill is an improvement over Bill C-31, in which every officer was called a "designated officer." Here, at least, we are referred to as "officers," but nowhere in the bill does it say "immigration officer." The officer may prepare a report.

There is an option for the officer not to do a report on criminal admissibility, or, for that matter, the minister may decide to hold what they call an "admissibility hearing" that formerly we knew as an inquiry. This allows too much latitude, whereas the current act says, "you shall." How do we know we will be reporting all our inadmissible claimants?

The biggest issue, particularly for my office, will be the pre-removal risk assessment, the PRRA for short. This is a totally new step in the process, and it will also be a fourth step in the IRB process. This means that all persons who have an effective removal order against them are eligible for a pre-removal risk assessment. No one can be removed from Canada until that risk assessment is done. This assessment is not limited to refugee claimants only. It includes everyone. The bill says, "You may file a request for this assessment." That means no one is really excluded. If I am not mistaken, there are some 27,000 files - that is the rumoured number - of removal cases right now. They will all need to be reviewed.

I will give you an example. Students have overstayed. A departure order has been issued against them. These students are entitled to a review. The problem is, it must be recent, and I have heard that it must be done within 30 days. Therefore, the assessment is done and it is negative, but the people concerned are not removed because they have disappeared and we cannot find them. Then they reappear six months later. A new PRRA must be done.

We will have problems with resources in this area, but the bigger issue is how many removals will we effectively be doing? I would say we are looking at a trickle of removals. That is a major concern because we want to remove people who are supposed to be removed as quickly as possible. This will not happen with this new process.

The last major area that I will cover is resources, although I have more issues in my brief. The department must address the issue of adequate resources so we can carry out our duties under this bill. Unlike most departments, Immigration underwent two rounds of downsizing. We were downsized first in 1993, and then a second time in 1995-1996. Our numbers were reduced by almost half. We are at approximately 4,000 currently. When I started, we were at well over 7,000. I was one of the people who got downsized in 1993, and I am now in what is known as the "Greater Toronto Enforcement Office." Retirements are further reducing the ranks of our experienced, qualified staff. The recruitment of new staff is slow. The retention of some of these people is also problematic because they feel they are not being properly compensated. A number have left, including brand-new post-secondary recruits who were with us six months and then went off to what they feel are better jobs.

The issue of training for the new staff and ongoing training for current staff is of major concern, particularly as we will be working under new legislation. What provisions has the department made for this new training?

One of the issues for the inland officers, in addition to enforcement, is that they must write nearly perfect reports because those reports can be challenged and scrutinized in the courts, and many end up there. There is an issue here of proper legal documents. The accommodation issues, such as physical layout, where we keep our refugees during the 72 hours, all must be addressed prior to implementation.

Mr. Robin Kers, National Vice-President, Canada Employment and Immigration Union: Honourable senators, I would like to begin by telling you about our membership. CEIU represents approximately 625 employees at the Immigration and Refugee Board. They include administrative personnel, who look after pay, benefits and the financial business of the IRB; and case clerks and case officers, who conduct basic file preparation, contact, counselling and scheduling of cases. They meet and assist refugee claimants in the early stages of their contact with IRB. They input data into the basic case management system. It includes secretaries, who type the reasons or decisions and maintain statistics for the board members. CEIU also includes refugee claims officers, who research and prepare claims and examine refugee claimants in the hearing room. The list goes on.

Aside from being elected national vice-president of CEIU, I am responsible for the IRB and I am also a refugee claims officer. I have been with the board since its inception in 1988.

Bill C-11 is the result of consultations that began in 1994, and was introduced with the intention of addressing certainweaknesses in the Immigration Act related to immigration, refugee protection and the security of Canada and Canadians. With the events in the United States, the concern on the minds of most Canadians today is the issue of security and not the issues of immigration or protection. Canadians want to know whether the new Immigration and Refugee Protection Act will provide an adequate or appropriate level of security for this country.

It is our view that while in many respects the bill leads us in the right direction, there remains a number weaknesses in the refugee determination system that need to be addressed - some by changes to this proposed legislation, some by administrative changes within the IRB, and some by increased funding from Treasury Board.

While the primary business of the Immigration and Refugee Board is refugee determination, the IRB does have an important role to play in ensuring the safety and security of Canada and Canadians. While it is true that it is CIC and not the IRB that removes people from Canada, the IRB conducts part of the process that leads to the removal of criminal terrorists. Let there be no mistake. Just as with past legislative changes, Bill C-11 and CIC will not be able to prevent all of the ordinary criminals - rapists, those who have committed crimes against humanity, those who have committed war crimes, and those who have committed terrorist acts - from appearing before the board in a refugee or protection determination hearing.

Our primary concern with Bill C-11 is that the IRB is already cut to the bone and stretched to the limit, with a steady and inexorable increase in intake or caseload, and we cannot handle increased responsibilities on top of our current mandate without a substantial increase in our resources. I am not bound by the requirement, as is my boss, Peter Showler, to couch this in politically acceptable language. I appreciate the opportunity to elaborate on that resource issue.

Our next concern is that the dilution of the role of the refugee hearing officer, the elimination of our authority in this proposed legislation, and the disappearance of the investigative tools will result in an insufficient testing of credibility and/or insufficient attention to the questionable aspects of refugees' claims.

Our next concern is that Bill C-11 does not address what we perceive as the Achilles heel of the Immigration Refugee Board, and that is the lack of any meaningful review or oversight of positive decisions.

Mr. David Griffin, Executive Officer, Canadian Police Association: As the national voice for 30,000 frontline police personnel in Canada, the Canadian Police Association welcomes the opportunity to appear before the committee this evening. We have contributed to deliberations on such issues as youth criminal justice, child pornography, impaired driving, sentencing, corrections and parole reform, criminal pursuits, organized crime, and technological innovation in policing such as DNA testing and the Canadian Police Information Centre renewal project.

