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

Issue 27 - Evidence (morning session)

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 9:30 a.m. to give consideration to the bill.

Senator Michael Kirby (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, we have witnesses this morning from the Canadian Bar Association and from the section of the Quebec bar that deals with immigration issues.

Please proceed.

Mr. Benjamin J. Trister, Chair, National Citizenship and Immigration Law Section, Canadian Bar Association: We are pleased to have the opportunity to appear here today on behalf of the National Citizenship and Immigration Law Section of the Canadian Bar Association. The CBA is a national voluntary organization with some 37,000 members. The section includes over 600 lawyers whose practices embrace all aspects of immigration law. Our primary objectives include improving the law and the administration of justice, and it is in this context that we make our comments today.

We would like to begin by extending our congratulations to the Minister of Citizenship and Immigration and to her department. Bill C-11 represents a total rewrite of Canada's immigration legislation with many positive aspects. The minister's commitment to getting the bill passed is laudable.

There are, however, serious problems with the bill. Although they originate from well-intended policy objectives, the end results in Bill C-11 are often misguided and ill-suited to the policy objectives to which they relate.

We wish to comment on any sense of urgency to pass this legislation in light of the events of September 11. We are aware of comments from public figures suggesting that quick passage of Bill C-11 is needed to provide the government with the tools to fight terrorism. The current act provides powers for the arrest, detention and removal of persons who constitute security risks to Canada, with paramount weight given to the safety of Canada over the liberty of the individual. There is no gap to be filled by Bill C-11 in the area of preventive and pre-emptive detentions of security risks. This issue should not be used as an excuse to overlook the substantial shortcomings of Bill C-11 and its impact on permanent residents and fair process. Indeed, in times when national security issues of such import are in play, it is particularly necessary to ensure that process and fairness are protected.

The Canadian Bar Association has expended considerable effort in its review of Bill C-11, reflecting the depth of our concern with the proposed legislation.It is safe to say that the development of our position on the bill has been the largest project undertaken by the CBA's Citizenship and Immigration Law Section in the 10 years during which I have been a member. Recently, my colleagues Mr. Michael Greene and Mr. Gordon Maynard received the CBA's St. Laurent Award of Excellence in recognition of their work on the bill. These gentlemen are a credit to the legal profession and the manner in which the Canadian Bar Association serves the public interest.

The CBA's concerns with Bill C-11 are legal in nature, in keeping with our mandate, our membership and our expertise. While we respect that the government has to make important policy choices, this power is not without limitations. Policies, as they are reflected in our legislation, must operate within the confines of the pillars of our free society. These pillars include our Constitution, our Charter of Rights, our legal tradition and the fundamental principles of fairness, democracy and the rule of law. In many respects, Bill C-11 fails in this respect.

Some of the problems with Bill C-11 may be rectified by amending the bill, while others may be addressed through regulations. The CBA asks the Senate not to pass Bill C-11 until the problems are addressed.

You have received our letter with the brief attachment outlining our six outstanding concerns. I understand that the Senate research staff also has a copy of the more detailed submission prepared for the House of Commons committee.

I will ask Mr. Greene, past chair of our section, and Mr. Maynard, our current treasurer, to deal with our particular concerns.

Mr. Michael A. Greene, Past Chair, National Citizenship and Immigration Law Section, Canadian Bar Association: The Canadian Bar Association is strongly opposed to substantial provisions of Bill C-11. If you followed the discussion at the House committee, you will know that we led the challenge to the bill. Our greatest concerns are denial of access to justice, the removal of fair decision making and accountability when dealing with loss of status, removal of permanent residents of Canada, the degree to which the bill will affect the civil rights of immigrants and others in Canada, and what we see as the usurpation of the authority of Parliament by the downloading of legislative powers to the regulations.

Observers and stakeholders have been virtually unanimous in their criticisms of the procedural shortcomings of the bill. Nearly every one of the more than 50 NGO presenters to the House of Commons committee condemned Bill C-11's limit on the court and tribunal review of decisions by immigration officers.

While some of the shortcomings of Bill C-11 have been addressed by the House of Commons, some of the worst faults remain. The bill represents a fundamental and unacceptable shift, in our view, in the way Canada treats immigrants and potential immigrants. We wish to make it absolutely clear that we cannot support this legislation in its current form, and we hope that you will agree.

As the time is limited, we will only touch on some of our key concerns. You may wish us to elaborate in follow-up.

Our major concerns are the elimination of any meaningful review of an officer's decision to remove status and deport permanent residents on certain grounds, the removal of the ability to go to the Immigration Appeal Division if you are sponsoring certain types of relatives, the interference with the right of permanent residents to enter Canada before any determination of loss of their status and the imposition of a leave requirement at the Federal Court in order to review a decision of an immigration officer. It is our view that this will create a layer of insulation that will prevent effective judicial review of officers' decisions. Further, we are concerned about the granting of extensive regulation-making authority, thereby bypassing Parliament and, finally, about the way in which the new law is drafted to allow it to be applied retroactively to cases already in progress.

I will elaborate on only one of those issues and leave the others for follow-up from senators.

The issue that is probably of foremost concern, which is not to negate other issues, is the complete removal of appeal division jurisdiction to review the loss of status and deportation of permanent residents described by certain grounds of inadmissibility set out in section 64. It was based on a 1969 white paper that was actually established into legislation in the 1976 Immigration Act. Before a permanent resident can be deported, he or she has a right to have that deportation decision reviewed at the immigration appeal division. The appeal division considers all the circumstances of the case and decides whether or not the person should be removed.

The bill would purport to take away the right to go to the appeal division for permanent residents ordered deported on the grounds of what is defined as serious criminality - which is an arbitrary definition - membership in terrorist groups and membership in organized crime, neither of which is defined in terms in the act. Those people would lose the right of review.

We believe that removing that appeal division jurisdiction is unnecessary and unwarranted. We believe that removal delays, which is the concern, can be reduced by giving adequate resources to the board and to the enforcement branch of the Immigration Department, and by giving priority to cases involving these more serious grounds. We are particularly concerned by the failure to provide any protection for long-term permanent residents. Under this bill, permanent residents who come as infants can be deported without any independent review of whether their criminal act was an isolated event or a pattern of criminal behaviour, without regard to the particular circumstances of the offence, and without regard to their family and social support in Canada promoting rehabilitation. The process gives immigration officers absolute power, while insulating their decisions from any meaningful outside review.

We believe the minister means well. She is frustrated with the length of time it takes to remove bad people from Canada. She believes her officials can be counted upon to act fairly and not to remove anyone without first considering all of the circumstances of the offence and the person. In any event, she believes she will have the final say in any removal. She appears comforted by that; we are not.

We believe the proposed process is not only unfair and unjust, it is just plain dumb. What officer will commit the career-limiting move of allowing someone to stay in Canada who may then reoffend and embarrass them? Moreover, what minister would take the political risk of making the same mistake?

This is why the immigration appeal division process was created in the first place in the 1970s. Independent courts and tribunals depoliticize the process. They allow for objective consideration of all of the circumstances free from the naturally inherent biases of administration and politics.

"Trust us" is no substitute for justice. We do not know what the department said in its appearance before the House of Commons committee, as we just flew in yesterday and have not yet seen the blues yet, but certainly all throughout the process they have given assurances to the committees, to the public and to the bar association that, and I quote from their House of Commons appearance:

... there are lots of checks and balances in the system to en sure long term permanent residents' individual circum stances are looked at.

They continue:

We're accountable. There's judicial oversight of this pro cess.

In fact, this bill does not provide for any checks and balances whatsoever. It is clear from our discussions with the department since the House of Commons appearance that they have absolutely no intention of putting any checks and balances in the regulations, which, as you may know, are not even drafted yet, or even in their policy manuals. They do not want to put those checks and balances in because they are afraid there will be judicial review. We are saying that at least a person who has been here since he or she was an infant should have an opportunity to have notice that the proceeding will happen so that he or she can submit evidence to show rehabilitation and strong ties in Canada, that it was an isolated offence, with some kind of explanation.

