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

Issue 27 - Evidence (afternoon session)

OTTAWA, Monday, October 2, 2001

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 2:15 p.m. to give consideration to the bill.

Senator Michael Kirby (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, our witnesses this afternoon are Ms Sharryn Aiken, from York University and Ms Marnie Hayes, from the Coalition for Just Immigration and Refugee Policy.

In this panel, we also have Ms Nancy Elliott, form the Canadian Centre for Social Faith and Justice.

We ask each witness to present a brief opening statement of the highlights of his or her brief. We will then ask questions of you.

Ms Aiken, please proceed after which we will hear from Ms Elliott.

Ms Sharryn Aiken, Faculty Member, Centre for Refugee Studies, York University: Honourable senators, I will not detail the many recommendations in my brief. Rather, I will focus, for our purposes this afternoon, on recommendation six and recommendation four, in that order.

I will backtrack to 1987, to the time when Parliament was recalled because a national emergency had been declared by a former conservative government in the wake of the arrival of some 150 or so Sikhs in lifeboats off the coast of Nova Scotia. A public hysteria was whipped up at that time.

I wish to recount the very sober words of Liberal Senator Jerry Grafstein, who echoed the concerns of many MPs and other advocates that public opinion was being manipulated in the aftermath of a crisis that really was not a crisis. In October, 1987, Senator Grafstein, on Bill C-55, said:

Some wise man once said that a country's refugee policy is a barometer of that country's definition of justice. Thus, we should examine the bill with great care and ensure, as the Senate has in the past, that we will not be pushed by public hysteria; that we will not be pushed by emotional ism; that we will examine the bill in a calm, deliberate committee process in order to determine if the minister's words are matched in the legislation so that we can end up with a fairer and sounder refugee system which sends a sig nal to Canada and to the world that we are prepared to ac cept our public responsibilities at home, in the same way as we voice our concerns abroad

I would urge this committee to heed Senator Grafstein's advice at this time. I wish as well to acknowledge the pressure that this committee is under in the wake of the horrifying attacks of September 11. There is a climate that is not unlike what we saw back at various junctures in our history. We could speak about the frenzy whipped up in the aftermath of the Winnipeg General Strike, which sought the detention, internment and subsequent deportation of 100 "foreign-born agitators." Back in 1987, some very draconian measures were introduced that unfairly targeted refugees. In fact, the most draconian elements of that bill were ultimately not passed.

I wish to acknowledge the fact that this committee today is under a similar kind of pressure. Some people before you are undoubtedly clamouring to pass Bill C-11 as quickly as possible, urging the government to give them the tools to do their job. Others, from whom you may hear, will recommend that this committee should urge sweeping changes, seek to have Parliament reopen the bill and impose further restrictions.

I would submit that to the extent that there are flaws in Canada's security system, those are flaws of implementation and administration, not the absence of legal tools. The current Immigration Act already goes too far in the area of national security. I stand by that even today, even almost a month after the tragic events of September 11.

This committee should be thinking of the need for a careful review of how CSIS does its job and take action to respond to the concerns highlighted year after year in the annual reports of the Security Intelligence Review Committee.

The Senate is the place for sober second thought. I would urge all honourable senators to take that sober second thought. I would have us all recall that in 1979, when the RCMP was responsible for immigration security screening, some 800,000 Canadian citizens were subject to RCMP files. That did not include the population of immigrants being targeted by the RCMP.

As a result of the MacDonald Commission and the abuses that were exposed from those years, CSIS was created. This was an independent civilian agency with a very important means for accountability and oversight of the security functions within the state, namely, the watchdog known as the Security Intelligence Review Committee.

I am particularly concerned, and I am getting to my recommendation 6, that the current bill, Bill C-11, proposes to emasculate the security intelligence review committee by stripping permanent residents of access to SIRC when they are subject to security certificate proceedings. I want to remind this committee that group after group and study after study have actually called for SIRC's jurisdiction to be expanded, not restricted.

These studies have recommended that not only permanent residents subject to security certificate proceedings should have access to SIRC, but that anyone should. Why? SIRC was created as a specialized expert body to review the merits of security opinions. They specialize in that job. Unlike the judges of the federal court, who are essentially generalist, the Security Intelligence Review Committee was set up to do a highly complex, difficult job in an increasingly complex international environment. Why should we emasculate that at the time when we need that type of expertise?

Furthermore, access to the Security Intelligence Review Committee is a critical safeguard for permanent residents. In many cases, these are people who have long ties and connections to Canada, people who may have been here for 15 years or 20 years. Anyone who is subject to a security certificate - in other words they have been deemed by the Solicitor General and the Minister of Citizenship and Immigration to constitute a threat to the security of Canada - is subject to automatic detention and the initiation of removal proceedings.

We are talking about very serious incursions on human rights and the possibility of exposing already vulnerable people to further abuses of rights. I am very concerned about that.

That leads very clearly to the second main theme that I want to highlight in my opening remarks. That is the question of situations where individuals are at serious risk of torture.

I find it interesting that, as a result of the hearings before the House of Commons committee, a new clause was inserted into Bill C-11. Clause 3 was amended to include as an important objective, compliance with international human rights instruments to which Canada is signatory. That is an important addition.

I would submit, however, that unfortunately the text of Bill C-11 currently does not address the explicit objective that has been added into the bill in this particular respect. The consequences are quite serious.

If the bill is passed as is, Canada will continue to deport individuals despite the fact that there is evidence that they will risk torture if they are returned to their country of origin. The United Nations has consistently and roundly condemned the practice of Canada in deporting individuals to face torture. In doing so, we become every bit as guilty, every bit as much an accomplice as the torturers themselves.

What should we do with these persons who may represent a genuine security risk? We have the means in our existing criminal justice system to prosecute people who are guilty of international crimes. They should be subject to due process and to the rule of law.

Canada's support for the International Criminal Court, as well as the amendment of our own Criminal Code last year with the War Crimes and Crimes Against Humanity Act, is strong demonstration of Canada's commitment to the goals of international justice. We should not be using our immigration system as the back door when human rights as basic and fundamental as the right to be free from torture is at stake.

Those are the two main points that I wish to emphasize in my remarks. I prefer not to take longer at this stage. I look forward to engaging in exchange and hopefully an opportunity to address any concerns that you may have.

Ms Nancy Elliott, Member of the Legal Committee, Canadian Centre for Victims of Torture: Honourable senators, the Canadian Centre for Victims of Torture welcomes the opportunity to present its views on Bill C-11.

The Canadian Centre for Victims of Torture is a unique organization with a specific mandate. Since its inception in 1977, CCVT has provided services to more than 11,000 survivors of torture, war, organized violence, and so forth from more than 110 countries. The Centre is the first of its kind to be established in North America and the second facility of this type in the world.

Working with the community, the Centre supports survivors of torture in the process of successful integration into Canadian society, advocates for their protection, and raises awareness of the continuing effects of torture and war on survivors and their families. With a large network of medical doctors, psychiatrists, psychologists, therapists, social workers, lawyers and teachers, CCVT provides expert advice services and support to survivors. Our mandate therefore is not identical to that of a refugee support organization. Not all refugees are victims of torture.

In addition, CCVT has been monitoring national and international instruments relating to torture, survivors of torture, war and organized violence. We have collaborated with the Government of Canada in monitoring the implementation of the convention against torture. We have had regular communication and participation in annual consultations with the minister of Foreign Affairs. We have attended UN seminars on the prevention of torture. We hope to get consultation status with the UN Social and Economic Council later this year.

Many of CCVT's clients have fled regimes that have engaged in widespread terror, torture and oppression of peoples. Many of CCVT's clients have run from the horror and devastation of war. All of them have looked to Canada as a safe haven and as a place to seek protection where their rights will be recognized and supported.

It is with a keen personal understanding of the violence of terrorism and war that CCVT makes its comments. CCVT urges the Senate committee to consider carefully the priorities of our immigration and refugee protection law in Canada.

We want to ensure that the actions taken in the consideration of Bill C-11 produce the results we all desire, which is a safe, protected and prosperous country, which prides itself on democratic values, respect for human rights and on its role as a leader in humanitarianism.

There are several aspects of the bill that CCVT applauds and supports. The first is the specific reference to article 1 of the convention against torture in the bill, under clause 97. This gives an individual the right to apply under the convention to be found to be a person in need of protection. CCVT welcomes that.

We also support the specific reference in the proposed legislation, to which Professor Aiken made reference, that the legislation should be construed and applied in a manner consistent with Canada's obligations under international human rights instruments. We welcome the appeal process for refugee claimants, the strengthening of family reunification and the limiting of detention of minors.

However, hand in hand with these positive steps, there are many examples that the CCVT feels will be potential violations of our duties under the convention against torture and the Charter of Rights and Freedoms.

The first is the allowing of refoulement to torture. This is an extremely serious violation of the intended result of article 3 of the convention against torture. Article 3 of the convention against torture makes the right of non-refoulement absolute. No person is to be returned to torture. We have a global responsibility to protect against torture - to protect those who have been tortured, and to see that those who are torturers are dealt with.

As Professor Aiken mentioned, Canada has been criticized by the UN Human Rights Committee and the UN Committee Against Torture for the position of our government because it has taken various cases where certain circumstances exist, under which Canada could return those who face torture to torture.

CCVT is aware of the tension and difficulty surrounding the issues of criminality and, currently, especially security. We are of the opinion that the best way to deal with criminals and terrorists is to prosecute them.