It is in this spirit that we welcome the opportunity to make submissions concerning Bill C-11, the Immigration and Refugee Protection Act. We recognize that Canada is the best country in the world in which to live, and many people from around the world will seek to make Canada their home. We know that of the more than 4 million people who will apply annually for legal residence in Canada, approximately 20 per cent will be successful.

We also recognize that the vast majority of immigrants who make Canada their home establish themselves as productive, contributing and law-abiding members of our society. This is a testament to the fine work that is carried out on a daily basis by the officials within the department, domestically and abroad, in ensuring that every effort is made, with the tools and resources at their disposal, to thoroughly process immigration applications and refugee claims. The concern of our association is focused not on the issue of immigration itself, but rather on the method of enforcement that occurs when persons over whom the Immigration Act has jurisdiction have committed criminal acts, either domestically or abroad.

It is difficult to consider the issues surrounding Canada's points of entry without reflecting on the incredible tragedies that occurred in the United States of America on September 11, 2001.

We would like to make it clear at the outset of this presentation that the submissions that follow are not in any way representative of a reaction to these events. We do not know whether the terrorists responsible for the September 11 massacre used Canada as a point of entry to North America. There is ample evidence, however, from previous high-profile incidents and the smuggling of immigrants through our country, that Canada is seen internationally as an access point into the United States for criminals and terrorists.

Now, more than ever, Canadians are acutely concerned about the safety and security of airlines, transportation systems, ports, seaways, canals, pipelines, nuclear facilities, public institutions and economic centres. Canada's police officers understand this concern and share the view that more can and must be done to preserve our way of life. This is not a knee-jerk response to tragedy, but an impassioned plea to address the concerns that have been raised by police and others in the enforcement community for nearly a decade. It is time that the Government of Canada demonstrated clearly to Canadians that Canada is serious about defending its borders.

Police officers are growing increasingly wary of political testimonials about Canada's enforcement commitments - statements that are not backed by meaningful resources and support. The Canadian Police Association has adopted resolutions at successive annual general meetings concerning immigration and deportation enforcement, protection of our borders and organized crime. Copies of our resolutions adopted this August are included at appendix A of our brief and a copy of our previous testimony to the House of Commons Immigration Committee at appendix B.

Given our close proximity to the United States, Canada is particularly vulnerable to being used as a stepping stone for international crime. International criminals recognize Canada as a point of access to the United States in the smuggling of illegal contraband, including people, drugs, child pornography and firearms and, indeed, in carrying out terrorist activities. More important, Canada has gained an international reputation as a safe haven for criminals and fertile ground for organized crime.

The elimination of the ports police is but one example of how budget cuts have weakened the nation's security at its points of entry and highlights the need for a coordinated border protection service. Other examples include the privatization of airport security, drastic reductions in Immigration and Customs personnel and the shifting focus at Canada's borders from security and enforcement to revenue generation and cash collection.

The suggestion for an open border between Canada and the United States presents serious concerns for law enforcement, including the proliferation of crimes such as gun trafficking, drug trafficking and transport of illegal immigrants, as well as entry into Canada of violent offenders seeking safe haven or refuge from prosecution in the United States. Our association opposes the concept of an open border and calls for the strengthening of Canada's borders at all points of entry.

We advocate the creation of a national border protection service, separate from National Revenue, to provide strategic and coordinated protection and enforcement across Canada's borders and at points of entry.

Other recommendations we have submitted include determination of the immigration status of those persons convicted of an indictable offence and liable to imprisonment of 10 years or more by the original sentencing court and a criminal appeal process thereafter. Deportation in such cases should be determined upon conviction for designated offences by the sentencing judge, not by a separate, costly tribunal process. Greater emphasis should be placed on pre-screening of applicants prior to entry into Canada. Improved quality of selection of persons deserving of refugee status should be instituted, with greater emphasis on ensuring that criminality is not a concern. There should be a streamlining of the number of levels for eligibility and formats for appeals. Savings generated by these changes should be reinvested in enhancing the screening process.

We are pleased that the bill contains a variety of measures intended to deal with concerns about human smuggling, organized criminals and criminals seeking entry into Canada. We submit, however, that the provisions of proposed subsection 37(2), providing ministerial discretion to override such exclusions, are totally inappropriate. We also find it incomprehensible that a determination by the minister that someone presents a danger to the public would be required to deny entry to persons convicted of criminal offences outside Canada. Surely, when only 20 per cent of the more than 4 million people who apply for entry are successful, prior criminal conduct should be sufficient grounds for denial.

Our association opposes the use of ministerial discretion to issue special permits to persons ineligible for entry into Canada due to any form of criminal activity whatsoever. We find it incomprehensible that persons convicted of serious crimes - organized criminals or terrorists - could be permitted entry into Canada through political discretion.

When it comes to border security, immigration enforcement and security at Canada's airports and ports of entry, the federal government must move swiftly to repair gaping holes in Canada's existing security and enforcement capabilities. Recent staff reallocation decisions by the RCMP in response to terrorism concerns are a prime example. Police officers have been drawn from other enforcement duties that were previously priorities, such as fighting organized crime and providing frontline policing in their communities. Many of these jobs have been left unattended as the RCMP scurries to deal with the latest crisis within its current budget constraints.

While the Canadian Police Association has passed successive resolutions calling on the Government of Canada to provide adequate funding to the RCMP budget to maximize the effectiveness of federal and national policing responsibilities, these calls for assistance have gone unanswered. Canada's borders are in the same state of disrepair. Immigration and Customs officers lack the resources and technology to adequately inspect the large quantities of goods and numbers of people that enter and leave this country on a daily basis. Canadians should not be lulled into a false sense of security simply because they are seeing more police officers at points of entry and in Canada's airports.