The department does not want to put it in. They are just quoting their senior legal person. They do not want to put in writing that right to have notice that these proceedings are going on, because one might then have a right to a fair process and a right to challenge that process in Federal Court. There is something fundamentally wrong with that position.

The way this bill is structured, a stranger coming to this land to claim refugee status will have multiple layers of access to our judicial process. We do support that. We think that the design for the refugee process in the bill is a good one. It is an improvement. There are some things lacking, but we generally feel it is an improvement. They will have multiple layers of access.

A permanent resident who has been here since childhood has zero access. The department may tell you that an individual can challenge the decision of an adjudicator by going to Federal Court. Nevertheless, the adjudicator's decision is automatic. If a person has been convicted and got a two-year sentence on a ten-year offence, it is automatic; the deportation order issues. If ones goes to Federal Court, one can only challenge whether it has been applied correctly. There is no requirement anywhere for the court to consider the circumstances. On this ground alone, we feel this bill should not be passed.

Speaking for myself, I speak with a sense of some futility. The bar association, and myself, have been involved. We have lived and breathed this bill for the last three or four years. It is the first major overhaul of the legislation in 25 years. Because of the way the bill is drafted, it will probably be the last time you will ever see immigration legislation. It is set up and designed so that changes can be made through regulation - which does not go to the Senate. The Senate is supposed to be the house of sober second thought. However, from what we are hearing, you have decided to cram your review of this bill, which is a fundamental overhaul of the way we treat immigrants and select immigrants to come to Canada, into three days. We do not know how you can possibly get familiar with the bill and the changes and be aware of what is going on here in that time period.

We can speak to the security issues if you like. We believe, as Mr. Trister has said, that the concerns that have been raised do not justify quick passage of the bill. We are told that implementation will not happen until July - spring, if it is moved up, but the regulations have not yet been drafted. We believe all the powers are there for security - and we can deal with that aspect if you want to ask us questions - but we believe any security concerns can be dealt with in the current legislation.

We would like to see more checks and balances. Some of them must be done through changes to the bill. Some perhaps can be done through regulation and policy, but until those assurances are there, we do not believe this bill should be passed.

Ms Pia Zambelli, Association québécoise des avocats et avocates en droit de l'immigration: The Quebec Association of Immigration Lawyers represents the immigration and refugee lawyers practising in the Province of Quebec. We have made submissions previously before the House of Commons standing committee. AQAADI wishes to present the following comments on Bill C-11, primarily focusing on the issues of refugee protection and remedies in the Federal Court.

I will begin by saying that AQAADI's position on national security is essentially the same as that of the Canadian Bar Association. The legislation that we have now and the new bill will be legislation that will be as effective in preventing terrorist activity as is reasonably possible in a free and democratic society. The only question is whether the resources are devoted to implementing the tools available.

In terms of the question of remedies in the Federal Court, under the new bill, we would like to bring to your attention a major ambiguity in the legislation. Bill C-11 provides in clause 72(1) that any decision, determination or order made, or any measure taken or question raised under the Immigration Act could be judicially reviewed with leave of the Federal Court.

This is a very broad power of judicial review. The bill also provides in clause 72 that the 15-day time limit to file for leave does not commence until any right of appeal provided for in the proposed act has been exhausted. This language strongly contemplates that it is the initial negative decision of the refugee protection division that will likely be the subject of leave application.

Many documents pertaining to the bill, notably, the proposed summary by the CIC, appear to assume that the decision of the RAD itself will be the subject of the leave application. In actual fact, nothing appears to prevent a second, separate application being filed against the refusal of the appeal, as there can be distinct grounds for review of the initial refusal and dismissal of the internal appeal. If two leave applications are routinely filed for every negative refugee determination, this further lengthens and complicates the refugee determination process as a whole.

The bill, at this point, is unclear as to whether one can attack only the first decision refusing refugee status, or whether it is the appeal decision that should be attacked. According to the way it is worded now, both decisions can be attacked, and knowing the bar, they both will be. It would be useful to clarify the intention of Parliament on this matter; otherwise, we are going to get double the number of Federal Court leave applications that we had under the old system. Having expertise in the Federal Court, I happen to notice this. I do not know if anyone else has raised this, either in the Commons or here, but in terms of Federal Court remedies, that matter must be clarified.

Finally, AQAADI is disappointed that access to the Federal Court of Appeal in immigration cases continues to be severely circumscribed by use of the question process in clause 74(d). In other words, one can have a judicial review in the trial division, but one can have access to the Federal Court of appeal only by raising a serious question of general importance. Such provisions make the Federal Court an ineffective remedy in many immigration cases. We are disappointed that that provision restricting access to the Federal Court of Appeal is still in our legislation.

As far as refugee protection is concerned, many of Bill C-11's provisions are welcome additions to Canada's legal system. AQAADI is in agreement with the creation of the Immigration and Refugee Board's additional jurisdiction to extend asylum not only to conventional refugees but also to other persons in need of protection. As well, AQAADI approves of the concept of the merit-based appeal of negative refugee determinations and appreciates the bill's concern for administrative, pre-removal risk assessments. Clearly, what is needed from a humanitarian point of view is an asylum system that makes correct decisions most of the time and provides effective error correction for errors that do occur. The main error-correction mechanism identified by the bill appears to be the appeal before the Refugee Appeal Division, the RAD. The Federal Court applications and the pre-removal risk assessment function as additional safety nets.

Nevertheless, the RAD can function effectively only if it is staffed by persons with excellent legal minds and expertise in refugee matters and country conditions and who have the ability to act judicially. Unfortunately, these conditions are not legislated in Bill C-11. The standing committee did attempt to legislate some qualifications for board members, but that amendment was not passed. AQAADI thinks that is rather unfortunate.

If we continue our current system, we will have RAD members that are political appointees rather than well-qualified, carefully chosen individuals. This affects the effectiveness of the RAD as an error-correction mechanism. Furthermore, as the bill is now structured, the RAD is not an entity sufficiently separate from the Refugee Protection Division, and the bill provides that the members of each division are interchangeable. This intermingling is not conducive to independent decision making. The concept of collegiality makes it difficult for one member to sit in appeal of a colleague he might be dealing with the next day.

Furthermore, new evidence may not be introduced before the RAD under the bill, and, therefore, there may be insufficient means of rectifying the ill effects of poor counsel or poor translation at the initial Refugee Protection Division hearing. That appears rather odd, given that new evidence is allowed at the pre-removal risk assessment stage much later in the process. Why not give the same right or even a slightly circumscribed one at the RAD stage and rectify the error earlier rather than after significant resources have been expended? Given the concerns, there is considerable doubt as to the RAD's effectiveness in correcting errors in the determination of refugee or protected person's status.

Finally, the government must be aware that Bill C-11 provides for the most drawn out and complex refugee protection process Canada has ever had: initial hearing, RAD appeal, one or maybe two Federal Court applications - we do not know yet - pre-removal risk assessment. We are happy to see all the procedural guarantees for refugees, but, at the same time, the government must realize that the system has more layers than ever. It is in no one's interest to have a drawn out and complex system. Genuine refugee claimants should be identified, quickly resettled and reunited with their families. Non-bona fide refugee claimants should not be allowed to remain in Canada for a lengthy time.

A lengthy and complex system risks collapsing under its own weight. Some people have suggested that such a system invites abusive and opportunistic claims. However, sanctions for abuse of the asylum system have been lessened in the new bill. Persons whose claims are manifestly unfounded would now be allowed to remain in Canada longer during the internal appeal of the initial Refugee Protection Division decision instead of being subject to removal, as they are currently, within seven days. They would be eligible for pre-removal risk assessment whereas now such persons are not.

It would have been simpler and less expensive if the government followed the advice of stakeholders, namely, to put resources into improving the quality and competence of the initial decision makers rather than into multiple layers of error-correction mechanisms and safety nets after the fact. As with issues of national security, the focus on refugee protection must be on front end prevention of costly errors rather than on back end clean-up operations.