It is essential that states take action to prosecute offenders, rather than shuffling them off to other countries where they may live in impunity.

CCVT is concerned with addressing the root causes of torture at the global level, and we endorse any action by the government to deal with it - with this question of impunity. However, we are concerned that the issue of inadmissibility and the ineligibility to make refugee claims included in this bill are inappropriate and may harm those who are in most need of protection.

The problems of war crimes and crimes against humanity are complicated ones. Deportation should not act as a substitute for punishment. In some cases, deportation of serious criminals to other countries could result in their impunity. As a global community, we need to ensure that that does not happen.

CCVT welcomes the process of appeal for refugee claims. However, CCVT would encourage the consideration of an oral appeal in cases where credibility is concerned. This is particularly important for victims of torture, because torture survivors suffer particular difficulty in refugee hearings, which can result in severe re-traumatization. There are often issues of memory loss, confusion and fear that give rise to problems of credibility.

In addition, CCVT is concerned about the definition of terrorism. CCVT is naturally opposed to organized violence against civilians. However, it is necessary to resist the temptation to sacrifice basic rights in order to fight this undefined enemy. It is not terrorism that is a threat to democracy in strong countries like Canada, but rather it is our government's reaction to it.

We must not create wide, arbitrary powers that will violate the basic rights of human beings. In that respect, CCVT suggests that terrorism be defined, that we differentiate legitimate struggles for self-determination from terrorism and, in addition, that terrorist organization and membership in a terrorist organization be defined. It is far too arbitrary to cast such a wide net.

In respect of its particular mandate, CCVT reiterates its commitment to non-refoulement of torture survivors, or those who face a risk of torture. CCVT would like to see an incorporation of article 10 of the convention against torture, which now requires that there should be training on torture and the rehabilitation needs of survivors for CIC officers, IRB members, staff in enforcement centres and detention authorities.

The same is true about article 11 of the convention against torture that speaks to minimum standards of interrogation, arrest and detention. We are particularly concerned about enforcement and detention because, on the basis of our experience, detention centres in other countries have been hot-beds of torture. In Canada, the training of officers and facility staff around detention centres is essential.

We also propose special attention to article 12 of the convention against torture in respect of the prompt and impartial investigation of torture by people in positions of authority in Canada. In addition, there is no system for torture survivors to ask for compensation from their torturers in their country of origin.

We are aware that our government is currently grappling with the serious issues of terrorism, counter-terrorism and security. We realize that the government is preoccupied with these issues and that it is attempting to take action. We are aware of the pressure. Again, as Professor Aiken said, we do realize that there is intense pressure on the Senate at this time, in view of what has occurred in the United States.

Ms Caplan, Minister of Citizenship and Immigration, has announced that tougher security measures have already been implemented at our border without waiting for Bill C-11 to pass. With the greatest of respect, those measures are fully available to us under our current legislation, as we know from the very act of their implementation.

We do not require stiffer laws. In fact, our laws are stricter and have a broader application than many American laws.

CCVT is hopeful that Canada will retain its independence and focus its resources appropriately. An overreaching blanket of prohibitions based on suspicion and membership, rather than on evidence of actual terrorist attacks or intent, will deny protection to some of the most vulnerable victims of war and organized violence.

Refugee claimants should not be singled out. It should be noted that many, if not most, refugee claimants in Canada come through the United States. It should also be noted that of the 24,000 or so unexecuted removal orders in Canada, a significant number of those came through the United States, many of which had valid American visitor visas or transit-without-visa ability.

CCVT recognizes that consultation with the United States and other nations is undoubtedly required, but a wholesale adoption of U.S. practices will not necessarily achieve the desired result.

We share a vision for a safe and just society that respects human rights without reservation. It is essential that our laws aid in the identification and punishment of actual torturers and perpetrators of organized violence and terror. Bring these perpetrators out into the open and punish them in accordance with the rule of law. Do not simply turn them back to another country so that they may rise again to cause further anguish.

At the same time, we must show our willingness to protect the survivors to ensure that they are not erroneously re-victimized by Canada and denied the benefits of the democracy that we wish to protect. It is important to protect our democratic institutions, our rights and our freedoms.

The Chairman: Professor Aiken, I have a question about your recommendation 6. Do you have page 14 of your brief?

In the top paragraph, you talk about a case of a Kurdish refugee who initiated a complaint and then ultimately the department rejected the application with no reference to the SIRC report. Is that where that case ended or is it still ongoing?

Ms Aiken: There are actually three cases that are currently languishing. In all three of the cases, the Security Intelligence Review Committee recommended that the three individuals be processed for permanent residence. In other words, they found no basis for the advice rendered by CSIS in their cases.

The Chairman: That is what SIRC found.

Ms Aiken: That is what SIRC found. In one case, the minister has agreed to make a recommendation that the individual can remain in Canada and that it is not against the national interest to make that ruling. However, he remains to receive his permanent residence.

In the two other cases, they have not been landed and have been informed that they will not be landed from what I understand. Their cases are in various stages of challenge at the moment.

Certainly that draws out for me the very important work that the Security Intelligence Review Committee does.

Now, these three cases were exceptional because the complainants initiated them. Bill C-11 does not take away that right. Anyone could still complain to the Security Intelligence Review Committee, just as these three individuals did here. The problem is that very few people have the resources. The lawyers were willing to donate some 50 hours or more of their time in order to initiate a voluntary process.

It is a very long and difficult process to pursue for a refugee. That was exceptional. How many cases will fall through the cracks, if indeed the mandate of SIRC over permanent residents is eliminated?

The Chairman: If it were not eliminated, who would pay the lawyers on these appeals?

Ms Aiken: It varies across the country. In some provinces, people who are subject to proceedings before the Security Intelligence Review committee have access to legal aid on an exceptional basis.

The Chairman: Some provinces provide access; some do not.

Ms Aiken: That is correct, in some provinces they get nothing at all.

The Chairman: You raised a funding question that sort of threw me for a minute. You talked about how difficult it was for people to proceed without money. I am trying to understand is why the situation vis-à-vis the money aspect is different if it is a mandatory review versus an optional review.

Ms Aiken: That is really a red herring.

The Chairman: You raised it. That is the reason I fell for it.

Ms Aiken: I mention it as an aside. It is not the Senate's purview to worry about by provincial legal aid. I would point out that in the case of a complaint, there is no obligation on the part of the federal government to implement the recommendations of the Security Intelligence Review Committee. That is a concern. One could go through all these days of hearings and all this very serious investigation. At the end of the day, with respect to a complaint lodged by a complainant, there is no obligation or responsibility on the part of the government to implement the report that SIRC has provided.

The Chairman: I am looking specifically at the wording of your recommendation 6. My question is, could what you want done be accomplished by giving the jurisdiction to SIRC with respect to permanent residents? Could it be done by regulation?

Ms Aiken: That is a question the minister would have to answer.

The Chairman: You are the lawyer. He is not.

Ms Aiken: The minister has indicated that she is not prepared to adopt that measure.

The Chairman: That was not my question. My question is "Could be done?" not, "Would the government do it?"

Ms Aiken: My initial reaction is that that should be in the legislation in the way that it is now. It needs to be in the legislation given that it is a legal recourse.

The Chairman: You would be really good at press conferences because you did not answer that. My question is a simple one.

Ms Aiken: I think that it has to be in the legislation. I am not 100 per cent certain if these new regulations that the minister is proposing to accompany this bill may perhaps take on additional kinds of mandate. However, from my limited experience, I would suggest that the place that it can go and should go would be the bill itself.

Senator Di Nino: I was taken aback when you made a comment that this committee is under a lot of pressure in the wake of September 11 to pass this piece of legislation. Where did you get that information?

Ms Aiken: I am reflecting comments widely cited in the national media - both print and television media - about an interest in passing the bill to ensure that the government has the tools necessary on the one hand, and others clamouring for more extensive scrutiny and reopening the discussions with a view to making measures more restrictive. I am not reflecting my own views, obviously. I wanted to acknowledge the pressure in the public domain, which is obviously a context to which this committee must be sensitive.

Senator Di Nino: Thank you for that.

We have heard witnesses in the last couple of days tell us that it is very unlikely that this bill will see the light of day before the spring of next year because of the regulation and other issues. As a matter of fact, I believe the bar association indicated that they had been informed that July 1, 2002 is a date that the government projected to proclaim or implement the provisions of this bill.

I was surprised at the commentary.

My question to you is directly related to that. Does the government need this bill, in your opinion, to do what it has been suggesting needs to be done, at least on a public basis by the minister over the last week or 10 days?

Ms Aiken: Make no mistake; there are a number of positive elements to this bill, which Ms Elliott amply highlighted.

With regard to the specific issue of national security, which is what I really addressed my remarks to today, it is absolutely not necessary. Every measure that is needed to be taken by the Canadian government can be done under the existing legislative scheme, the existing policies and regulations. We have seen evidence of that with the stepped-up security screening at ports of entry that has been implemented in the past week.

We do not need more legal tools. We may need to address issues of implementation and resource allocation.

Senator Di Nino: In your recommendation no. 6, the note refers to the use of the term "foreign nationals as unfortunate." That is somewhat of a disclaimer. Would you like to comment on that? Do you have a problem with that?

Ms Aiken: The standing committee did move to make a change so that now not everyone is called a "foreign national." When the bill was first introduced, anyone who was a non-citizen was termed a foreign national under the bill. We had concerns about that because it failed to recognize the special status achieved by permanent residents with long ties to this country. There has been a change since then.