Under this flavour-of-the-month approach, enforcement resources are allocated based on shifting political priorities. We are robbing Peter to pay Paul, and the shell game has to stop.

Canada requires a strategic, multi-disciplinary approach to national security that combines effective legislation and policies, sufficient human and technological resources and training, and a comprehensive, integrated enforcement strategy. Our nation's security requires more than lip service; it requires long-term vision and strategic resource allocation decisions that will ensure the continued prosperity and security of our nation for future generations.

How serious are we as a nation about protecting our borders? The real test lies not in political statements or new laws, but in whether or not sufficient political will finally exists to allocate the required priority resources, training and support to close the gaping holes in Canada's security and enforcement capabilities.

Senator Di Nino: A recurring comment made by all of our witnesses today has to do with the lack of resources to be able to do their jobs. I was taken aback by a comment from Ms Lebon about a reduction in personnel in her department from 7,000 to 4,000. Were you overstaffed before this happened?

Ms Lebon: No. In 1993, our deputy minister of the day, Peter Harder, who later went on to Treasury Board, conducted a review. He determined the numbers in the reorganization. We lost a substantial number of members. I personally had to go from my Hamilton position to a position in Mississauga. We did have reasonable job offers, but we also had massive reductions. People took retirement.

The second reduction came with the overall governmental reduction that went on for about three years, from 1995 to 1998. We did undergo two "hits," if you want to call it that.

Senator Di Nino: For the purpose of the record and my education, what is it exactly that you and your colleagues do?

Ms Lebon: We are responsible for the ports of entry at borders and in airports, small and large. We have three enforcement offices across Canada that deal specifically in specialized investigations, arrests, removals, detentions, hearings and inquiries. The three call centres are the initial points that everybody phones to make inquiries about immigration or to start sponsorship. We have three case processing centres. One does sponsorships overseas, one does all the visitor applications in Canada, and then we have the citizenship one that is not part of our union, but is considered part of the department. We have numerous inland offices that deal with the contentious cases that the Vegreville Case Processing Centre sends to us. We have one office specifically in Ontario that deals with the entire refugee application issue for those refugees processed and accepted. We have our administration, clerical support and supervisory staff. We have officers who serve on overseas assignments. We do immigration from start to finish.

Senator Di Nino: You work with the IRB, before and after, or do you work independently?

Ms Lebon: It is interlinked. For example, if the ports of entry have people claiming to be refugees, they will do the immigration paperwork and send it to the IRB. Once the IRB process is completed and removal ordered, it would then come to my office. Or if my officers are out on the road and make an arrest, the person has an opportunity to say, "I am a refugee," and it is referred to the IRB. There are close linkages in the actual work, although physically we are separate and apart.

Senator Di Nino: How many cases would you and your colleagues have handled in 1993 versus today? Do you have any estimate of that?

Ms Lebon: I would not have an estimate at all, I am sorry.

Senator Di Nino: Would you say that it is more, at least?

Ms Lebon: I would suspect it is. I know the department would have the statistics on the number of arrests, reports done, hearings and inquiries. The department does issue enforcement statistics, both quarterly and annually.

Senator Di Nino: If understand your comments correctly, your major concern is the resources available, human and otherwise, to do this job. Your first comment dealt with the 72-hour time frame. We have questioned other people about that. I am glad you mentioned it. Even if you had the resources, you still would not be able to carry out that responsibility, would you?

Ms Lebon: We are looking at a two-pronged problem - first, the resources to do the 72-hour turnaround, and second, how we accomplish what we already do regularly.

As an example, two weeks ago, the Niagara Falls-Fort Erie areas conducted a pilot project on the 72-hour turnaround. I received phone calls from people saying, "What are we doing? We have refugees sitting in our waiting room and we have our regular immigration duties to do. We tell the people to wait. They could actually leave and we would not know." There are no facilities for keeping them. Some of the people slept outside with blankets because there was no way to process them.

Fortunately, the director had just come back from an assignment. His first initiative was what he called the "direct-back policy." He sent those people back to Buffalo and told them to return, by appointment, within the 72 hours required for processing.

Admittedly, the new law is not in place, but the minister did attempt to introduce the 72-hour process. This was planned for Pearson Airport. The staff said, "Where do we keep the refugee claimants whom we have to process, maybe 20 every day? We have a sitting room."

The department is not thinking ahead. That is a major concern. There are health and safety issues. If you keep clients sitting for 24 hours, they will definitely not be in a good mood. There is a potential for violence, and even the officer will not be in the best of moods because of the pressure.

Senator Di Nino: Are you concerned that undesirables may slip through?

Ms. Lebon: It is quite possible. In Fort Erie, they were told, "Let them sit outside." What prevents somebody sitting out at the picnic table from just disappearing up the road? Nothing. We are not detaining them. We do not have the opportunity to do a full review. We are a trusting body when we say, "Go sit out there and wait and we will call you in."

Senator Di Nino: Mr. Kers, you spoke about security weaknesses, the IRB being cut to the bone, the deletion of refugee interview officers, et cetera. Your main concern is not so much the content of the bill, as the fact that you do not have the resources to carry out the kind of job that needs to be done, to keep some of the undesirables out, and service those we want to bring in as, hopefully, good Canadian citizens; am I correct?

Mr. Kers: You are correct. As I stated earlier, I am in a position of not having to state this in quite the same terms as my boss, Mr. Showler. The situation at the refugee board is serious. While I recognize it is not this committee's normal mandate or responsibility to deal with finances, I must draw some of the situations to your attention.