Senator Beaudoin: You say it will take a long time to make the regulations, but the regulations cannot go against the statute. We have a special committee here for the regulations, and the purpose of the committee is to be quite sure that the regulations that are made under an important statute like this one comply with the act. Why are you so afraid that there may be a regulation that will not respect the bill? Is there a reason?

Mr. Gordon Maynard, Treasurer, National Citizenship and Immigration Law Section, Canadian Bar Association: Bill C-11 is fundamentally different from the existing act. The existing legislation gives regulatory authority to the Governor in Council on specific issues, and it lays them out in specific detail. When you say that the regulations must comply with the act, you are, of course, right. You must make the regulations you are empowered to make under the act.

Bill C-11 is framework legislation. Many of the details existing in the current legislation do not exist in Bill C-11. They are left to be fleshed out by the regulations. One of our primary concerns was with the number of areas left out of Bill C-11 when compared to the current legislation. We do not know how the regulations will address those fairly important issues.

I have a short list of examples: Authority to make regulations can include whether a deportation order or a lesser order will be the result of a particular breach of the Immigration Act. That is a matter that is contained in the current act. Which breach gives you which order? That information is not in Bill C-11. We know that an order will issue, but the regulations will tell us later what order it will be. It may be an appropriate order; it may not be.

The extent to which an immigration officer can issue an order administratively and which orders can be issued without going to hearing and against whom and for what breaches - that information is contained in the current act. It is not contained in Bill C-11. Rather, it will be developed by regulation. The categories of persons who are exempted from certain grounds of admissibility will be covered by regulations. We know it will be done, but we do not know what that regulation will say. The circumstances in which an effective removal order may be overcome will be defined by regulation, not by the current act. Categories of foreign nationals who will be exempted from eligibility for discretionary entry and the degree to which applications and proceedings commenced under the current act will be governed by the new act when it comes into place - these are all matters that should be covered by Bill C-11 specifically, as they are in the current act, but they are left to regulation.

Senator Beaudoin: You are concerned with the vagueness of the enacting clause. It is too broad?

Mr. Maynard: It is too broad.

Senator Beaudoin: It may be amended, of course, but we cannot delegate any power greater than regulation-making power because the Governor in Council is not Parliament.

Mr. Maynard: That is correct.

Senator Beaudoin: I agree with the principle that when we delegate a very important power to the Governor in Council, the direction must be very precise in the act. It cannot be vague. That is your argument?

Mr. Maynard: That is our concern. In some cases, these regulations will encompass very specific rights that are presently found under the current act. Once the powers are delegated to regulation, they are out of the control of Parliament and are left to the Governor in Council. Interestingly, the House of Commons was concerned with how to control that regulation authority and so Bill C-11 was amended in clause 5, I believe, to require that future regulations must come back to the House and be presented to relevant committees.

As far as I can see, that amendment has no teeth because the committee has no authority to hold back the regulations. The Governor in Council can still enact the regulations, table them and ignore comments of the committee.

Senator Beaudoin: This is not the only statute that delegates a lot of power to the Governor in Council. We have had that problem in many statutes for the last few years. There is nothing new in that. Having regard to the objective of this act, though, the wording is too vague, to say the least.

Mr. Maynard: The explanation we are given by the department is that framework legislation is a style that has come into vogue, if you will, over the past few years. This is not the only proposed legislation to be done in this manner, but it is a matter of great concern to us. We think the authority for making regulations is too broad under this legislation.

Senator Beaudoin: Clause 71 states:

The Immigration Appeal Division, on application by a foreign national who has not left Canada under a removal order, may reopen an appeal if it is satisfied that it failed to observe a principle of natural justice.

That clause does not look bad in a sense because it provides the possibility of appeal. I agree with you that the right to appeal, in my own conception of a democracy as great as Canada, is fundamental. However, clause 71 recognizes the possibility of going to appeal if the court is satisfied that it failed to observe a principle of natural justice. At least there is something in this clause, but I understand this clause is not good enough for the Canadian bar?

Mr. Greene: I was not talking about that clause in the denial of a right of appeal. That clause is a major curtailment of another existing right, and that is the right to reopen a hearing. Clause 71 deals with people who have already had an appeal hearing at CIAD and have lost. For some reason or other, they have not been removed from Canada. Sometimes it is because they went to Federal Court; at other times, it may be that the department did not get around to removing them or that it may have been difficult to remove them to their country of origin.

Under the current law, an individual can apply to reopen that hearing on the grounds of a change of circumstances. It does not have to be reopened on a denial of natural justice. In my own office, I have seen such cases. In one current case, the fellow's ID hearing was completed five years ago. He has not yet been removed. Only about one year of that delay was caused by him. He can now go back and apply to reopen his appeal based on new evidence of his rehabilitation. He has not reoffended. He now has family here and is well established. He has worked every day since the appeal hearing.

This clause takes away that right to reopen except on the grounds of a denial of natural justice at the original hearing.

Senator Beaudoin: It is restricting rights.

Mr. Greene: This clause is restricting and not expanding appeal rights. It does not help the person who has no right of appeal in the first place.

Senator Beaudoin: If I am not mistaken, the person must clearly prove that a principle of natural justice was set aside. This restricts the right to reopen the appeal.

Mr. Greene: It is enormously restrictive.

Mr. Maynard: The Supreme Court of Canada decided a case several years ago that allowed an appeal to be reopened where there has been a breach of natural justice. If, for example, a notice were sent out to the wrong address and the applicant never received notice of their own appeal, that would be a breach of natural justice.

The Supreme Court also said that if the person is still in Canada and there is new evidence relevant to the case, evidence that could not have reasonably been put forward at the first hearing, that, too, is a legitimate ground for seeking reopening. The board has the jurisdiction to reopen in appropriate cases of new evidence. This provision takes that away and makes sure that it is no longer reflected in the statute or the law. It is a restriction.

Senator Beaudoin: Yes, I understand. We will think about that.

Senator LeBreton: Mr. Trister, I was struck by a comment in your opening remarks that there is no gap to be filled by Bill C-11. I pursued this area yesterday. I asked Ward Alcock of CSIS; he also could not give me a definitive answer on how Bill C-11 could address the other issue that comes to us as result of September 11. The coincidence of this bill being numbered 11 and the date of September 11 has not escaped me.

I will take you up on your suggestion to answer the questions on the security side. Perhaps you can explain to the committee why you feel this bill will not in any way address the issues that have been brought to the table by the events in Washington, New York and Pennsylvania on September 11?

Mr. Trister: I will defer to Mr. Maynard for a specific answer.

Mr. Maynard: The current legislation already has substantial provisions that allow security measures to be taken when it is believed or suspected that there are people in Canada or trying to get into Canada who may be security risks. Bill C-11 does not change that; it repeats the same powers, and they are extensive powers.

Under the current act, or under Bill C-11, if someone shows up at a port of entry and officers are not satisfied as to identity or they suspect a security risk, that person can be detained immediately, kept in detention, put through a determination or examination process, and then removed or extradited from Canada, if there is an extradition process in the works. That is a substantial power.

People in Canada can similarly be arrested, detained, put through proceedings and removed. Security concerns, whether under the current act or under Bill C-11, trump everything, if you will. Even if someone stands up and says, "Wait a minute. I think I am a refugee and I need protection," if it has been determined that the person is a security risk, that overules everything. "Sorry, you're removable."

In terms of front-end protection and immigration officers' ability to control the ports of entry or to deal with people inside Canada who are security risks and non-citizens, considerable powers already exist that are, for the most part, repeated in Bill C-11.

You read things in the paper and you hear things said about front-end security screening of refugee claimants. Bill C-11 is not needed for that. Front-end security screening is just a matter of commitment and money. If you want to do it, you do it. The response of our government in the last week has been to expand the degree of security screening of refugee claimants at the front end, which is only one part of the problem of trying to address international terrorism. Bill C-11 will not change any of that. It does not add anything that does not already exist.