Now permanent residents are called permanent residents. In fact, that is an improvement since the time that this paper was first drafted. There is still perpetuation of the use of the term for non-permanent residents.

Senator Di Nino: I would like clarification regarding your comment about the current Immigration Act going too far on security issues. Could you explain that "too far" statement?

Ms Aiken: That is a difficult question to answer briefly given the five-minute introduction time we were allotted. Let me try.

I spent a great deal of this brief trying to underscore concerns with the lack of definitional and discriminate content for the terms "security of Canada," "membership" and "terrorism." I have tried to demonstrate the extent to which those very categories have been subject to manipulation at the expense of innocent victims. That is the concern.

I would argue that there is absolutely no reason for the use of the word "terrorism" in any Canadian law. We should be referring to - as the UN itself refers - "international crimes." Those crimes are detailed in 12 UN treaties ranging from the bombing of innocent civilians to the financing of international crimes to the hijacking, et cetera.

Those are crimes that today are enunciated in our Criminal Code. Those are crimes for which people can be prosecuted in Canada. I might note that accomplices to those acts are also subject to criminal prosecution. Namely, people who raise funds in support and people who aid and abet crimes are subject to the jurisdiction of our Criminal Code.

In my view, we do not need an omnibus term like "terrorism," which lawyer after lawyer, scholar after scholar have cited as being an absolutely ill-equipped term to address the genuine threat posed by international crime. It is a term far too subject to manipulation, far too likely to target the wrong people. The Kurdish refugees whom I cited in my brief are a perfect example of that.

Senator Prud'homme: Ms Elliott, I am impressed by your testimony. In your view, we do not need this bill.

I have been in Parliament for 38 years. I have been around the world, in the most difficult places and at many international gatherings. I have always agonized, and will to the end of my life, in search of a definition of terrorism so that we do not try to link any freedom fighters or otherwise under the big umbrella of terrorism. Could you help me out in my reflection?

Ms Elliott: In fact, the definition of terrorism has eluded all of the great minds of the world. That is precisely reason why a comprehensive international instrument was unable to be developed in the international community. As Professor Aiken has mentioned, the word "terrorism" is a loaded term because it depends on who uses it and in what context. Perhaps it is best to focus on the deeds rather than the label, when we are identifying and trying to cope with this threat or this multitude of threats.

I am afraid that I cannot help you with a short and fast definition of terrorism, because there is not one. I specifically alluded to the issue of self-determination, freedom struggles and so on, as has the international community. It always comes back to the point at which we are at this moment, which is, member states will not agree.

Senator Prud'homme: In your view, the laws that we have at the moment are sufficient, if they were to be applied?

Ms Elliott: With respect to the issue of security, yes. There are many other things in the bill, however, that as I mentioned I did support and that I would like to see implemented in the future.

The Chairman: Both of you have effectively said that current laws are adequate to deal with security issues. You have both essentially said that. In fairness, that strikes me as a judgment as opposed to a definitive legal opinion. It is a judgment based on what you think is required to meet security concerns as opposed to a detailed analysis of what security concerns are. Indeed, what is required to meet security concerns is one of those things that may evolve overtime. People may have a different view of it now than they had at the beginning of September. Am I right?

Ms Aiken: We would both agree the changing nature of security threats internationally requires research, study, and co-ordinated effort - both domestically and internationally. I am calling attention to the fact that there is absolutely no evidence that it has been a failure of law. There is a danger of rushing headlong into new legal instruments because of the very grave consequences to which that kind of reform gives rise.

The best that we could do as a country is take a sober second pause on these issues. We should make sure that before we jump off the bridge, the response that we take as a government is a reasonable one, and one that is designed to be effective.

It is not speculative when I suggest that we do not need new legal tools. It draws attention to safeguarding genuine security as a question of implementation. It is a matter that can be pursued within the existing legal framework.

We are not suggesting there may not be need for review. I did point out that in my view, the place to start is how CSIS is currently doing its work. I have concerns, as a long-time immigration and refugee lawyer, that CSIS is simply targeting the wrong people. In saying that, I underscore that CSIS does not make decisions with regard to immigration security screening; they only provide advice. However, that advice plays a critical and influential role in the outcome of immigration procedures. Given that that is the case, it is very important that we undertake critical review.

Senator Grafstein: I also am not a member of the committee. Therefore, if you want to cut me off at any time, I will defer to other members of the committee. As you know I have spoken at second reading on this. I do have some questions. I will try to be brief.

There is a concern in Canada the public attitude towards refugees has been smudged by an administration process that does not remove those refugees whose claims have been disallowed. We have been told that the number is hard to find but that there are about 27,000 people roaming in the country whose claims have been disallowed. Due process has been done and there has been no statutory means of ensuring that they are tracked and removed from the country, which smudges the entire process. I would like the witnesses' thoughts on that.

Second, because of the time frames of information, it takes one officer to agree to a claim of status, and then takes three to disallow it. Is there anything wrong with increasing the efficiency and still have due process if there were one officer to allow and one officer to disallow?

Third, I made a speech regarding this last week. You could find it on the Senate record. A former officer told me that it takes 72 hours under the current practice - and this has not been changed by this bill - to come to a conclusion as to whether a person is a security or criminal threat. It is almost impossible to do that within 72 hours.

One of the reasons is that there is not an interface between the security and RCMP computers and the immigration computers. In fact, many of the decisions are flawed for lack of information. Those are my three questions. If there were a renovation on these three points, would you object?

Ms Elliott: I have brief comments, and I believe that Professor Aiken has more significant comments.

On the issue of the problem of removal of refused refugee claimants and the fact that there may be, in Canada, a great number of claimants whose claims have been found not to be genuine or not to have passed the convention refugee definition test that is imposed by our panel members, there are certainly legal means to remove failed refugee claimants from Canada. To the current legislation, a failed refugee claimant has a right to apply for leave for judicial review and also has the right to be considered under a post-claim review mechanism.

After these two mechanisms find that the person is not at risk, or if one mechanism finds that there are no grounds for overturning the decision of the panel and causing a re-determination to be made, and the other mechanism finds that there are no grounds to find that there is a substantial risk, the person becomes removable. That means that that person is now under an active deportation order. The problem arises in logistics and the means of the department to actually remove people.

If one speaks to the officers out at the Toronto Enforcement Centre, for example, there is generally a sense of a lack of organization and funding. I do not know that those are necessarily things that need to be dealt with in the legislation, but they need to be dealt with at the policy and funding level.

Ms Aiken: I would just add that it is important not to single out the refugee process. Canada has a multifaceted immigration program. Some 570,000 people came to Canada last year as visitors. There is absolutely no evidence to suggest that the risk is any different posed by immigrants or refugees or business people and entrepreneurs coming to Canada. To the extent that we are concerned about security, we need to be concerned in a global, or holistic and consistent fashion. The reason my remarks were so focussed on the refugee system was precisely because the public discourse right now has singled that aspect out of the system, I think without evidence or any reason. While I would certainly agree that there are implementation issues to address, I do not agree that we should single out the end product of the refugee system.

If there are 27,000 people waiting for removal, it is because this government failed to implement the recommendations of Roger Tassé's report in 1996, which was wide-ranging and contained a number of good recommendations to address the problems that immigration was facing with respect to enforcement.

Once again, it is a matter of how we do it, as opposed to the legal framework.

With regard to the one-kick-at-the-can issue, why do we have such a multi-layered process? I would suggest that even now, Canadian citizens have more rights to appeal a simple parking ticket than any refugee claimant, or non-citizen, has in this country. We live under rule of law in a context where due process is respected. Now, the fact of the matter is that people still have, in this country, far fewer rights than in any other system offered by the government - not just parking tickets but tax rulings, employment insurance decisions, et cetera.

Many people have the right to appeal all the way up to the Supreme Court of Canada. When we look at the stakes involved for refugees - people whose very lives may be at risk if we get it wrong - the danger of fast-track procedures that fail to afford sufficient oversight and sufficient sober second thought and review is that there is no chance to correct our mistakes. There is no chance to give a person back his or her life.

In reference to the interface question, you were asking about the eligibility interviews that currently take 72 hours and the fact that we simply cannot finish security clearances in that time. The solution to that indeed may be administrative. It may be that it requires greater collaboration between the various departments of our government as well as the departments of governments in other countries. Again, it is an issue of implementation.

I would note that, just because a security screening cannot be completed in 72 hours, it does not mean that it is discontinued. Where there are grounds to actually ensure that it be continued, eligibility decisions are left pending and people wait, sometimes for as long as one year, before they are given a final decision that they are eligible to proceed with their claim. There is no reason that security screenings cannot continue simultaneously.

Senator Roche: Professor Aiken, it raised concerns for me when you said that Canada would be complicit in the torture of deportees, once we send them back. I would like you to take me through that again, briefly. Did I hear you correctly? Did you say that you thought that Canada should have a system whereby we tried, or caused to be tried, deportees facing charges in other countries? You mentioned that the international criminal court is not yet in existence and probably will not be for some time, and so the onus will be on Canada itself.

How do you see this - the war crimes unit and the justice department? How would we carry out such trials and would it actually be in the Canadian interest to do that?

Ms Aiken: Let me clarify. I am not suggesting that every deportee should be allowed to remain in Canada. I am suggesting that in the cases where there is evidence that someone is at risk of torture in their country of origin if they are returned, Canada's obligation not to return them is absolute. It is an obligation that has been reaffirmed and reiterated, not just by the United Nations, but also by the European Court of Human Rights. Most recently, the United Nations' High Commissioner for Refugees, whose office is in the process of global consultations over the past year, firmly reiterated the principle that the right not to be returned to torture is an absolute right.