As Mr. Showler mentioned, our caseload since 1997-98 has increased between 90 and 100 per cent. During that time, our organization received no substantial increase in base funding. The effects of this are felt throughout the organization, and are detrimental to our ability to meet our mandate and a variety of other government initiatives.

Notwithstanding the ever-increasing caseload, which would seem to justify permanency in the workforce, 18 per cent of the membership I represent has no job security. They live in a constant cycle of term appointments, or they leave and take their experience and training with them.

The IRB would like to rectify this situation, but are prevented from doing so because of a lack of base funding. The IRB adjudicators, those employees who conduct the detention review of individuals alleged to be inadmissible - and these are employees whose decision-making authority is as crucial as that of board members - sought reclassification and were denied. Why? The reason is lack of funding.

The IRB's refugee claims officers, whose responsibilities will theoretically increase with the requirement to deal with all the protection grounds, also seek reclassification and wait in limbo. Also, the IRB cannot seem to hire or keep enough of them. Why? The reason is lack of funding.

There are 180 board members, in theory, if we go to a single-member panel. We only have 103 refugee claims officers, or RCOs. IRB human resources directorate cannot keep experienced personnel. They go to other government branches where they have the resources to do their jobs.

Senator Di Nino: You should be comforted by the fact that the Auditor General supports your position quite well.

Mr. Griffin, what is the role of the police in the administration of this proposed legislation? Again, for the report and for our education, how do you fit into this with CSIS, the RCMP, the IRB and the immigration officers, et cetera?

Mr. Griffin: Ms Lebon, at the ground level position on a daily basis, is perhaps better able than I am to deal with such a question. However, we certainly have officers overseas who assist in the investigation of claimants, check information and provide police record checks and background information.

One of our concerns has always been that immigration or customs officers working at the border may not have direct access at their workstations to a police records check. That is just ridiculous. Our organizations should not be operating in silos. That information should be readily available. When somebody enters this country, whether as a permanent resident or as a newcomer, Canadians expect that we should be able to do the checks. The technology is there.

From our perspective, when we talk about resources, it is not just the number of people, although certainly that is a major issue when talking about caseloads, but whether they also have the tools, technology, equipment, and access to information.

Sometimes, our freedom of information or privacy concerns act as a barrier to making those checks. Again, that is where the protection of the greater public interest must take precedence over individuals' personal privacy rights when they arrive at the border and the officer wants to do a simple record check.

Senator Di Nino: Having regard for confidentiality, do you have statistics that indicate that you have certain problems because of certain individuals? Ahmed Ressam is one that we all talk about. Are there other people, not necessarily terrorists, who, under normal circumstances, would not be admissible as citizens of this country?

Mr. Griffin: I cannot point to specific cases, but I can tell you about the types of complaints I have had from immigration officers in the field. One example is that, in certain circumstances, they have to go through two layers of chain of command to get a police records check. Another is that they are told that they cannot have access to certain information at their workstations because of privacy concerns and that they would not properly filter out other information in the file. We need to re-examine how all our systems work together to accomplish that which Canadians expect.

Senator LeBreton: That is a very good statement. In this age of technology, Canadians assume that computers talk to each other and that there is sharing of information across jurisdictions. CSIS and the RCMP seem to be on separate planets, according to their previous testimony.

Ms Lebon, I am interested in the human toll on your workers. How has it affected them? Do a lot of people suffer from burnout, causing high employee turnover?

In your testimony you spoke about when matters go before the courts. What kind of responsibilities do your people have when that happens?

Ms Lebon: To deal with the second question first, I will use as an example, the Baker decision. This is a case of a mother with Canadian-born children. An officer from Ontario prepared the case. It was challenged and went to court, where every piece of information was reviewed. The officer appeared as a witness. The court said that the case must be reviewed again, taking into account the role of the children.

Currently, for example, the case of Suresh, a Tamil terrorist, is at the Supreme Court. We are waiting for a response because we wish to deport him. He has claimed that he is at risk in Sri Lanka. It is now the role of the Supreme Court to determine, based on everything provided, whether he will be deported or will remain in Canada.

That differs greatly from the system in the U.S. Our Supreme Court decisions have major impacts on immigration. Immigrants are considered to have the same rights as Canadians under the Charter of Rights, which is not the case in the U.S. Immigrants have access to MPs that some Canadians have never been given.

As for burnout, in the last year, I have dealt with approximately a dozen cases of people with 20 or 25 years of service who are looking toward medical retirement or who have gone on extended sick leave. I dealt with one person who was off work for four years and has now resolved her differences with the department and left. We keep working.

On September 11 we were on strike. We took down our picket lines and most of us went home. Those who worked at Pearson Airport were asked whether they wished to go into work. The union sanctioned it and they did go. Most of them are still recovering from the trauma. Their greatest difficulty was dealing with the American travellers who did not know what was happening.

There was an interesting article in the Hamilton Spectator on that and I will provide you with a copy of it.

On the compensation issue, 25 years ago, an immigration officer in Toronto earned around $9,000 a year, while a Toronto police officer was earning $8,000. We are now paid $10,000 to $15,000 less than a police officer. For those of us in enforcement, that has a major impact. We have people who are bitter and sullen, which does not help in doing our work.

Senator LeBreton: It certainly would not help in trying to recruit people.

Ms Lebon: No. Our office recently hired 12 people right out of university. They are not very happy on the enforcement side. Perhaps they should have started in what we call "inland," where you do counselling, applications for permanent residence and settlement work, which is positive. For the most part, enforcement is negative. If you do not know how to deal with it, it can turn you off, which is not a good thing.

Senator LeBreton: Going back to matters that are before the courts, is there a lot of pressure on your people to carry the case through the courts? Do they become almost part of the case, even though they are trying to deal with it expeditiously? Do they become bogged down with legal responsibilities?