Senator LeBreton: Therefore, Bill C-11 would not address the other issue of losing sight of people who are already in this country. I think the figure was 57,000 people drifting around the country and no one seems to know where they are. Are you saying that nothing in Bill C-11 would change that?

Mr. Maynard: Neither Bill C-11 nor the current act is a magic magnifying glass that you can hold over the country and determine the location of everyone you have dealt with when they are no longer in detention. Canada does not have exit controls. Few countries do. If everyone who came to Canada were put in detention, or everyone being removed from Canada were put in detention, then you would have control over the numbers. That is a very tall order. The degree to which we want to commit all persons we wish to see leave Canada to detention is a matter of policy and money. The act itself cannot help you there.

Senator LeBreton: Mr. Trister's submission specifically targeted clause 64. You speak of universal condemnation of this specific clause of the bill. You went on to say that there were very solid recommendations to amend this clause that were defeated. Could you expand on that? What reasons were given over on the House of Commons side for those recommendations being overlooked? The evidence clearly shows that most people were solidly against this particular clause.

Mr. Greene: I want to make one comment on your previous question before I answer. As Canadians, we must look at the issue of security, and the task of making Canadians feel safe in their own country will neither be achieved with Bill C-11, nor, to a great extent, with any legislation. It has to do with prioritization and policy. That is especially true in immigration.

We believe you were originally told that Bill C-11 needs to be passed quickly because it gives us front-end screening. The minister announced a week ago that she has ordered front-end screening. That either means that she is acting illegally or that she has had that power all along. Our view is that she is not acting illegally. She has had the power all along to order front-end screening. The problem was that the budget was not there. She got funds released so she can do it now. It costs money to screen people at the front end. Our priorities as Canadians have changed. We now realize we must be more careful. It is a red herring to say this bill must be passed quickly. There is no magic pill in this bill. It has to do with resources and how we allocate them and where we set our priorities.

We know that many of the Liberal caucus, because we met with many of them privately, were profoundly uncomfortable with clause 64 as well. The opposition parties were unanimous in calling for its deletion because it is not needed. The IED works very well. There are no major problems. Once in a while, someone slips through and someone to whom you have given a second chance re-offends. That does happen. It also happens in the parole system, but we do not completely do away with the system. We tighten it up, but we do not do away with it. The solution the department offers is that we must do away with it.

They say it takes too long to remove permanent residents. I have heard the minister say that it takes six years to remove a permanent resident. I have seen a lot of permanent residents go much faster than that, and it was because the department sometimes had the will to make it move. This process can move quickly. A deportation hearing does not need to take a year. You can give the notice and have the person there within a couple of weeks, if you want to. Then the person files a notice of appeal. There is no reason for it to take two or three years to get to appeal. It usually takes about six to twelve months. It could happen much faster if the resources were allocated and priorities were set. The department and the minister use these kinds of figures to show it takes a long time. Due process and fairness do take some time. I remind you again of the multiple layers to the refugee process for strangers coming to this land, and the zero layers for permanent residents who may have been here virtually all of their lives, since they were infants.

Mr. Maynard: I can add a comment about what was said to the committee. When this provision took the discretion away from the appeal division, our first response was that this was mandatory deportation. How can you say that a permanent resident who has lived here for 30 years, and has one criminal conviction with the necessary two-year sentence, should be up for mandatory deportation? Are there not other considerations to examine, such as the likelihood of rehabilitation, criminal record, likelihood of re-offence, et cetera? The department agreed, and said in the second issue paper that they released that discretion would be exercised by officers, not by the appeal division. Where is it written in the act that that discretion exists? Where is the obligation to look at the circumstances of the case? They said, "We are not writing it in, but believe us, it is there." The committee was concerned about that. The department told the committee that there are lots of checks and balances in the system to ensure long-term permanent residents' individual circumstances are looked at. I would add to that point that we are accountable. There is judicial oversight of that process.

That, I am sure, left the committee with the impression that when the department exercises its discretion, there is a review of that to ensure that they had all the necessary information in front of them and did not misapprehend any of it. There is nothing of the sort. It is very inaccurate to say that there is judicial oversight of the discretionary decision. There is only judicial oversight of the questions, "Is your name Bob? Are you a permanent resident? Do you have a two-year conviction?" The department acknowledges to us that they will not put it into the act and they will not put it into the regulations because if they do, someone will challenge it. They do not want that challenge, and that offends us very much.

If you are going to take the responsibility for making these decisions, you must take it seriously. Taking it seriously means that you will be open to questioning, as you should be. Either your decision is right or it is wrong. However, to take that decision and isolate it from any oversight is wrong. That troubles us greatly. It is a matter of principle and a question of making good decisions.

Mr. Greene: I wish to raise a couple more points on that, because it is important. The minister will appear before you in a couple of days. She will have read the blues and she will anticipate what you will ask her. She will assure you that in 95 per cent of cases involving permanent residents, the department does not even take action. We take no comfort from that at all because one of reasons for that is that under the existing process, they know that they will lose those cases if they take them to a hearing. If you take away the process, there is no backstop. Therefore, that figure gives us no comfort.

To some extent, we are up against an emotional argument. As any of you who discuss this with the minister will discover, she is quite emotional about this. She has dug her heels in. She feels very strongly about this. She thinks it is part of a strategy to close the back door so that we can open the front door.

We believe that that is not necessary. We respect her intentions. She wants to get the bad guys out sooner, and we support that. We are willing to support an expedited process, but we think she is going much further than she needs to.

Senator LeBreton: You characterized clause 64 as "mandatory deportation."

Mr. Maynard: The department will point you to clause 44, which is the commencement of an enforcement proceeding. You will see that clause 44 says that an officer may issue a report that commences the enforcement proceeding. That is where they say their discretion is. We may issue a report or we may not. Somewhere in that process, we will weigh circumstances internally. However, there is no process set out for how that shall be done. There is nothing that says the officer must consider the circumstances of individuals when they do not have an appeal under clause 64. That is what is missing. That "may" is not adequate protection for the individual.

Senator LeBreton: I circled all the occurrences of the word "may" in clause 44, but I will ask the minister that question.

Senator Beaudoin: You say that since September 11, we have all been concerned with security. Of course, that is universal. However, if I am not mistaken, you say that this bill, as drafted, does not respond to our concerns in practice. Having regard to our values, our democratic and legal systems, does this bill respond to our concerns in the present situation?

Mr. Maynard: It does not answer everything, but it answers as much as an immigration bill can. There will be other legislation to address other aspects of the terrorism and security questions. There is the money-laundering legislation and the membership of a terrorist organization legislation. UN charters have been signed. Criminal law is to be written. We will have other laws that are not part of the Immigration Act but which address those issues. The Immigration Act is not the right forum for addressing those issues. The Immigration Act says that people who are security threats, who are members of terrorist organizations, are not admissible to Canada, and if they are in Canada, they are removable. They can be detained and put through a process to confirm that they are terrorists and, having been confirmed, they shall be deported.

That is what the act says now, and that is what Bill C-11 will say as well. There are some differences between Bill C-11 and the current act that have to with back-end processes, with the nature of the hearing process that is undertaken to determine whether a person is a terrorist. There are some changes there, but as far as front-end changes dealing with the ability to stop people at the port of entry, the ability to detain people, the ability to commence processes to determine whether they should be admissible are concerned, it is pretty much the same. I cannot see how it could be written differently to provide more protection. The bill says that we do not want terrorists in Canada. I suppose we could add the word "really" and say that we really do not want terrorists in Canada.

The Chairman: That idea sort of appeals to me.

I have a question about the transitional provisions. Transitional provisions in Canada on a whole range of public policy areas have always been such that if you are in a pipeline, you stay in the pipeline and the new provisions only apply to new entrants to the process. You say the transitional provisions have the potential to work unfairly. Is it possible to draft regulations vis-à-vis the transitional issues that would deal with your concerns?

Mr. Maynard: Yes.

The Chairman: Your sixth point could be dealt with through regulations?