Thus, we are not talking about all 27,000 people who have been refused by whatever recourse they have had legally here in Canada. We are talking about cases where there is a documented risk of torture. Those cases are far fewer in number. In fact, the size of the group should not justify a lack of concern on our part.

What should we do about these people? What should we do, for example, about Mr. Suresh, whose case is currently pending before the Supreme Court of Canada?

Let us say that there was some kind of evidence that he was an accomplice to political violence - and our own courts have acknowledged there is not - under our Criminal Code, we have an obligation to prosecute him. The acts in question were acts that actually took place here in Canada. We are just talking about the routine implementation of our criminal justice system.

Ultimately, when the international criminal court is adopted, we will have the choice to prosecute or extradite.

Senator Roche: I was not referring to crimes committed on our soil. Obviously, Canadian jurisdiction would prevail. I was talking about a deportee being sent back to face charges in the country of origin. What is the responsibility of Canada to conduct a trial in those circumstances?

Ms Aiken: When someone faces charges in their country of origin, and there is a risk of torture as a result of the criminal process in their country, we also have jurisdiction to prosecute. The War Crimes and Crimes Against Humanity amendments of last year give us not only the right, but also the obligation to proceed.

Senator Roche: Do we do this?

Ms Aiken: We have not done it consistently. I am highlighting that as a current flaw in the system. If we are serious about promoting the goals of international justice we must be serious about doing our part to end impunity. That means not sending people off to other people's backyards, but taking action right here in Canada.

The Chairman: I thank the two of you for coming.

Honourable senators, our next witness is Father Jack Costello, the Director of the Jesuit Centre for Social Faith and Justice, William Janzen and Nathaniel Bimba, from the Mennonite Committee of Canada and Tom Clark, the former co-ordinator of the Inter-church Committee for Refugees.

I thank the next panel for coming. I will ask Father Costello to begin. The witnesses have been asked to take five-minutes to summarize their presentations, not to read us the detailed brief, which we are quite capable of reading. We would like to maximize the time we have for questions.

Father Jack Costello, Director, Jesuit Centre for Social Faith and Justice: Mr. Chairman, one small request is that Mr. Clark be allowed, after a certain part of my presentation, to present. We would restrict ourselves as close as possible to the time allotted to us.

The Chairman: That is fine.

Father Costello: We thank the members of the Standing Senate Committee on Social Affairs, Science and Technology for hearing us today. Our presentation includes portions of the recent statement of World Council of Churches' Global Ecumenical Network on Uprooted People that was presented and formulated only 10 days ago.

It also includes our shared work at the Inter-Church Committee for Refugees, which committee appeared before the parliamentary hearing committee on this bill a few months ago.

The brief we have provided is given in three parts. There will be a Christian perspective on our current situation and Bill C-11, which I will give, and I ask only that you understand the adjective Christian as applying to the simple fact that I can represent the Christian community in a way that I am not authorized to represent any other community.

Second, there will be a reflection on the work of this committee on matters of human rights. Finally, we will give our specific observations on five areas seeking improvements in Bill C-11.

[Translation]

We regret not to be able to provide a French translation of this presentation. Having worked on this brief until last night, we did not have enough time to get a professional translation made.

[English]

I will represent the reflection on the current situation in a Christian perspective from the three sources I mentioned. After many years of involvement with and on behalf of refugees, we can testify that work with uprooted people has become more difficult in recent years. The pressures for flight and for migration are increasing as wars drag on and as the inequalities resulting from globalization compel people to leave their lands. Governments in all regions are making it more difficult, not less, for desperate people to find safety.

At a time of uncertainty and fear, we express our particular concern about the implications of the newly declared campaign on terrorism for refugees and asylum seekers. While we condemn terrorism and understand that governments have a responsibility to protect their people, these efforts should not penalize people who are forced by circumstances beyond their control to seek protection and security in other countries.

We are alarmed that international reactions to the events of September 11 and the strategies undertaken by the United States of America could create a new humanitarian emergency, displace additional large numbers of people, intensify regional conflicts, particularly between religious groups, put minority churches in increased danger, destabilize governments and create economic disruptions on a global scale. We are also alarmed that new legislation intended by governments to curb entry of terrorists may create new barriers for people fleeing war and persecution preventing them from seeking asylum.

Profiling of certain nationalities or ethnic religious groups by immigration authorities may increase discriminatory procedures and attitudes against many who are in desperate need.

I select only one more of the remaining points. Racism, xenophobia, and criminalization of migrants, which have already reached alarming levels in many regions, could become widespread.

In this context of fear and uncertainty, we would like to affirm the importance of upholding and strengthening existing human rights instruments, including the 1951 Convention on Refugees, the International Convention on the Rights of Migrant Workers and Their Families, and the Guiding Principles on Internal Displacement. The human rights of all people who cross borders must be upheld.

We also affirm the urgent need to address the causes of conflict and uprooting. We hope that recent events will move the international community to address seriously the root causes that have uprooted millions of people and which lead so many people to turn to violence:

We also affirm the need to address the global inequalities that are being intensified by globalization in order to enable people to live lives of security and dignity in their own communities.

We assure the Senate committee that churches will continue to stand by the side of uprooted people, to accompany them in exile, to struggle to address the causes of uprooting, to advocate with them for their rights, and to provide assistance and care for them.

Finally, we affirm that refugees, migrants and internally displaced people have much to contribute to Canada and other host societies. As the New Testament tells us, in a letter to the Hebrews: Let mutual love continue, do not neglect to show hospitality to strangers, for by doing that, some have entertained angels without knowing it.

Mr. Tom Clark, former Co-ordinator, Inter-Church Committee for Refugees: Honourable senators, given that general context and the fact that immigration work goes beyond an act into a series of activities as Father Costello's remarks point out, I might ask you to come back to the Immigration Act. Two things have changed since this spring when we testified before the Commons.

The first is self-evident. There is public furore about the issue of terrorism.

However, you may be less aware of the second, which is the intensive ongoing development of international standards relating to refugees under the auspices of the High Commissioner for Human Rights. I will touch on both of those because they are relevant. Otherwise, our aim here is to compare what we see as the highlights from the non-governmental testimony this spring and the bill as you received it.

Terrorism is not new for the Senate. We looked at your relatively recent report and noted that you did not make any huge recommendations for the Immigration Act. We think that should remain the case.

The concern, however, must not be allowed to swamp rights and freedoms. After all, what are we protecting? I turn to the clear French text of our national anthem: It is not only "nos foyers" - our homes - it is "nos droits" - our rights. That is what the English text is standing on guard for. We want particularly to speak to our rights. That is an important part of what our national anthem says we are protecting.

In line with that, therefore, we are insisting that Bill C-11 aims to preserve a rule of law for foreigners' rights and freedoms, subject to legitimate, necessary and proportionate limits, of course, and equal treatment for these persons to the extent possible, whatever their status in our society.

Our country has primary responsibility for human rights for every one in its territory and under its jurisdiction. Promoting these human rights remains an important part of pushing the world toward peace and security, as Canada has recognized.

When it comes to the rights for refugees and other non-citizens, there is a puzzling resistance in Canada and among Canada's allies in the developed countries. In Canada, we have seen examples that have turned refugees from being the automatic heroes to being associated with just about every horrible event that has occurred.

When I was before you in 1987 or 1988, the context then was the hordes that were reported from the United States. "Abuse" was rampant and that was the watchword. That was the drive for the legislative change that was linked to refugees within the Immigration Act - a danger from serious criminals. If you remember, we had the "Just Desserts murder" in Toronto, and you will hear more from others about that one.

Most recently, we had the prolonged public anger over the media spectacle when boats arrived off the B.C. coast. Now, efforts in the public domain are being made to link refugees to terrorism. Happily, Professor Aiken has pointed out that the connection is more a desire than an established fact.

My concern is that the impact of all of this has been a continual erosion of safeguards for non-citizens, in general, and for refugees, in particular.

The act at this point has the flexibility, without these changes - and certainly the changes as far as I am concerned do not interrupt that - for government action. If they want to go after someone, they can do it. My views are shaped by the people whom I have seen. They are people who had experienced mistakes. They were either mistakes in being recognized as a refugee, or they were mistakes in being identified as some kind of threat. Professor Aiken spoke to that also.

This proposed legislation needs - at a time when the public is again in a furore and out to find terrorists - assurances that the safeguards are in place, so that while the officials are doing what they want, those who should not be targeted are note. That is the thrust of my remarks.

On the other side of the coin, we have listed in the material, the evolving work under the auspices of the High Commissioner, with governments and experts developing the detailed application of principles that exclude people from refugee status or end refugee status. Those are being, right now, intensively clarified internationally.

A year ago with the Bill C-31, that was not the case. Just this spring, this book, a whole volume of the Journal of Refugee Law, is concerned with exclusion from refugee status. It is not just that, but it is also articles commissioned by the High Commissioner for Refugees on these topics being debated by government. You get a real sense that international standards are now evolving.

Our view is that Convention refugee is an international status and so international standards should apply. Our law applies after that. When they are in Canada and they have an international status, what happens to them is a matter for our law. Professor Aiken spoke eloquently to that. Getting the status is an international standard, and we will point to that.

The report on the situation of human rights of asylum seekers within the Canadian Refugee Status Determination system - a gloriously international title - by the Inter-American Commission on Human Rights came out in early 2000. It received practically no public attention. It made some specific recommendations with respect to Canada's human rights obligations and our law. We have raised some of the concerns of the commission, notably, the non-deportation except in exceptional circumstances of long-term resident non-citizens with family ties.