Ms Lebon: The Department of Justice does the representation for us, but they call in the officer. There is a full interview, review of the file and preparation to be a witness. In some cases, the officer can become very stressed out. Most of us do not like going to court at any time, but to go in bearing the scrutiny of a case file creates additional pressure.

Senator LeBreton: Of course, you must keep the file active in your mind while you continue with other duties.

Mr. Griffin, I asked a previous witness about the situation at our borders, and specifically the border between Canada and the United States. How would you like your people to interact with the Customs and Excise people at the border on the issues of sharing of information and arming people? If you had to write the rules, how would you do so?

Mr. Griffin: We would certainly like them to be tighter. As we indicate in our brief, we advocate a national border enforcement service that is purely focused on enforcement and separate and apart from the important role that customs officers play, whose focus, since they were moved under the umbrella of CCRA, is primarily revenue collection. We would like the security aspect to be reinforced.

Second, we would like to see a concerted effort to break down all the barriers between agencies. I am sure the police have a responsibility there as well. We are not saying that everyone else is doing it wrong.

We believe that the proposed legislation is important and, in general, support the bill. Although some of the problems I have heard raised today have made me wonder about that, we do not want to have it bounced around for another 18 months. However, this law is only as good as the priority given to it by the government and the people on the ground who will do the job.

Another issue is caseload. Immigration quotas have increased significantly over the last 10 years. We interviewed some officers who were primarily assigned to organized crime investigations in the department that works with the RCMP and CSIS. They believe that they have a very good relationship, but they do not believe that they have the ability to manage the caseloads that are being put on their desks.

First, the Government of Canada has to clearly state that it will change how we do business in the future and put the supports in place.

Senator LeBreton: It seems to be a question of allocation of resources - human, technological and financial.

Senator Fairbairn: From looking at you and listening to you, I believe that you yourselves are probably suffering from a little stress.

It has been very interesting. Everyone probably has the same goal. The question is, how we will achieve that goal together?

Mr. Griffin has indicated that, fundamentally, there is no big issue with the proposed legislation. The issue is what you are able to do with it to move ahead. There is no question that there is great anxiety in this country. Even before September 11, concerns about our borders hit the headlines and caused people to become quite nervous. No legislation is all encompassing, but its goal is to try to address some of these issues. It is clear that the 625 employees about whom Mr. Kers talked will not be able to do anywhere near the job required. I believe all three of you are saying this.

"Resource" is a wonderful word. It can mean everything and anything to people, depending on where they are situated. In your own positions, what additional numbers are you looking at to help you deal with the present and anticipated caseloads?

Mr. Kers: I mentioned that at the refugee board, there are 180 board members but only 103 refugee claims officers. In my view, we need at least another 50 to 60 refugee claims officers. It is fairly easy to identify the workloads of board members and refugee claims officers. The other problem is that the various levels of support staff need to be increased as well and it is more difficult to estimate the needs there. However, I would estimate that we would need at least another 10 to 15 per cent cumulative increase in various support levels at the board.

The problem is not just simply an increase in warm bodies. I do not know how much you want to hear about this but, for example, Mr. Showler talked about the training at the board in response to a question. The training is good, but the fact is that we had a training budget for 1998 of $594,000. It is now down to $356,000. We reduced it by a quarter of a million dollars, while our intake has increased by almost 100 per cent. We have a new case management system, new legislation and new responsibilities, but we have no money to train. Clearly there is an obvious need for training.

We also do not have sufficient hearing rooms. We do not have the physical space and resources. We do not have theinfrastructure. All of these things combine to cause problems. Basically, if we do not have the resources, we cannot hire or keep the employees we need, we cannot maintain a work environment that sustains or improves or develops its workforce, and we cannot properly recognize employee achievement.We cannot maintain a safe and secure workplace, and we cannot address an excessive workload or the attendant stress suffered by board members and frontline employees alike. We cannot maintain the high calibre of our work at the refugee board, or the reputation we have achieved, without a commensurate increase in resources to deal with both the increased caseload and our new mandate under Bill C-11.

Senator Fairbairn: If you did get substantial assistance in those various areas, do you believe the bill itself will take you a step forward?

Mr. Kers: I do not understand your question.

Senator Fairbairn: I am referring to the goals of the bill. I have not heard you disputing the goals of the bill, so much as how you get there. If you had the infrastructure, the training and an increased staff, are there parts of this bill, or a major thrust of this bill, that will be of assistance and will improve the process?

Mr. Kers: As I indicated earlier, in general terms, we believe the bill takes us in the right direction. Many of the difficulties we experience at the board that cannot be addressed by a change to legislation can be addressed internally, but not while we have the pressures of insufficient resources to deal with our mandate.

Senator Fairbairn: Much comes back to accessibility of resources.

Mr. Kers: Not only that, but we cannot meet many of our other governmental responsibilities, like government online initiatives and our obligations under employment equity. Every ministry has a whole host of obligations under a variety of government programs that are not discussed in this context. These have a tendency to fall by the wayside over time because the money is reallocated to the core business. Eventually, the price is paid in poor morale, burnout, stress, illness and the difficulty that the public service has in hiring and retaining employees.

Senator Fairbairn: What you have said here tonight has been helpful to us. It will all be on the record in both official languages. I hope it will be helpful to others as well, as the government moves forward in this and, indeed, other directions.

Mr. Griffin: We have been careful to weigh our support in terms of the principles of dealing with criminals and serious security concerns. The bill is a step in the right direction. There are areas that should be tougher in dealing with people convicted of criminal offences, such as the determination of those thresholds and access to appeals.