Mr. Greene: Yes, except that we do not like what we are hearing from the department currently. There are two ways to deal with retroactivity. You can put it in the act or you can put it in the regulations. The bill states that everything in it is retroactive except where otherwise specified. Following that, it says that anything can be exempted from retroactivity by regulation.

The department has told us in our meetings that they intend to make everything retroactive other than what is clearly set out there, and that disturbs us in two areas.

The first area is the selection process. Due to the demand to come to Canada and the backlogs that exist, some people have been in the process for a couple of years. Depending upon in which country an individual is applying, it takes up to four years to process an economic immigrant on the point system. We are hearing different things, but the higher levels in the department are saying that the intention is to make it retroactive. Therefore, when the bill comes into play, all those applications will be judged by the new system. We are told not to worry, that most of those people will qualify under the new system anyway. We do not know that because we have not seen the regulations in the new system, but we have seen the outline of them, and I myself have cases that I know will not qualify. These people applied and paid their money under one set of rules, and in some cases they paid a lot of money. It currently costs $1,475 per adult. That is a lot of money to lose, but in addition to that, they lose their investment in their future.

The second area is that of a person who plea bargained and was sentenced to two year, perhaps a couple of years ago. Under this new law, they can be deported for that.

In some of these cases, appeals are already filed and before the board. The department is telling us they want to make that retroactive too. If the hearing has not commenced, which is usually due to delays in the system, those people are caught.

The Chairman: Therefore, the short answer to my question is that the problem can be solved by regulation but, to put it mildly, you are extremely uneasy that it will be.Is that an accurate summary of what you said?

Mr. Greene: Yes, and that is why we think Parliament should take more control over this. It affects basic rights.

Mr. Trister: We are really extremely uneasy.

Senator Di Nino: To follow up on this question, the provision of retroactivity principally deals with residents of Canada or those who are halfway through the stream at the present time, rather than the refugees coming in. Is that correct?

Mr. Maynard: It deals with everyone involved in any process governed by the act.

Senator Di Nino: Each of these 27,000 people out there somewhere could be subject to this. Is that correct?

Mr. Maynard: I believe that 27,000 figure is referring to people who have been ordered removed from Canada and it is not known whether they have left. That was over the course of the last five years. Those are not necessarily people in any process; they are people who have gone through the process. We do not know if they have left Canada.

Senator Di Nino: One thing common to all the presenters, except those from the department, has been a tremendous, pent-up frustration. It is apparent that the witnesses have a built-up frustration from what has been going on.

Mr. Maynard: Are we talking about department witnesses?

Senator Di Nino: I indicated other than department witnesses. I would imagine that is a result of the effort to deal with these issues over past years, as I think Mr. Greene was saying. The department has told us that the consultation process has gone on for three, four, five years. Have you been involved in the consultation process on this bill throughout that period of time?

Mr. Maynard: I personally have.

Mr. Greene: Unfortunately for my wife, it has been a long process. The minister and the department will tell you they have consulted a great deal. It is frustrating, first, that we did not see the bill until it came out as Bill 31. That bill was horrific. It was substantially changed before Bill C-11 was introduced. You may recall that an election was called.

It is only in the last year that we have been talking about real legislation and getting to see what it looks like. It was substantially different from what some of the discussions led us to believe. Part of the frustration involves an emotional argument. We see what we passionately believe is right and will work well come up against an emotional argument, and an unwillingness to move on those grounds. That can be frustrating.

It is one thing to hold consultations; it is another thing to make them meaningful. I do not want to criticize the department or the minister, as we have had some consultations that have produced results. It would not be fair to say that they do not listen or that they are going through a sham exercise. However, in some areas, there is no question it is like talking to a brick wall. The department or the minister has an agenda and there is just no budging. There are other areas where some good, meaningful work has been done.

This is a fundamental rewrite of the whole bill. This is how we will do immigration law for probably 25 years, if the last Immigration Act is any sign. Therefore, it can be frustrating when we see a fundamentally poor design and cannot get anywhere.

Mr. Maynard: The consultation process has gone on for four years. It started with the LRAG - the legislative review advisory group - doing consultations across Canada. I participated in those. You go into a room with 20 people you have never met before, and for an hour and a half you talk about immigration. You do not get too far with that kind of consultation. After a year of that, out comes a policy paper. A year later comes the minister's policy paper. These are policy papers. They are written in big letters and with big thoughts. It is hard to talk about policy. You say, "Yes, we agree with that policy, but how do you plan to legislate it? What will you say?"

As Mr. Greene says, this proposed legislation was not out there until a little over a year ago. That is when you really start to see what the substance is and get down to the individual clauses and start asking, "Does this work?"

Real consultation has not been going on for four or five years because the bill has not been around for four or five years.

Mr. Greene: The process has been rushed since Bill C-11 was introduced. It was rushed at the House level. The minister wanted to get it through. Some MPs told us that her office put out the word that this bill was needed to stop the Chinese boats. Now it comes to the Senate and they say, "We need this bill for security reasons and we must ram it through quickly."

That process is frustrating. It was frustrating at the House level because their agenda was to move very quickly. They did have hearings, but it was a tight agenda. It was always push-push-push to get this through quickly. It had to be passed before the June break.

I have spoken enough about that for you to get the picture.

Senator Di Nino: I also understood you to say that you have a number of areas of concern, but particularly about legislating, in effect, through regulation, and that it may be, particularly with Bill C-11, excessive.

Mr. Greene: That is fair. I think Mr. Maynard already commented on it. Basic rights are being affected by regulation, and that is the difference. It is partly in the name of transparency and the ability to move fluidly with changing circumstances, but you sacrifice something. You sacrifice, to a great extent, parliamentary control. Parliament does not make the regulations. You can have a hearing and discuss them, but we know who makes regulations.

Senator Di Nino: One of your comments came as a surprise - that if we put the necessary resources to work with the previous legislation, we could solve all the problems that the minister is claiming cannot be solved without the passage of this bill. Is that correct?

Mr. Greene: I will say that there is no panic to pass Bill C-11. It does contain improvements. There will be changes - for instance, the removal of someone who is designated as a terrorist. It now goes through a two-step process. It can go to the Federal Court and then to a review by the Security Intelligence Review Committee. They are taking away the SIRC review, thus removing one step from the process. We do not support that because of the fairness issue.

However, there is something else we have not even touched on in that whole area, and that is their ability to introduce evidence that the individual does not know about and cannot respond to, and extending that in Bill C-11 to other types of hearings, not just in Federal Court. That is a change. You cannot deny that that is a change from what we have now.

The dust is still in the air from September 11 and we are all in a state of shock, trying to assess the situation. However, the apparent problems involve trying to catch these guys before they enter Canada, or at the time they enter Canada, or finding them once they are here. You already have the tools for these things in the current legislation. The power to do a front-end security review is there. At a port of entry, one can arrest on mere suspicion. One does not need reasonable grounds. If one is not satisfied about a person's identity, that person can be arrested and detained and the detention can continue. If there are concerns about identity or reasonable grounds to suspect this person might be a terrorist, that is enough. That is there already. One does not have to prove someone is a terrorist. If an officer has reasonable grounds to believe a person is a terrorist, that is enough.

Senator Di Nino: We asked some of the immigration officers about the 72-hour limit on upfront screening. Their answer was that there is no way that can be accomplished. Can you comment on that?

Mr. Greene: Mr. Kers spoke with you yesterday about that. That applies to the commencement of the process. That is our understanding.

Bill C-11 mandates that the process must start within 72 hours. Mr. Kers said we do not have the resources to do that. It is true. We must decide how many resources we want to put into the department. The change must be made there. If we want to quickly remove criminals from Canada, we must say it is a priority and put resources there. We can do it without throwing out all the reviews and rights. However, some things cost money.

Similarly, detention, which is very controversial, would perhaps be the most effective way to deal with the problem. Using detention more often would help keep track of the 27,000 people you discussed. Moving that process along faster would do it as well. We are concerned and we are not arguing for more process. Bad refugee claims bring disrepute on the whole system and undermine people's confidence. We do not want to sacrifice the people who really need our protection, but we want to get those undesirables out faster.