Father Costello: We have brief recommendations that can be read. I will read our point that relates to the testimony of Professor Aiken and Ms Elliott. The first recommendation that we would make in respect of Bill C-11 is that the inadmissibility criteria relating to terrorism and international crime would be replaced with the criteria that appear in the CSIS Act. Take the four-part section out of the CSIS Act under the definition "threats to the security of Canada," and put it in this bill. We would then have something that prosecutor, defender and charged can relate to in a public forum.

Our second point would be a repetition of what was not only presented but emphasized by Professor Aiken: Give the Security Intelligence Review Committee, SIRC, the responsibility of determining who is or who is not a security risk, as is the case for everyone else.

Also, we would like the eligibility examination of refugee claimants by border officials to be the subject of a report, rather than a determination, as is the case for the admissibility examination of other non-citizens.

I will turn over to Mr. Clark for the reading of the last two points.

Mr. Clark: One point is to improve the refugee appeal. We are glad there is an appeal, but it needs to be received and to consider new evidence.

The second point is that persons who are not recognized as refugees, however that happens - whether it is by the refugee board or by the minister making the decision - should have access to that body which is supposedly the expertise to perform the review.

The third point is that non-long-term residents should not be deported for crime except in exceptional circumstances. That is through the immigration appeal division.

The fourth point is derived from the Inter-American Commission on Human Rights that some mechanism needs to be found - and we suggest one possibility - to allow our courts to more easily intervene to protect international rights when they are at risk in the review process.

Mr. William Janzen, Mennonite Central Committee Canada: Honourable senators, we thank the committee for your willingness to hear us. Our organization has a staff person especially for refugee law issues, but he was called to the UNHCR meetings in Geneva a few days ago. Mr. Bimba and I will do our best to convey our concerns.

There are many people in the 600 Mennonite churches across Canada who would want us to begin with a word of gratitude to Canada and to the generations of men and women who have made its laws. After World War I, there were over 20,000 Mennonite people from the war-torn countries of Europe who were admitted to Canada. After World War II there were another 7,000 from that area that were again admitted. The sense of gratitude from those people remains strong.

There has been strong support in our churches for continuing with refugee work. In 1979, when the boat people crisis was strong in the news, we were the first national organization to sign a master agreement for sponsoring refugees. We are still busy with that.

My colleague, Mr. Bimba, who came from Africa in 1997, now works with the Mennonite Centre for Newcomers in Edmonton, one of several centres that we sponsor. It is a large centre with about 80 staff people. He will talk more about his own story and what needs to be done in terms of the law.

Mr. Nathaniel Bimba, Mennonite Central Committee Canada: I would like to thank the honourable senators for the opportunity to present our viewpoint.

We want to see something done in the bill with regard to the overseas processing of refugees. It should be done more strongly and effectively.

I went through that process. I know the experiences and horrors I went through. I would like to mention a few things here that I think would be of help to that process so that refugees and people who need the protection provided by the Government of Canada can benefit from that process.

As an agency, the Mennonite Central Committee helped to lobby and draw the attention of the Government of Canada to the humanitarian crisis that occurred in Sierra Leone. Through that process, the government provided a special pilot project that had helped about 600 refugees who have experienced the most atrocious evil that this century has seen.

These people will soon begin to come to Canada. I would like to thank the Government of Canada for its work in regard to the overseas process in that light.

However, we still have a few recommendations to make so that the process can be improved.

I would like to illustrate our point here by giving you two scenarios. One is the experience that I had when I applied as a refugee in Zimbabwe.

Because I did not have a significant amount of information on what the process was, my application was turned down the first time I applied. Knowing the experience that I had gone through and having lived as a refugee for a series of years, I thought something was wrong with process. I decided to do research to find out what I did not say or how I should say it so that I could be heard as a refugee. I did some research and came away with the understanding of what expected from me.

We would want to see information overseas that would help refugees who want to come to this country. This would help those who need protection to be able to do the right thing. There is very little information and very little manpower in the Canadian embassy to help refugees. Refugees do not know what to do and where to turn for information. We want to see that the process is improved and is well equipped to help refugees.

I applied in 1991, and I was turned down. After I reviewed that process and provided new information, my application was then accepted. In 1993, I reapplied for refugee settlement. I was then accepted and interviewed in 1995. I came to Canada in 1997. That is a brief summary of what happened.

I was always left without a significant amount of information. It was more a trial and error type of work I was doing. There was one person who was covering all the countries of southern Africa who would come to this place once a year. I sat down with my family, waiting for this person to show up before we could get information about what we needed to do next. Information was not flowing very well. Because of that, we did not know what to do and our lives were sort of in limbo. However, the process did work for me.

My other example is a gentleman in Sudan who applied to one of our churches there. This man is involved with the Mennonite Central Committee church in Sudan. He is a very good man. However, because of his association with the Sudan People's Liberation Movement, he was rejected. He is now separated from his son and his common-law spouse. His rejection had been based on his association with the Sudan People's Liberation Army, SPLA, which was considered as a terrorist organization in the refusal. We know that the foreign ministry has some connection with the SPLA. They have been talking to bring peace.

We are concerned about these kinds of situations. We want to see quicker determinations and a fairer system in the overseas process.

Mr. Janzen: I would just re-emphasize what my colleague has said. We agree with what our friends here have added on many other points. However, we wish to emphasize that the overseas processing system is considerably weaker in a number of ways than the processing system for those who come to Canada. If the overseas processing system were strengthened, many people would be helped and some of the pressure on the inland claimant process would be eased.

Senator Beaudoin: The Canadian Bar brought to our attention that the right to appeal to the immigration appeal division - and I think it applies also to the right to appeal to refugee appeal division - is too restricted in their opinion. They referred to section 64 in particular and to the Charter of Rights and Freedoms, section 15, section 7 and section 12.

You are talking about the refugee appeal division and the immigration appeal division. Do you have the same opinion or do you generally agree with that?

Mr. Janzen: You are directing the question to us?

Senator Beaudoin: To all those who have spoken.

Mr. Bimba: We are alluding to what we would like to see. For example, if a person applied overseas for a resettlement to come to Canada, he does not have access to an appeal system. The decision of visa officer is almost final, except that the refugee could appeal after three months.

However, by the time the information gets to Canada, the three months have expired. The refugee is left out of the law as far as the law is concerned.

We would like to see in the refugee protection some kind of mechanism that would help refugees make an appeal if they had new information to provide. As I said earlier, sometimes the refugee cannot articulate his being a refugee in terms of the definition of the Geneva Convention. Refugees do not have the capacity to do so.

Refugees do not have a lawyer or other sources advice out there overseas to help them express their need for protection. There needs to be a mechanism within Bill C-11 that will allow refugees access to protection as you do in Canada.

Mr. Clark: I do not know exactly to what you are referring, however, I can see section 64. It says that there cannot be an appeal if the person is found inadmissible on grounds of security violating human or international rights, serious criminality or organized criminality.

We did speak to that in two ways. We basically suggested that if the person was to be found as a violator of human rights, that determination would be made by SIRC.

With respect to the serious criminality, the international case law now says that family rights and children's rights, et cetera, need to be taken into account along with the term of residence and so on, as used to be the case.

We would say that there should be an appeal in the case of serious criminality because the evidence that was given to Canada by the Inter-American Commission on Human Rights was that only in exceptional circumstances should you have a person going if there were family connections and so on. This is the place in our law where that could be addressed.

We were specifically saying that you should be heard and let the appeal division make its decision on the facts of the case.

Senator Grafstein: Mr Lang, of the RCMP, said during his appearance that the Australians have a policy in place whereby if a refugee comes to their shore without the appropriate documentation or 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 are in question, can be detained and deported. If they are given the green light to go on the street, God knows what would happen then.

That is what Mr. Lang, on behalf of the RCMP, said yesterday. What is your reaction to that?

Mr. Costello: It is clear in international law that detention is not an authorized or justified action simply for lack of thoroughly proper documentation. People who are not sympathetic to refugees still understand that many people arrive on our shores or on the shores of other countries without proper documentation simply because of the circumstances under which they had to leave their countries. They must leave under duress, under risk, not able to identify themselves publicly or not even able to find an office that could provide such documents.

Thoroughly legitimate refugee claimants can come without adequate documentation. International law does not support detention as an automatic action in that case.

It may be that our security would at least appear to be preserved at a more intense level by behaving in that fashion. However, in so doing we would have to break international law. We would question our right to do so.

Senator Grafstein: My other question is a brief one. I asked this of the other witnesses. When an application is made, one arbitration is sufficient. When someone's claim is disallowed, three are necessary. Again, officers within the process have written to me and said that this is unfair to appropriate refugees and, therefore, smudges the system for all. How do you react to that criticism?

Mr. Costello: I do not understand the "three" part. They ordinarily appear before two members of the IRB. What you said about the first aspect of the judgment I understand to be correct. Did he detail what he meant by "three" being needed? On the grounds of not thoroughly understanding the question, I cannot respond.

Mr. Clark: Let me shed a bit of light on that. If the consequence of the decision is taking away or interfering seriously with someone's rights, then obviously you will need an appropriate due process. That may or may not require more people. That is something that we must live with.

Obviously if there are ways of minimizing or streamlining, we should go for it. However, that is the underlying safeguarding the rights principle. If you are granting a simple benefit and there is no great consequence, then one person can simply ensure that the decision is made fairly. That is what I think is at issue.