As we have indicated, if the person is convicted and is to be sentenced to incarceration, why put that person through another process? Alternatively, the sentencing judge could be allowed to determine, based on the same principles, whether or not that person should be subject to removal from the country. We certainly think there could be opportunities for improvement, but from our perspective, we think this bill - again, not getting into many of the practical implementation issues with which the other witnesses have to deal - is an improvement.

Again, it is only as good as the commitment and the priority that is given to putting people out there. I have heard of25 per cent across-the-board cuts in the department over the last decade. Many of those people have not been replaced. We have a higher caseload, yet fewer people to deal with it, particularly overseas, where we would expect background checks to be done when dealing with applications in refugee camps.

As for sufficient staff to deal with those problems, those are not necessarily police officers, but where we are involved in the system or in protecting our borders, obviously, since September 11, people see that it is necessary to increase our presence at points of entry and at Canada's airports. We have not seen declarations that that will be sustained, nor that the jobs those people were doing a month ago will continue to be done.

The Chairman: Mr. Griffin, you talked about the criminal justice system issuing deportation orders after a conviction on a criminal matter, rather than having the deportation issue move back into the refugee and immigration process. Do you have any sense of how many cases there are in the course of a year where that happens?

Mr. Griffin: No, I am sorry, I cannot answer.

The Chairman: I ask that because, as I have always understood it, those convicted of a criminal offence serve their sentences and are then deported. Is that not correct?

Ms Lebon is nodding yes.

I do not see why it makes any difference if you do it through a two-step process. It is not as if you are likely to lose the person.

Mr. Griffin: We have seen problems, in particular, dealing with people released back into the community. Again, we are glad to see the bill deals with that. People who are subject to potential deportation will not necessarily be eligible now for conditional release back into the community. We have seen examples where those people are released and do not appear for their immigration and refugee hearing. I would suggest that those people convicted of criminal offences and subject to a deportation process are part of the 27,000-case backlog that Ms Lebon spoke of, but I do not know the proportion.

The Chairman: Again, your view is that the bill is a good step in the right direction but does not go far enough.

Mr. Griffin: We would like to see some of those thresholds even higher.

The Chairman: Can you tell me about the ministerial discretion issue? I ask that because ministerial discretion has been in existence for as long as I have been around here, which is some 30-odd years. This is not a new provision in this bill. The notion that the minister will have the ultimate right to issue a ministerial permit has always existed. Is there something new and unique about the way that its use is proposed in this case that the Canadian Police Association is concerned about, or is your view on this issue essentially what it has always been?

Mr. Griffin: It is what it has always been. Again, in discussions with Immigration department officials who deal with parallel investigations with our members, we have seen ministers who have had much tighter control on the use of ministerial discretion. Other ministers do not seem to use the same level of scrutiny or have the same hesitancy in signing those orders. From our perspective, and looking at the principles of why people should be denied entry into Canada, be it organized crime activity, concern over national security, past criminal behaviour or criminal behaviour here in Canada, we do not believe that the minister of the day should have the ability to override that through the political process.

The Chairman: What you really mean is that some ministers have exercised their discretion more frequently - and the impression you give is substantially more frequently - than others. Is that right?

Mr. Griffin: Yes. In fact, the officials complimented one minister because she used a very high standard and very few orders were signed.

The Chairman: You are really saying some people are more inclined to use their discretion effectively.

Mr. Griffin: That is correct.

The Chairman: Have you people actually seen cases where the discretion was used and it turned out to cause a problem because that individual then committed another crime?

Mr. Griffin: I cannot cite specific cases. I apologize. We pulled some of this material together rather hastily over the weekend. Our association has been involved in litigation against the federal government and the Immigration department over an individual who murdered a Toronto police officer and was the subject of various processes.

The Chairman: I thank the three of you for taking the time to be with us.

Our last witnesses this evening are from the Canadian Chamber of Commerce: Mr. Ben Trister, Chair of the Immigration Law and Policy Task Force; and Mr. Michael Murphy, Senior Vice President, Policy.

Mr. Michael N. Murphy, Senior Vice-President, Policy, The Canadian Chamber of Commerce: Thank you for the opportunity to be here. This is an important bill and one that we at the Canadian chamber have been following with significant interest for some time now.

I did want to mention a few things. I understand from the list of witnesses that have appeared here today, and given the changed circumstances of our interest in security as it relates to immigration issues, that you have some additional matters with which to deal. I will certainly be interested in hearing more about that. At the Canadian chamber, we have been looking at this from the perspective of our members, as we do on all issues, which is how the contents of Bill C-11 would affect the business community. We certainly had some concerns in that area. We will have a chance this evening to outline a few of those concerns by way of trying to be constructive and pointing out some issues the committee may want to look at, either in the context of the proposed legislation itself, or of the regulations to follow.

Of course, our normal procedure when appearing before committees is to put a small brief together and get it to you ahead of time. We will reverse the order and appear before you today, then follow that up with a very short brief summarizing our point of view.

Ben Trister, who is with us today, is with the firm of Borden Ladner Gervais in Toronto and also the chair of the immigration task force at the Canadian chamber. I will ask him to outline our comments, concerns and issues with respect to the bill, just bearing in mind my comments about the business perspective we are trying to bring here and focusing on those kinds of issues.

Mr. Benjamin J. Trister, Chair, Immigration Law and Policy Task Force, The Canadian Chamber of Commerce: I have to add one thing. Tomorrow morning you will think it is déja vu all over again. You will be seeing me again in a different capacity, and that has just been unavoidable.

The Chairman: You must be a lawyer.

Mr. Trister: I am a busy lawyer. I also happen to be chair of the Canadian Bar Association's national immigration section. It is important to the organizations that you understand that I am merely a mouthpiece for the policies that have been vetted by the membership and pretend that tomorrow I am a different person. I only wish I had not shaved my beard last week. Such is life. This is the chamber's view, and only the chamber's view.