Mr. Maynard: I wish to clarify the concerns about not being able to do a full review in 72 hours. When someone wishes to advance a refugee claim, that individual must go through an immigration officer for referral and determination of eligibility, and at that point, Immigration does background and criminality checks, takes fingerprints and photographs, and gathers information to determine eligibility.

Once that determination is made, under the current system, the claim is referred to the Refugee Division, and the current problem is that there has sometimes been a six-month delay in making that referral, which lengthens the time before the claim gets heard. Bill C-11 proposes that when a person makes a claim, there is a deemed referral after three days so the board can start processing it. It does not mean that the background checks must be done within 72 hours. They can still be ongoing, but the board gets started as though the referral had been made. If the background checks turn out to be negative, the department can have the claim halted and the matter concluded. The 72-hour referral does not put a cap on the period of time spent determining whether someone has background or security problems.

Senator Di Nino: In your opinion, do any of the provisions in Bill C-11 offend the Charter, or could they be challenged?

Mr. Greene: The department and the minister will tell you, "Our litmus test is the Charter. Our legal department assures us that the bill complies with the Charter in all respects, and that is all the fairness we need."

We believe that Mr. Trudeau did not intend the Charter to be the maximum standard of our just society. There is a minimum standard, but in this bill the minister has interpreted it as the maximum she must meet. That aside, there are some concerns. The removal of long-term permanent residents without any consideration whatsoever is potentially a violation of Section 7 of the Charter.

The Chairman: Life, liberty and the security of the person.

Mr. Greene: Not to be deprived thereof except in accordance with the principles of fundamental justice. Section 15 of the Charter, the equality provision, deals with the re-entry of permanent residents to Canada. There is a concern about permanent residents who are stranded overseas, their card expires, and they want to come back. People from a non-visa-requiring country, such as the United Kingdom, could jump on a plane and would be admitted. Their status may be taken away, but they will be admitted. A visitor to a country such as India is required to have a visa and would not be able to get on a plane because the airlines are instructed not to carry anyone without a valid permanent resident card. That is discrimination on the basis of nationality.

We already discriminate on the basis of nationality by requiring visas from some countries. However, that requirement is for visitors, because there are abuses of the visitor system. They claim refugee status or they tend to disappear underground.

However, because of the way the bill is set up, permanent residents can only have their status taken away by a full process. We are discussing permanent residents who cannot come back to Canada because of their nationality. Those visitors do not have Charter protection because they are not in Canada and have no claim to Canada. There are places in the bill where there are Charter concerns. I do not think that Parliament meant the Charter to be the maximum test of what is fair and just in our society.

Mr. Maynard: With respect to clause 64 and deportation of long-term permanent residents without equitable review, the minister and the department will indicate it complies with the Charter, and the simple fact is they might be right. The Charter is not all it is cracked up to be.

Years ago, in the Chiarelli case, the Supreme Court indicated that no permanent resident is entitled under the Charter to an equitable review when undergoing deportation. That case has been long remembered by the department. According to the court at that time, it is the will of the government as to what kind of review it gives a permanent resident. We happen to think it proper to give a full review.However, the Charter does not guarantee it according to that reading of the law. Five or ten years from now, the Supreme Court might one day have a chance to reconsider that. If Bill C-11 becomes law, it will it take that long for some of those cases to get to the court, if they ever do. It is difficult to get to the Supreme Court.

The Chairman: Is it plausible to interpret clause 64 as giving people who have been here a long time a more than reasonable incentive to become citizens? If so, what is wrong with that? If a person has lived in this country for however you define "long term" - 15, 20 years - it is not reasonable to expect that person to decide to become a citizen rather than remain a permanent resident, in which case, none of the problems you are concerned about would exist. I see you nodding, so I assume that is correct.

Mr. Greene: There is no question that the net effect is to put a premium on Canadian citizenship.

The Chairman: My reaction is, that is good.

Mr. Greene: I believe that is the minister's opinion and part of the motivation. However, in many cases, people do not take out citizenship for legitimate reasons. For example, some people do not obtain citizenship for their children because many countries do not allow dual citizenship. Canada is not one of them, but some Western European countries, such as the Scandinavian countries, Germany and Holland, do not allow dual citizenship. In an increasingly global economy, they want their children to be able to work in Europe if they want to. They want to have it both ways.

The Chairman: I understand people wanting to have it both ways. I am asking if that is reasonable.

Mr. Greene: I have seen a number of cases where permanent residents who thought they were citizens found out they were not when an immigration officer visited them in jail to inform them they were on their way out of the country.

The Chairman: Can someone who discovers he or she is not a citizen apply at that point?

Mr. Greene: No. If you have a conviction within the last three years, you are ineligible.

Senator Cordy: I have heard that a very high percentage, 80 to 95 per cent, of immigrants actually apply to become Canadian citizens within five years. Would that be correct?

Mr. Greene: I do not know the numbers, but that would not surprise me. Frankly, the number will rise because of this kind of provision. That does not make this right. There are still ways to take a hard line on encouraging people to get their citizenship without totally stripping them of any review process.

As a follow-up comment on clause 64, we are not just talking about the rights of criminals or alleged terrorists. We are talking about all kinds of other people who can be affected by that decision, many of whom are Canadian citizens. These people have spouses, children, parents, siblings and extended communities. They may have employers or employees who rely on them. Again, this highlights the difference in how we treat strangers who have no ties to Canada, and people who may have a complex network of ties.

Senator Cordy: I believe Canadians would agree generally that the vast majority of immigrants and refugees who come to Canada want nothing more than a better life for themselves and for their children. We have discussed clause 64 before and I think that most Canadians looking at it would think of people who commit a very serious crime. Yes, one has rights upon coming into this country, but one also has responsibilities. One of those responsibilities is to be a good, productive resident. Many Canadians would probably agree that if one were not fulfilling one's responsibilities to the country, one would in fact be giving up the right to appeal after a serious crime.

Mr. Greene: We agree that people should not be allowed to come here and abuse the privilege. We are not saying those people should be allowed to stay in Canada. In many cases, it is appropriate to deport them. The Immigration Appeal Division agrees and they will deport people. We are not saying that such people have no right to process at all. In serious criminal offences, an accused has a right to due process, even after conviction. This situation is no different, plus we are considering the interests of many other people who may be affected. Those people can be deported.

One of the disadvantages of Bill C-11 is the all-or-nothing process. The department must proceed or not; it has no other alternatives. If a long-term permanent resident with a complicated network of ties comes before them, the board can decide to deport without appeal or let the person stay and take no action. There is no third alternative.

Under the current system, in grey-area cases - not all cases are black and white - the Immigration Appeal Division can stay the deportation order. They do not simply allow the person to stay freely. The deportation order is stayed and the board then imposes terms and conditions, saying, "If you violate these terms and conditions, you are out of here." That is a very powerful tool. I have seen it used. I have attended many IAD hearings and I have seen clients whose lives have been turned around just by having those conditions imposed. There is a sword hanging over them then and the conditions can force them to get help they may need with drug or alcohol problems or counselling requirements. There is no power in Bill C-11 to impose conditions or to help these people, to move the grey-area cases on to the positive side.

Mr. Maynard: "Serious criminality" under clause 64 is just a phrase. The minister stands up and says that this bill takes away appeals from serious criminals. It does not. The bill takes appeals away from those whom the bill defines as serious criminals, meaning simply persons with convictions for which they received a two-year sentence. The definition says nothing about background, long-term criminal lifestyle, circumstances of the offence, or the likelihood of rehabilitation.

Those of us who have dealt with the board understand the kinds of questions they ask when determining whether or not a deportation order should be stayed. There is a real examination of whether the applicant is a serious criminal and whether society needs to be protected. This bill does not allow for that. It draws a line in the sand. The department acknowledges that this is just a line and not a particularly good one. They understand that they need to exercise discretion. They just do not want to say that.