Senator Roche: I welcome the witnesses. In the presentation of Mr. Costello and in Mr. Clark's brief, they cited alarm that this bill is intended to curb the entry of terrorists. They noted concern that it may create new barriers for people caught in between war and persecution and prevent them from seeking asylum.

Where exactly in this bill do you draw the conclusion that because steps are being taken to ensure terrorists do not sneak in under the rubric of immigration or refugees, that new barriers for people fleeing persecution are actually being created bill? Does the fact that there may be criteria that are more explicitly followed create a barrier? If so, is this not justifiable to give the assurance to the Canadian people that the net is tight against terrorists? Are we really punishing the innocent in this bill? That is a source of concern to me.

Mr. Clark: I was suggesting that if you have a situation where there is flexibility and scope for action on the point of view of officials, and you have a strong public mood of concern, then that side will move ahead. If that is going on when you have weak safeguards in the legislation, for example, as Professor Aiken said, going after the wrong people, or deciding that the person is not a refugee to make doubly sure that you do not let the wrong in, then we need to be very careful that the safeguards are added in the legislation in times of like this. That was all.

Mr. Costello: The text at this point, Senator Roche is taken from the statement of the World Council of Church's Committee for uprooted peoples. When they were speaking of new legislation intended by governments, they were not talking about Canada; they were referring in their conversation to Australia.

Much of what I was representing refers to a world context - a context of sensibility among those who are working in 21 different countries. They are the people who signed the statement with refugees. I would say I did not mean to disguise it as our new legislation, Bill C-11 in Canada. This is from a more global statement and it referred to a country outside Canada.

Senator Roche: However, we are here to discuss Bill C-11. I have to apply my own conscience to Bill C-11. I have some difficulty in determining precisely where Bill C-11 will create a barrier for legitimate refugees - people whom we have a duty to take in certain numbers, and whom it is in our economic interests to take in.

I am asking for some help. Show me where in Bill C-11 it indicates that immigrants and refugees will be penalized to the extent that they cannot get into this country.

Mr. Costello: My short response would be that I do not think you will find it in Bill C-11, as far as I am familiar with the bill.

However, we will find that there is something in one of the points that I did not read out in an effort to shorten my presentation: "enhanced intergovernmental cooperation to combat terrorism and sharing of sensitive immigration information could put asylum seekers at greater, not lesser, risk." I would suggest that the effort to harmonize policies and practices, internationally, could have the effect of lowering the threshold of protection in the name of heightening the threshold of security. It is to the degree that Canada might, in its practices, be drawn into that kind of harmonization and that kind of lowering of protection, if it is possible. This is simply a flag; it is not addressing Bill C-11, as far as I can tell, in any particularity.

Senator Roche: Mr. Chairman, is the committee able to find a way to express that concern when we report on the bill?

The Chairman: I believe we can.

Senator Grafstein: I am trying to read the transcript of the evidence last night by Mr. Alcock. We are trying to focus on Senator Roche's point, which I think all senators share, about how to develop a system that really prevents - based on the evidence we have - terrorists from entering freely into this country without in any way, shape or form impeding the flow of immigrants so necessary for the growth of this country? That is the exquisite problem we are trying to address. In his testimony yesterday, Mr. Alcock said that they would have stopped the millennium bomber if there had been up-front screening, which this bill provides.

Does the up-front screening not only weed out someone like the millennium bomber, but also impede appropriate refugee and immigrant flows?

Senator Roche: We now have up-front screening without the bill.

Senator Grafstein: He is suggesting that this bill provides better up-front screening. I cannot put my fingerer on it, but that was the testimony yesterday.

The Chairman: Both statements are correct. It is a fact that there is up-front screening. It is a fact that the minister has said - and I think officials effectively confirmed - that up-front screening has improved relatively recently, not just since September 11, but certainly since September 11.

It is also clear that, to implement the bill in its current form, you would have to have more resources put into up-front screening and into off-shore screening, of the kind that Mr. Bimba spoke about.

Senator LeBreton: The testimony clearly was that you did not need this bill to do that.

The Chairman: That is correct. The testimony was clear, and Mr. Bimba went through it with us. By the way, Mr. Bimba, I am delighted that you came because you are the first witness to appear before us who has actually gone through the process, as opposed to lawyers and others who have spoken about the process. Having firsthand experience, I am truly delighted that you came.

Mr. Bimba: I would like to make another comment that may not be relevant to Bill C-11, but I want this to be in the consciences of the honourable senators. We are all concerned about the events of September 11. However, I want honourable senators to realize that the person who is even more afraid of the terror that was waged on the world on September 11, is the refugee who fled the terror and who lives here now in safety. We are all concerned that having fled terror, terror has followed us. Please keep that in mind as you consider Bill C-11.

The Chairman: That is a profound statement. I thank all of you for coming. May I say, again, Mr. Bimba, how delighted we are to have you come before us today.

Senators, our next panel consists of Mr. John Fisher, Executive Director, Equality for Gays and Lesbians Everywhere; Ms Anuradha Bose, Executive Director, National Organization of Immigrant and Visible Minority Women of Canada; and Ms Erin Lee-Todd, Vice-President, Anti-Racism and Anti- Oppression. Welcome to our committee.

May I ask that you keep your presentations to five or six-minutes and do not read long, detailed briefs, so that we may maximize the time for questions? Mr. Fisher, please proceed.

Mr. John Fisher: Executive Director, Equality for Gays and Lesbians Everywhere: EGALE advances justice for lesbians, gays, bisexuals and transgender people across Canada. We are pleased to have the opportunity to present on this bill.

There are three issues on which EGALE will be touching today. The first is the inclusion of same-sex couples within the family class; the second is refugee issues as they pertain to lesbians, gays bisexuals and transgender people; and the third is the question of medical and admissibility, particularly as it pertains to people who are HIV positive.

We recognize, of course, that there are certain constraints within which this process is taking place. First, there are understandable concerns about the issues of border security and the pressure to ensure that this bill moves forward with a minimum of delay.

Second, this is framework legislation and as a result, much of the content of the issues that concern us is still being developed in regulations. It is difficult to address some of the core principles without knowing necessarily how they will be applied in practice and without being able to review with you the regulations.

Given those constraints, what can we realistically expect to accomplish through our appearance here today? What can we realistically seek from this committee? There are two things that we are seeking, short of actual amendments to the bill. In our brief we identify a number of potential amendments that we feel will strengthen the legislation. I will not reiterate those today.

In addition, we feel that this committee can express its opinion on the way in which certain phrases and terms within the bill can and should be interpreted.

The transcript of these proceedings will be useful to those who are responsible for applying the legislation in future, and we feel that certain interpretations and understandings will enhance the ability of policy-makers and those charged with carrying out the bill to do so effectively.

Second, we feel that, although the regulations are not before this committee, where there is an intersection of principles in the bill and content being developed in the regulations, this committee is entitled to express its views. We would hope that these views will be taken into account when the regulations are developed.

We support the recognition in subclause 12(1) of the bill that common-law partners will now be included within the family class. This has been happening in practice on humanitarian and compassionate grounds for a number of years. Our understanding is that officers have found that there are few difficulties in recognizing same-sex relationships and the entitlement of same-sex partners to be welcomed into Canada. It has happened on humanitarian and compassionate grounds, which is an arbitrary and invisible method that is not consistent with the principles of transparency and accountability.

When we appeared before the House committee, we recommended that the term "common-law partner" explicitly include both same-sex and opposite-sex common-law partners.

We understand, however, that Ms Atkinson, who appeared before you yesterday, made it clear that her understanding of "common-law partner" is that it is intended to cover same-sex partners. We would like to see that reaffirmed as the bill moves through its process, so there can be no doubt in future that the term "common-law partner" does apply to same-sex partners.

Second, we feel that because of the need for accountability and transparency in the application of the proposed legislation, people applying from overseas need to understand that "common-law partner" includes same-sex partners. Many gays and lesbians in other countries will not necessarily be aware that "common law" in Canada is understood to mean same-sex partners as well. "Common law" as a phrase is often understood in other countries to mean same-sex common law.

We have received many calls in our office from people who do not realize that they have a right to apply on humanitarian and compassionate grounds. Canadian visa officers abroad have even told them that they are not included in the family class; therefore, they have no rights to apply.

People are being turned away who have a right to apply. If we are getting a number of these calls, we imagine that is only the tip of the iceberg, and that a number of people never make contact with us and learn of their true rights and entitlements.

As a result, we would urge that the committee recommend, and the department take into account, the production of public education materials. It should be ensured that even if "common-law partner" is not defined within the proposed legislation, that the application forms, the material that accompanies the bill, and the regulations, when they are developed, make this clear.

We understand that the regulations are likely to include a one-year cohabitation requirement. We feel that this requirement simply does not work in the immigration context. Obviously, if people are separated by reason of immigration, they cannot cohabit for a year. Therefore, there will need to be broad exemptions to that requirement within the regulations.

If the exceptions ultimately subsume the rule itself, why retain it? Even though the definition of what is a "common-law partner" will be developed in regulations, we feel it is appropriate for this committee to take note of that important potential barrier and hopefully give some direction to those framing the regulations. The regulations need to be context specific and to take account of the reality that within the immigration context, cohabitation is not a feasible criterion.