There are four areas that we would like to touch upon: The first is the issue of permanent resident cards and the ability to review, every five years, the person's compliance with the two-out-of-five-year residency requirement. The second is the treatment of students and their ability to study without jeopardizing their permanent residence status.

Third is the issue of leave on overseas decisions, and fourth, the issue of retroactivity as it applies to overseas applications for permanent residence.

The first area, residency, is the most complicated. Part of the reason for that is, over time, the department's own thought processes have evolved and perhaps the law did not keep pace, and Bill C-11 does not keep pace, with the intention.

If I understand correctly, when a person applies for a permanent resident card, the government wants to be able to ask questions every five years about whether that person has been physically in Canada or has otherwise met the two-years-out-of-five residency requirement. The problem with that is that if you apply for a card, Bill C-11, as it is written, indicates that the permanent resident shall be issued a status document. If you are entitled to it because you are still an immigrant, and if you are still an immigrant until you have exhausted your reviews and been found not to be one, the mere fact that you may not have met the two years out of five does not mean you are no longer an immigrant. You must be declared not to be an immigrant.

If you are an immigrant, you are still entitled to the card. How does the government get to ask the question, "Where have you been?" It is not relevant to ask that question on an application for a permanent resident card, because that is not the subject of the application. Similarly, it would not be relevant to ask the question of someone entering the country at the border.

We know from our discussions with the government over time that they thought they had the ability to ask the question. They would have been able to ask the question, had the bill not been amended in the House. They would have had the ability to ask the question as contemplated because they would have had the right to do controlled examinations and ask the immigrants whatever they wanted, whenever they wanted. That is now gone. As a result, I suspect there is no power to ask those questions at any point in the process.

To help the government meet its objectives, you could consider amending Bill C-11, which you may be hesitant to do. The strongest thing to do would be to amend Bill C-11 to say that an applicant is entitled to a permanent resident card if an application is completed while that person is still a permanent resident and if, on that application, the applicant discloses the quality of his or her residence.

If the bill says that as a condition of receiving the card, the applicant must disclose this information, fine, the question can be asked. If that provision in only in the regulations, it might be challenged, because the law says, "You shall be given a card." I do not know if addressing the concern in the regulations would be enough to protect the government's ability to do what it wants to do.

The quandry is: What scheme does Bill C-11 provide, or can the regulations provide lawfully, that would allow the government to do what it initially intended to do, but lost the right to do by accident, potentially, in the changes to Bill C-11?

The second issue is, there are certain circumstances provided for in Bill C-11 where, even though an applicant may be outside Canada, we will consider that time as if the applicant were here for purposes of meeting the two-years-out-of-five requirement. Under the current law, there are three mandatory grounds for obtaining a returning resident permit that affect your ability to return: first, if you are abroad for a Canadian business; second, if you are abroad studying or improving qualifications; and third, if you are abroad in the company of a Canadian citizen or permanent resident who already has a returning resident permit.

Under the current law, an applicant can study abroad without prejudicing permanent resident status. Under Bill C-11, the department chose not to allow students to do that, thinking that they could plan their studies so that they would not run afoul of the two-out-of-five rule. The trouble is, at the time they were thinking about that, the two-out-of-five rule was there would be a five-year period after landing, and then that would be done with and there would be another five-year period after that. An applicant would be required to meet the two-out-of-five in blocks of five years. The test that must be met now is two out of five; however, it changes every day. It is a fluid five-year period. That means that you cannot do a four-year degree at MIT because you will lose your status as a permanent resident.

The government says that they will allow you to keep your status on humanitarian grounds, but I do not know why they say that if they are unwilling to put that rule in the regulations or in the bill as it stands.

It is in Canada's interest to allow young Canadian permanent residents to go abroad to study and to bring their skills back to Canada. We would encourage you to either amend Bill C-11, or ensure that the regulations provide that students will be allowed to freely travel abroad and have their status protected while they do so.

It is important to know the policy underpinning and I would be interested in hearing it. I understand that if you select an immigrant for that person's skills, you are doing so because you want them to make an economic contribution to Canada, and you are not able to select somebody else because you have used that visa for that person. If you come as a dependant of an immigrant - some have dependants and some do not - why would we care if you went away and studied? I cannot see why that would be a bad thing.

I shall now turn to the issue of retroactivity. Ever since I have been in practice, if the government changed the rules under which you qualified for permanent resident status and your application was pending at the time, it would be considered based on both the new and old rules, and whichever one was better for you would apply.

The ADM for policy indicated at the clause-by-clause review that the intention was to only allow the new rules to apply. It is possible for an application for immigration to be filed in which the applicant spends a significant amount of money on the fees. It then takes three years to be processed because the person could not qualify for a faster post. In the interim, through no fault of the applicant, and because it takes so long to change the rules, the rules do change, the applicant loses money and rights, and whatever plans had been made are gone.

It is interesting to note that Quebec does not do that. Quebec maintains the tradition that we have had historically, which is that we give you the benefit of both systems. If you pay attention to the transcript of the clause-by-clause review, you will see there was some sympathy among the members in the House for the notion that retroactivity is unfair. However, the ADM said it would be a nightmare to apply two systems at once - without mentioning that we have always done that. You may wish to revisit that. I understand that the minister's office is still considering the issue. In fairness to them, it may be that the minister will agree.

As for leave for permanent residence applications, at present, there is access to judicial review. Under the new system, you will need to seek leave. We are concerned that the leave provision is being imposed before alternative methods of dispute resolution are developed. We know that the government has quality control problems. The Auditor General has recognized that different officers will make different decisions based on the same set of facts. We think that the right to judicial review is important in maintaining quality control in decision making.

We are not opposed to leave eventually, but we are opposed to leave without any other systems in place. We would urge you to delay the implementation of that provision until ADR is in place.