Mr. Greene: It is hard to say what defines a serious criminal. In my province of Alberta, our courts like to imprison people. The statistics show that our judges jail more people for longer. Senator LeBreton knows this very well. We draw the line differently than in B.C. or Quebec. More Albertans will find themselves falling over this threshold.

Take the example of someone who drives while intoxicated and causes a fatal accident. If the person had been pulled over and charged with drunk driving before anyone had died, the sentence would have been a six-month suspension and $1,000 fine perhaps. If someone dies as a result of the accused's drunk driving, it is common in my province for the courts to impose a penitentiary sentence of two years or more. That meets the definition of "serious criminality." Is that person a serious criminal? There is no doubt that a serious crime was committed, but is the person a serious criminal?

These things are very difficult. Some people in that situation should be removed. They should not get a second chance because of that consequence of their actions. For others, we must look at the circumstances. Perhaps an applicant was in the wrong place at the wrong time with the wrong people when there was a fight, and someone was injured. The person, in self-defence, used too much force and, as a consequence, death or serious injury resulted. The Latimer situation is another example.

This bill is arbitrarily saying that everyone sentenced to two years or more is a serious criminal. Some of them are and should be removed. The IAD does a good job of considering the facts in such cases and making decisions. From what we have seen, they do not have many failures.

Mr. Maynard: We underscore that our recommendation to the department, as an alternative to clause 64, was a three-level solution. Get rid of clause 64 altogether and let everything go to the appeal division, or take out the "serious criminality" element. That is just not a good line to draw. Let them go the appeal division.

We suggested they enact a domicile provision. A permanent resident who has lived in Canada for at least five years should have the right to appeal, because there is at least a possibility that there are meritorious considerations to be taken into account. The board decides whether the person can stay. The decision may well be deportation, but at least there should be an opportunity for appeal.

The fourth level would be that the bill should require consideration of the circumstances of the individual. There are layers of solutions.

The bottom line is that, the way clause 64 is now written is totally unacceptable. It does not do the job. There are much better ways of doing this.

Senator Beaudoin: My question is addressed to Ms Zambelli because she is from the Quebec bar.

Do you agree generally with what the Canadian Bar Association has stated about clause 64?

Ms Zambelli: I would recommend what Mr. Maynard suggested, taking out the "serious criminality." I do not know if we are prepared to take out the terrorism aspects. We may want "mandatory" deportation for war criminals, terrorists and the other groups listed in this bill. However, on serious criminality, I am entirely in agreement with the Canadian Bar Association.

No matter what happens, this clause will be the subject of numerous lawsuits and much litigation. It will cost the government a lot of money. It is clearly on the edge of constitutionality because it is so extreme. It is much too black and white. It is very anomalous in Canadian law. The scope is far too broad. It encompasses everyone, including the permanent resident who may have been here since infancy, and denies the person consideration of all the circumstances concerning the offence and the traditional humanitarian appeal that we have had in our legislation for many years.

Senator Beaudoin: Do you have doubts about the constitutionality of the clause?

Ms Zambelli: For long-term permanent residents, and on the question of ordinary criminality or serious criminality, I would have serious doubts about Section 12 of the Charter, cruel and unusual treatment, and possibly Section 7. Technically, the Federal Court does not recognize deportation as a deprivation of liberty.

I know enough immigration lawyers to know that there will be a lot of litigation, a massive assault, on this. It will cost the government a lot of money to defend this clause.

Senator Roche: Mr. Chairman, I have been troubled by this bill, and the witnesses this morning have made me more troubled.

You say you do not want to criticize the minister, yet you also said that she is advancing an emotional argument to get this bill through. Maybe she has something to be emotional about. Her neck is on the line if she is not able to show the Canadian people that our immigration laws are consonant with the situation in which Canada finds itself. Canada needs immigrants. On the one hand, we have a duty to take refugees for the good of our country. On the other hand, we have a duty to protect the public against the admission of terrorists. If we do not strike the right balance, I think the minister foresees, as probably do many others, that our country will be open to the accusation that our immigration laws are too soft. That may bring up this demand for harmonization between our laws and those of the United States so we can have a perimeter around North America, a concept that I think causes many thinking Canadians deep concern.

Therefore, as we must balance these two requirements for the good of our society - open admission as much as possible, closed off to terrorism - I am asking myself whether this bill is fundamentally fair. It is a complex bill, and it is tough for a non-specialist to deal with every aspect of it. I heard you on clause 64. However, is this bill fundamentally fair?

I believe that, as senators, we must examine more than just the legal concerns. I do not diminish those, but it is not just legal concerns bringing this forward. We must ask ourselves if this bill is morally right. We have a moral duty to advance the overall interests of our country in this duality that now exists post September 11.

I must say to you that I am not convinced yet that this bill is a bad thing for the reasons that you have said. You do not like the rush. Sometimes in life you must rush, and the exigencies brought about by September is 11 are of such a magnitude that the Government of Canada cannot afford to be seen to be doing business as usual. I know you will say this is a chamber of sober second thought, and I am trying to give some sober second thought to it, but I am worried that if we mess around with this bill too much, that Canada could put itself in a position of receiving demands from the United States on the kind of immigration legislation that we enact.

You can take that as a concern that I put before you, and I invite you to answer in any way you want.

Mr. Greene: Thank you for your sober thought. This bill does deserve that kind of thinking and that kind of balancing, and that needs to happen. Public confidence is very important. The confidence of our neighbours to the south is very important as well.

The minister handled the boat situation from a year and a half ago very well. I think that there was a great public outcry. People were terrified that the boat people would overwhelm the country. The boats started coming. She handled that situation without needing to change the law. The powers were there all along to do that. The power to detain was what did it. These people realized that after landing on our shores, they were not going to get to hang out here and then sneak into the United States, which is what they really wanted to do. By the way, that is probably where most of those 27,000 people we spoke of earlier are right now. They realized they were going to end up in detention, and after a year or two they would be shipped home. That stopped the boats.

There are things that the government can do to maintain public confidence. The front-end screening that the minister put in place last week can be done under the current legislation. There are steps you can take. To rush through legislation just because you want to look like you are doing something is extremely dangerous.

The U.S. Congress is faced with exactly that dilemma now. The administration introduced what they called "anti-terrorism legislation" that contains some very draconian provisions, including the power to say, "We get to say who is a terrorist, and you cannot review that decision in any court in the land." Thank goodness in that country they are looking at that carefully and have refused to accept that particular provision. They have accepted some provisions and not others, and have sent it back. That country faces far more pressure to do something to create an impression with the public that they are taking action.

On this idea that you must take action to give confidence to the public, yes, by all means, and the public wants it taken quickly. However, that does not mean you must pass a bill that does not add anything substantial, and in fact detracts seriously from people's rights. That is not the action that needs to be taken.

Ms Zambelli: I have looked at the American system also. The major fallacy is that somehow, on paper, our system is weaker than theirs. In fact, on paper, our system has been a little ahead of the American system in working on anti-terrorism aspects of immigration law. I know that certainly Canada has always been in the forefront of refugee determination in the world. We have been focusing on excluding war criminals and terrorists in a much more direct way than the United States. I think the public perception of Canada as weak is fallacious, and if we are to do anything, that should be debunked. Our present Immigration Act, as everyone has been saying, has measures to prevent terrorists from entering our country, and we have had basically the same structure since 1989.

Screening of refugee claimants and eligibility provisions before they can enter the system have been toughened up over the years, but the concept has always been the same. It is a fallacy being perpetrated in the international community that Canada has weaker immigration laws than the United States. That is a public perception that must be debunked. Whether we pass this law or keep the old one, there is not much difference. In fact, in the old law, under section 103.1, there is mandatory detention of unidentifiable persons in Canada. In Bill C-11, it is optional. Therefore, some aspects of the current act are stronger than Bill C-11. Essentially, the provisions are very similar. We have had that concept since 1989. It is just that we have not had the impetus before now to put the resources into the front end - the investigations, the enforcement and the coordination of intelligence. We have not given the officers at the border and the refugee board the right information. We have the structure in place; it is only a question of putting the money in the right places. Canada is taking an unfair rap because our laws are no more lenient than those of the United States. In fact, we have been more proactive in working on anti-terrorist legislation than the United States. I do not know what their agenda is, but it is very unfair to suggest that we must change, because we have been on the right track for a long time.