Finally, in terms of the family class, as I have mentioned, "humanitarian and compassionate grounds" has been a valuable mechanism by which same-sex partners have been able to immigrate to Canada for some time. Whatever regulations are developed will not encompass all situations. We feel that it is important that humanitarian and compassionate grounds continue to apply as a catch-all category that will enable people who do not fit within whatever criteria are developed to still have their case considered and be able to immigrate to Canada if they fit fairly within the criteria that have been established and applied in the past.

In view of the time constraints, I will not go into a lot of detail about our points on the refugee claims. They are set out in our briefs. Suffice it to say that we face a number of obstacles that are not always recognized even in countries that Canada would consider reasonably supportive of refugees.

Lesbians and gays are not always recognized as having a right to seek asylum. Canada has made that recognition. Other countries have not, necessarily. There are a number of procedural requirements that we are concerned might operate fairly in some circumstances, but have a negative impact upon members of our communities because of obstacles particular to them, such as the difficulty of documenting their experience in their home countries and the fact that they are often isolated from their communities, even within Canada.

They often will not disclose initially that they are lesbian, gay, bisexual or transgendered. That creates certain concerns that are itemized in more detail in our brief. For example, if the refugee decision-making panels are reduced from two members to one, it is important that that one person have a lot of knowledge and experience of what it means to be lesbian, gay, bisexual and transgendered.

The final point I will make is in relation to the medical and admissibility provisions. The minister has speculated at times about mandatory HIV testing and exclusion of those who test positive. This is a serious concern.

It is clear that under the criteria spelled out in clause 38, people with HIV do not, in and of themselves, constitute a threat to public health and safety. The question of excessive demands on health and social services is one which, as it is set out in the bill, does not enable a weighing of that person's contributions to the country as well.

It is assumed that people place a demand on Canada's health and social services. The minister seems to have assumed that that might apply automatically to exclude people with HIV. We feel that would be an inappropriate application of those criteria. Consideration should be given not only to questions of cost, but also to those people's contributions to Canada. That is particularly relevant now, when people with HIV, through modern drug cocktails, are able to live much healthier, longer and more productive lives and make significant contributions to this country.

Those are the key points that we are advancing. We will be happy to take any questions.

Ms Anuradha Bose, Executive Director, National Organization of Immigrant and Visible Minority Women of Canada: Since my mother tongue is English, I will ask your indulgence in continuing in English.

The National Organization of Immigrant and Visible Minority Women of Canada is a non-profit, non-partisan and non-sectarian organization whose mandate is to ensure equality for immigrant and visible minority women within a bilingual Canada. Some of the issues that concern us are immigration law reform, violence against women, poverty, the accreditation of degrees earned abroad, and e-government.

In April this year, we appeared along with several other women's organizations before the Standing Committee on Citizenship and Immigration to make recommendations on Bill C-11. We are appearing before you, the Senate, because we are concerned that the climate in Canada has changed drastically since the unfortunate incidents of September 11.

We are concerned that Bill C-11 not be used as a blunt instrument in the very real fight to protect our country and our citizens from the threat of terrorism. We urge you to proceed with open minds and hearts on a bill that touches the lives of a considerable section of the population.

I will only touch on a few crucial points today. The first point is the terminology.

Bill C-11 includes a definition of a "permanent resident," but also introduces a new term, "foreign national," to denote all non-citizens. This runs counter to the government's professed commitment to multiculturalism and civil liberties and may well fuel latent xenophobia in the aftermath of September 11.

We recommend that the term "foreign national" be removed from Bill C-11. Bill C-11 has defined "family class" in subclause 12(2), but the current act does not. However, subsection 2(1) in the regulations does so by listing spouses, children, parents and grandparents.

Bill C-11 deletes any specific reference to the rights of grandparents to sponsorship and lumps them in under the term "prescribed family members." Their right to enter Canada as sponsored landed immigrants is left up to the discretion and goodwill of the regulatory agency. We are concerned that the proposed legislation not restrict the right of Canadian citizens and permanent residents to sponsor grandparents. Any proposed legislation must recognize the subsidy provided to the state by grandparents who often act as built-in, unremunerated and willing childcare providers in a time of government cutbacks on social spending.

We recommend that "family class" be defined explicitly and that no previously recognized categories be excluded, particularly grandparents.

The NOIVMW constituency has a great interest in the sponsorship regime. The great majority of visible minority women enter Canada as sponsored immigrants and, in turn, sponsor parents and children. The various clauses that deal with this subject are scattered all over the bill. We are asking that the codification of the sponsorship regime be made more user-friendly, and that all the provisions relevant to sponsorship be grouped under one section of the act. This would ensure that it would be more accessible to the immigrant and visible minority communities.

We are also asking once again for relief on sponsorship undertaking. The sponsorship undertaking is the cornerstone of the sponsorship regime. Yet the current legislation is silent on it. The current agreement is effective for a full 10 years and is cast in stone. Neither the length nor the substance can be altered, regardless of a change in status of the sponsor or his or her spouse.

Spousal sponsorship creates a legal bond of dependency and exacerbates the inequalities within marriage. It leaves women open to economic and social control by their husbands. Women live in fear of the withdrawal of sponsorship by their husbands and are often forced to remain within abusive and violent relationships. Such legalized dependency is contrary to the Charter's equality provisions.

We recommend that the length of the sponsorship agreement be reduced to three years to bring it into line with citizenship residence requirements, and that the two-tier citizenship - those eligible to claim benefits and those denied - be eliminated.

The Chairman: I should tell you that officials yesterday indicated that the length of the sponsorship agreement would be reduced to three years in regulations.

Ms Bose: In our joint submission to the Commons committee, we are on record as being opposed to the introduction of an immigration status card for all permanent residents, but since the events of September 11, certain sections of the NOIVMW constituency have expressed their support for the speedy introduction of a secure document attesting to permanent residence for all landed immigrants. The immigrant visa and record of landing, the IMM-1000, is easily forged and trafficked and works against the very persons that it is designed to protect.

NOIVMW recommends that the Government of Canada introduce a secure document for all landed immigrants that can be exchanged for a certificate of citizenship once they have fulfilled the residency obligations and satisfied the citizenship courts.

NOIVMW would also like to speak on behalf of the caregivers and domestic workers. We are disturbed to find that Bill C-11 makes no explicit mention of caregivers and domestic workers, both all-female professions where visible minority women are heavily represented. Nor is there any indication that they will be covered by regulations.

The live-in caregiver program puts foreign domestic workers into a special class, and they are subject to increasingly restricted and coercive residence, single-entry and family reunification policies. Their temporary migrant status and the compulsory live-in requirement leave them open to undue hardship and exploitation. We recommend that the live-in requirement be detached from the occupational criteria for caregiving and domestic work.

NOIVMW recommends that the temporary employment authorizations be made employment-specific - that is, domestic work or caregiving - and not employer-specific. We recommend that an independent monitoring function be enshrined in the act to safeguard the rights of domestic workers and caregivers.

We recommend that the monetary and orientation functions be contracted out to a women-led NGO.

NOIVMW is an organization, honourable senators, which acts as an advocate for immigrant and visible minority women. As such, it is distressed to see that Bill C-11 makes only a passing reference to a grave problem. Immigrant women have constantly expressed their frustration at the barriers thrown up by regulatory interests to recognition of credentials and degrees earned in their countries of origin, or third countries. We have worked since 1992 with nurses, social workers and teachers from immigrant backgrounds to keep this issue in the public eye.

We recommend that the recognition and accreditation of professional and academic degrees earned abroad be treated more substantively in Bill C-11 and that this issue be given serious consideration in the ongoing dialogue between the federal government and the provinces.

We would also recommend that this Senate committee organize a hearing on this subject so that Canada can safeguard its social capital. Thank you.

Ms Erin Lee-Todd, Vice-President of Anti-Racism and Anti-Oppression, Ontario Association of Interval and Transition Houses: I will refer to our organization as OAITH instead of saying the full title every time.

OAITH is a provincial shelter organization that works to improve support for abused women and their children. Specifically, the 65-member association has maintained a leadership role across this province and has brought the needs specific to abused women and their children to the forefront on many levels, including provincial and federal policy-makers as well as the general public.

We draw on the experience of front-line shelter workers to accurately express and reflect the experiences of abused women and their children and ensure that their voices are heard.

I will refrain from making recommendations. First and foremost, I want to share the experience of the women who have been invited to complete an internal survey across the province of Ontario specific to the Immigration Act, and how it impacts on their ability to access services in the shelter and to remain in Canada and keep their families intact.

About a year ago, women were invited to participate in this internal survey to tell us how the Immigration Act has impacted them, not just in the accessing of our service, but also in their efforts to remain in a good living environment with their children. These women highlighted refugee issues, the issue of sponsorship and breakdown, fear - and often threat - of deportation, mothers of Canadian-born children, removal orders and lack of access to community supports.

We would like to applaud the government's initiative in reducing the length of sponsorship from ten years to three. However, we believe an exception should be made in the case of spousal sponsorship. There should be no sponsorship between spouses. Women who have been sponsored by a partner are economically dependent on that partner and may not have full access to the employment market, given race and language barriers. Women's economic dependence also reinforces the differential power imbalance within the marriage. Abused women who separate from their partners are able to dissolve the partner's sponsorship responsibility. Women who access the shelter system have the additional information. Women with whom we work in outreach, or whom we are not able to reach, may not have this information, and that would hinder their ability to get out of an abusive situation.

Canadian-born children are Canadian citizens. We acknowledge that. Mothers of these children who do not have status or citizenship are being removed from Canada at the expense of the relationship between mother and child.