The Chairman: In some 30-odd years around government, I have never known policies to be applied retroactively. I understand your point of view. Traditionally, we grandfather everything if you are in the queue. If they change the labels on cigarette packages, all the packages that are out there in the marketplace can still be sold. All of Canadian history and public policy precedent is on your side on the retroactivity point. We will see what the minister has to say.

With regard to students, it seems to me that you are only talking about people who came here as dependants of immigrants.

Mr. Trister: Yes.

The Chairman: The logic of your position seems unassailable. I am not quite sure I understood the details of your first point about permanent resident cards, shifting five-year time frames and various other things. That problem may not be solvable because of the word "shall" in the bill. I gather that the student problem is solvable by regulation.

Mr. Trister: I believe so. I would have to check whether there is regulatory power under that clause, but I believe there is.

The Chairman: Since you are going to return here in the morning, you can tell us then.

The permanent residency issue is really in the timing, of not moving to the leave process until the new process is ready?

Mr. Trister: That is right. The minister herself has acknowledged there is a need to develop alternative dispute resolution methods that are inexpensive and effective. We believe those need to be in place before we impose a leave requirement.

The Chairman: Can that be done by proclaiming different sections of the act at different times? I suppose it is a legal question. The leave element applies only to a certain part of the act. Could the act be put into force by section?

Mr. Trister: It has been done in the past. The department is on record as saying that because this is all so interrelated, it has to be one package. I know that the wording in the clause is general, so I would have to say that it probably cannot be done.

However, we know that the government hopes that the bill will be in force by July 1. It would not be unreasonable to expect the development of some preliminary methods of ADR before that takes place. Perhaps the bill does not need to be changed if we could have a commitment from the minister that by the time the bill is in force, some interim measures for ADR, if not the full system, could be available.

The Chairman: Somehow, we have lost a couple of months. Officials indicated earlier that the bill might be ready by spring. I originally assumed it would be ready by March 1 at the latest. They told me it would be spring, and we are now to July 1.

Senator Di Nino: Mr. Trister, I agree that you have made some very good points and I will study your commentary.

There are three areas that I thought the Canadian Chamber of Commerce might address. One is the target of 300,000. Over the past two generations, if not more, the immigrant population has been extremely useful to the development of Canada's economic and social life. We have striven toward this magical 1 per cent target for quite a while.

Do you think it is an appropriate target? Will it give us the numbers we need?

Mr. Murphy: I do not recall that we have ever had a discussion about the right number during my time at the chamber. We have had a great many discussions with various sectors of the economy through our membership, which is very broad. We have had some very good discussions from which we have learned that there is clearly a requirement for business immigration. I do not know what the right number is, but we clearly have a need for immigration for business purposes. Some pockets need it more than others, but it cuts across the entire economy. The need is clear, but I cannot provide a specific number because we have never focused on that.

Senator Di Nino: There was an article in The Globe and Mail a few weeks ago which said that the shortage of workers could result in the retirement age going up to 67. Don Drummond, the chief economist of the Toronto Dominion Bank, wrote this article about the shortage of skilled labour that Canada has experienced over the last years, and the effect that that has had, particularly in the trades. The trade movement has been making noises about this for the last two or three years.

In your opinion, does Bill C-11 address the needs that the business community and the trades have been talking about?

Mr. Trister: The rules for selecting immigrants will be in the regulations, which we have not yet seen. We have engaged in consultations and written letters to the minister indicating some of our preliminary concerns. We have suggested that perhaps the age at which the maximum number of points is attained should be increased to reflect the fact that people are in the labour market longer. We do have some concerns, but we have not been given anything final upon which to comment.

Senator Di Nino: You do not see it in the bill itself. It is framework legislation and it depends on what comes next.

Mr. Trister: Even with the current law, the rules are in the regulations.

Senator Di Nino: Would you care to give us an opinion on what we call the "business class immigrant" that we have had for a number of years? Does the chamber feel that this has been of benefit to Canada?

Mr. Trister: I know the government has some concerns about different aspects of the program, and it is right to have those concerns. I believe those concerns are being addressed effectively in the proposed regulations. Again, I have not seen the final version, but every draft I have seen has been progressively better. We hope that we will be comfortable with what they suggest, but again, it is too early to say without the new regulations.

Historically, there been a tremendous imbalance in where investor funds have gone. That happened for market reasons that were foreseeable but not dealt with. Under the entrepreneur program, it has been difficult to get rid of people who do not do what they say they are going to do. There certainly have been weaknesses, but we are hopeful that they will be addressed.

Senator Di Nino: Has the chamber of commerce made a submission to the department?

Mr. Trister: No, but we will as soon as we see the draft regulations.

Senator Di Nino: Have you not expressed any opinions in the past in a formal manner?

Mr. Trister: Other than the ones I just expressed, no.

Senator Di Nino: If you do make a submission, would you send a copy to our chairman to be directed to the committee?

Mr. Trister: Absolutely.

Senator Fairbairn: Mr. Trister, I will speak to you as you are this evening. I have no idea who you will be tomorrow.

Am I correct in concluding from your comments that, pending the ability of government to address these issues in the regulations, you see value in this piece of proposed legislation?

Mr. Trister: I would answer by saying that three out of the four issues that we mentioned could effectively be dealt with in the regulations, assuming the regulatory power exists.

The number one issue is that I am not sure the government's interests will be protected by the manner in which the law is currently read and by trying to place the solution in the regulations. That is for the committee to decide. As for the chamber of commerce, if those issues can be adequately addressed, we have no concerns about other aspects of the bill because of our focus as an organization.

The Chairman: I thank both of you for coming tonight, particularly at short notice.

We are adjourned until tomorrow morning.

The committee adjourned.