Senator Morin: What you just said is extremely important. Did you say that there is one point on which Canada is weaker than the U.S.?

Ms Zambelli: No, I was talking about Bill C-11 versus our current law.

Senator Morin: It was not in comparison to the U.S. at all?

Ms Zambelli: No. The U.S. has more mandatory detention provisions than we currently have, but in many other respects, we have, and have had for a long time, the structure in place to screen out undesirable elements from our country.

Senator Morin: That is very important to know.

Ms Zambelli: It has been very tough to be an immigration lawyer since September 11. One gets assailed by everyone, and I keep repeating the same argument.

The Chairman: The feeling of being assailed is familiar to every member of this committee. Welcome to the club.

Ms Zambelli:Canada is not perceptively weaker in terms of laws. There is a problem, of course, in the implementation of them and in the political will to enforce them. Since 1989, we have had safe third country provisions that would have stemmed the flow of probably 50 per cent of all refugee claimants. Those provisions have never been enforced due to various problems, but we have had those tools for over 10 years.

There may now be more political will to spend money to enforce what we already have, but the concept that Canada is legislatively weak and softer than the United States on refugees and terrorism is a gross fallacy.

Senator Fairbairn: Thank you all for being here and for your very spirited presentation.You have all focused in one way or another on the limitation of access to the Federal Court in the new proposal. Ms Zambelli particularly expressed disappointment in this. You also spoke to the qualifications of the people who would make those judgments.

Part of the issue of resources in that area is a question of money, but you have a different concern. Leaving the Federal Court aside for the moment, do you believe that it would be desirable, if not necessary, for the new regulations to include qualifications for those who are to be appointed to the appeal board, for instance?

Ms Zambelli: If it were set out somewhere, even in regulations rather than in actual legislation, it would be a step forward. If it is legally possible to set out that type of thing in regulations, as it appears to be, I would support that.

As I said, the House of Commons committee proposed an amendment to the bill setting out ballpark qualifications for members of the refugee division. The committee did not adopt that amendment, although there was a movement in favour, and I was disappointed that it was not passed.

This is a preventive type of measure. It focuses the resources on getting the right decision by the refugee board the first time. If that were done, we would not need to spend money on other aspects that we could be spending on national defence or whatever. The refugee system deals with 30,000 people every year. We can start to maximize efficiency by ensuring a good-quality hearing in the first instance in order to minimize these types of errors. The only way to do that is to move away from our current system of politically motivated appointments and toward something more functional.

Senator Robertson: Ms Zambelli, you spoke about an issue with which many Canadians are concerned. You tell us that our laws are as good as or better than the American laws and that Canadians should appreciate that and stop complaining. Average Canadians do not have the legislation before them, but they would expect that any law would be adhered to. They would expect that laws concerning the security of our country would be adhered to as much as is the income tax law. However, perhaps they have been let down. Canadians want to know why, if our laws are so good, we are so apprehensive about the environment and the circumstances in which we currently find ourselves.

Ms Zambelli: Until this moment, there was no political will to uniformly enforce the tools we have at our disposal.

We are all looking at each other and asking why we did not do something before. I do not know. It was not done in the States either, so do not start blaming us now. We do not know the answer to that question. The point is, it is in the past. Luckily, we have the framework. As Mr. Greene pointed out, Minister Caplan said the other day, "I am starting to enforce the screening procedures now against refugee claimants," and you can do it in short order. As was rightly pointed out, it is a perfect example of where we have the power, and it is a question of the political will to start using it.

Senator Robertson: You spoke of the American circumstance and our circumstance. How do the Americans deal with serious criminality in their immigration refugee process?

Ms Zambelli: It is similar. One can be excluded from refugee status, for example, if one has committed a particularly serious crime. That is standard to all the countries that have signed the convention. Of course, one can be deported if one is a resident alien of the United States for more or less similar types of crimes. As I said, our systems are quite parallel, generally based on the same policies and overall objectives.

Senator Robertson: There are 27,000 people whose whereabouts we do not know; would the Americans have a similar number relative to their population?

Ms Zambelli: It is more.

Senator Morin: They have 6 million.

Mr. Greene: We have heard the number of illegals there is 5 to 6 million.

Ms Zambelli: As Mr. Greene was saying, there are already tools to deal with those 27,000 people. There are controls over people's movements that can be exercised. For example, if you do not want to detain everyone, they can be given stricter conditions. They can be given reporting conditions. They can be made to report to your office once a week or once a month. There are many different tools available to keep better track of people.

As Mr. Greene was saying, there is only so far that immigration legislation can regulate this because we have the problems of forged documents - resident cards, passports and visas. That type of thing is outside the control of immigration legislation. Other areas of government must take that up.

Senator Robertson: Is there anything like clause 64 in the American immigration legislation?

Ms Zambelli: I would have to research that a little more. I am not sure.

Mr. Greene: In 1996, there was what one can only call an anti-immigrant swing in the newly elected Congress. Some harsher legislation was introduced to deal with criminal offences. The Americans do have different processes for dealing with them that I thought were more generous than ours. It is a farce for Americans to say that our laws are laxer than theirs. They are not. Our definition of terrorism is much broader than theirs. Our definition would not stand up to their Constitution.

They are now backtracking on the criminality issue, because in some areas they went too far. Even Lamar Smith is saying they went too far. You do not get any more extreme than Lamar Smith.

Mr. Maynard: I do not know exactly the U.S. law in the matter, but I have always taken the view that we do not need to take lessons from the United States on immigration law. I think we are pretty good at it.

However, I do have knowledge of how Australia, France and the United Kingdom deal with immigrants who are subsequently convicted of serious criminality. In Australia, there is a 10-year rule. If you are resident in Australia for 10 years as a permanent resident, you cannot be deported. Your establishment there makes you a de facto citizen. There can be no removal.

France has a complicated series of rules depending on whether you are married to a French citizen and at what age you came to the country, again protecting long-term permanent residents.

English law has the requirement that the circumstances of the individual must be looked at if the person has been there since a certain age.

The last comment I will make is that in 1998, the Parliamentary Committee on Citizenship and Immigration issued a report in which they said we need to look at protecting long-term residents in Canada from removal processes; not that they should always be allowed to stay, but we must look more carefully because we do not offer enough protection under our laws. This bill goes completely in the other direction.

Senator Robertson: I am not suggesting that we should look at the American scene or try to parallel it in any way. I suggest that the citizens of Canada should know the facts in order to better understand the circumstances in which they find themselves. One of the problems now is that they do not know the legal position, and that is regrettable.

Mr. Greene: It is a difficult situation for you on the political side. If there is a sieve in the immigration laws, it is south of the border. The Americans complain about those people who come here whom we do not get rid of, who sneak into the U.S. and commit terrorist acts.

Where do you think most of those 30,000 refugee claimants Canada gets per year come from? How did they get there in the first place? The problem is that the U.S. immigration system is no more effective than ours. They have lots of people who come in and dupe them. Some come in and are given visitors' visas and they do not stay as visitors. They have a different intention altogether. Their intention is to abuse our refugee system or to stay illegally in the United States.

The U.S. has a far bigger problem with illegals than we do. It is convenient for American politicians to point a finger and blame someone. Blame it on Canada.

The Chairman: Politics has been defined, after all, as the art of shifting the blame.

Mr. Greene: It is much harder for Canadian politicians to say it is the Americans' fault. We are careful about that kind of criticism. Canadians should know, and Canadian leaders should take the initiative in saying, that our system is good. It does need to be improved. We need to look at the way we do things and we need to shift our resources, our priorities, and the way we handle certain situations. We do have a system we can be proud of and it certainly is not second to the U.S. system.

The Chairman: May I thank all of the witnesses for coming.

The committee adjourned.