Canada seems to be ignoring the United Nations Convention on the Rights of the Child, which states that state parties shall ensure that children shall not be separated from their parents against their will except when competent authorities determine that such separation is necessary for the best interests of the child.

The enactment of the removal order is contrary to the commitment to family reunification outlined in the bill. Further to this, custody of the children has often been granted to the abusive partner, who may have more established status or, in fact, citizenship. Is it in the best interests of the child to be parented by someone who is abusive toward the other parent? We think not.

In addition, in our shelter movement, we certainly support the rights of gay, lesbian, bisexual and transgender people. We believe that lesbian women's experience demonstrates that their rights are not being acknowledged clearly in this bill.

I will not take up your time by repeating what our very learned colleagues beside me have stated. I am sure that all members have been provided with a summary of the recommendations put forward by the National Association of Women and the Law, the West Coast Domestic Workers Association, the National Organization of Immigrant and Visible Minority Women of Canada, and the Table féministe francophone de concertation provinciale de l'Ontario. We strongly endorse this document and this brief.

The Chairman: Mr. Fisher, I am sympathetic to your concern that same-sex relationships be included within the family class. It is my belief that that could be accomplished by stating in the regulations that common-law relationships include same-sex relationships. Am I correct on that?

Mr. Fisher: That is correct. It is our preference that it be made visible and explicit in the proposed legislation itself. We believe that a change should be made, through a vote in the House and the Senate, in order to remove what we see as a core definitional requirement of the family class. However, it could be done through regulations.

The Chairman: Am I also correct that protection of people fleeing persecution based on sexual orientation or gender identity could also be accomplished in the part of the regulations that deal with what constitutes admissibility?

Mr. Fisher: That is also correct. Indeed, there is a Supreme Court decision that recognizes that sexual orientation is encompassed within the phrase "membership in a sexual group." Gender identity and transgender status is less clear, and we believe that there is some clarity required around that.

[Translation]

Senator Pépin: If I understood correctly, you seem to have information showing that gays and lesbians, when they apply to immigrate, are subject to discrimination. Are you concerned this new act will increase such occurrences? Does it happen often?

Mr. Fisher: Same sex couples can presently immigrate to Canada. But the section dealing with humanitarian and compassionate grounds makes it discretionary and arbitrary.

[English]

Mr. Fisher: Currently, yes, a partner of a Canadian who is gay or lesbian is entitled to immigrate to Canada on humanitarian and compassionate grounds. There are policy directives that have made it clear that those partners should be accepted if it is a bona fide relationship and if it is clear, on humanitarian and compassionate grounds, it would cause hardship for them to be separated.

Currently, consistent with the omnibus legislation passed last year to include the term "common-law partner" throughout federal law, common-law partners are now being recognized within the family class in the immigration context. It is becoming less of a discretionary and somewhat arbitrary and invisible mechanism and more of an automatic right.

Accompanying that, of course, is the need in the regulations to define a whole range of criteria for how we identify a qualifying common-law relationship. As our brief articulates, amongst our concerns is that there is a perception on the part of the department that in order to have consistency with the omnibus legislation of last year, similar definitions are needed, including the requirement of a year's cohabitation, which we believe does not work in the immigration context.

[Translation]

Senator Pépin: They make changes in the regulations and it is clear that it will improve this.

[English]

Mr. Fisher: Yes, it would become less discretionary. It would become a right and clearly included within the family class, which is where it belongs. It is a question of family status.

[Translation]

Senator Pépin: Mrs. Bose, you talked about the ability of grandparents to sponsor their children. Is there a problem in this regard at the present time?

Mrs. Bose: Not at the present time, but if bill C-11 is passed, there will be.

Senator Pépin: So you have concerns with regard to Bill C-11?

Mrs. Bose: I would like the term "grandparents" spelled out in the new bill.

Senator Pépin: You also talked about "domestic violence" or "domestic workers." In this regard, is your concern that the clause dealing with residence should not be tied to the employer?

Mrs. Bose: Yes.

Senator Pépin: I agree. I know of several cases where domestic workers have been assaulted by their employer. It is not clear enough in the bill as it stands.

Mrs. Bose: Neither is it for us.

[English]

Senator Fairbairn: Mr. Fisher, you said that you were recommending no change to current policy regarding HIV testing requirements for people coming into the country. I would have thought this would be included in the regulations. Have you had any indication that you should be concerned about this, or are you just putting down a marker to indicate that there should be no change?

Mr. Fisher: Our concern is based upon public statements that the minister has made, and the relationship between that and the proposed legislation, as opposed to the regulations. Clause 38 does set out the grounds of inadmissibility for health reasons, and subparagraphs (a) and (b) talk about a danger to public health and safety. We understand that that is not perceived to be a concern in relation to HIV.

Subparagraph (c) says that persons may be excluded if they might reasonably be expected to cause excessive demands on health or social services. One of our comments to the House committee was that that formula focuses only on the negative side of the equation, and does not permit a balancing of the person's contributions to Canada. People with HIV, who are now living longer and more productive lives than ever before, may be perceived to be solely a drain on Canada's resources, without putting that in context and recognizing that a more flexible formula might permit better balancing of that person's contributions as well.

That being said, without a change, I do not think 38(c) requires that the positive side of the equation be taken into account. I think that appropriate directions and some guidance from committees such as this might encourage those drafting the regulations to take into account a broader range of factors. Our preference would be for something broader than the narrow formula set out in 38(c).

Mr. Chaplin, who has done some work in the HIV field as well, has now joined me.

Mr. Ron Chaplin, Chair, Political Action Committee, Equality for Gays and Lesbians Everywhere: Our concern here is based on a series of confusing announcements from the minister regarding the policy pertaining to HIV-positive immigrants. There was a preliminary announcement that there would be mandatory testing of all immigrants - all independent-class immigrants - and then a mandatory exclusion of all who tested positive. That was revised with a statement that there would be mandatory testing and not mandatory exclusion. We were also assured that these would not apply to family class or to refugee class applicants. We know that is not the case.

We are just concerned that this country and that this government not adopt the kinds of measures that have been adopted by some parts of the world to bar migration on the basis of HIV status. We do not think this is an appropriate justice, human rights or public health approach for the Government of Canada to take.

Senator Fairbairn: Thank you for that clarification. I appreciate that. This committee is in a position to make recommendations, given that there is no clarity on the regulations at this time.

My other question concerns information. There were comments to the effect that there should be no sponsorship between spouses. You talked about women who have been sponsored by a partner, or are economically dependent on a partner, who may not have full access to employment, given race and language, which create barriers to access. You talked about women's economic independence.

Please explain to us what was meant by, "There should be no sponsorship between spouses." One meaning might prevent a woman from coming to this country. Could you explain what that means?

Ms Lee-Todd: We are looking at situations where the couple is here in Canada, and there is a breakdown in the sponsorship. When that occurs, the women are unable to access social services, for instance. Housing is a major issue, especially in Ottawa right now. Certainly, across the province, the needs for access to affordable housing and legal help are not always met for women who come to the shelter because of sponsorship liabilities. We certainly look at it through an analysis of the imbalance of power, and we feel strongly that there should be another provision put in place for women who are fleeing abusive situations.

We are not necessarily looking at just the sponsorship of one person in another country by a person who is here. Once the woman has arrived here, she is bound - without the information and without access to services - by that sponsorship, which often limits her ability to deal with all the issues that require accessibility. We see it in the shelter movement.

Senator Fairbairn: Would this be some kind of new language for the regulation then?

Ms Lee-Todd: Yes. I think that is completely accurate. We certainly looked at suggesting that perhaps there need to be regulations or criteria that are specific to women who are victims of family violence and who are currently living in Canada.

Senator Fairbairn: It might be helpful to the committee if you could send us some suggestions as to the language that would cover this situation and assist in providing clarity. I certainly understand better now. Perhaps could you give us some help with how it should actually be phrased.

Ms Lee-Todd: I should inform all of you that we had a meeting in Toronto on the weekend. We spoke specifically about what we would recommend and what we could put forward today. Unfortunately, it was not available for today, but certainly I anticipate having those recommendations before Friday to forward to you.

[Translation]

Senator Pépin: We know that abused women are hesitant to go to a shelter. If this bill is passed, there will be a three year delay before the immigrant gets landed status.

In your experience - and I am not opposed to your recommendation - how many weeks or months does it take an immigrant woman before she finds the courage to go to a shelter to seek help? It takes her a long time. Usually, even immigrants to this country hesitate a long time before leaving their family and their children.

Mrs. Lee-Todd: I know the statistics for the Ottawa area, but I cannot comment about the rest of Ontario.

In Ottawa, we make great efforts and deploy lots of energy for our outreach program. At the immigrant committee of our shelter in Ottawa, we know that women will come to a shelter after two or three years. Statistics show that this happens in the second or third year after their arrival. This has changed, because there are women in each community - leaders - who provide information to people in their community. At the present time, we do not have enough funds to help everyone. We have a few small projects in our region to disseminate information.

Senator Pépin: It will be important to provide information because the bill says the immigrant woman has to wait three years before becoming landed. I know quite a bit about shelters for abused women. I opened the first ones in the early 1980s. It seems we are still faced with the pressing problem that women wait a long time before they find the will to leave their family and their children and go to a shelter. The delay could be a source of more discrimination.

[English]

Senator LeBreton: Being one myself, I have a particular interest in grandparents. You talked about the terminology and how the new term "foreign national" has made its way into the bill.

You specifically make a recommendation about subclause 12(2), on family class, where you state that a foreign national may be selected as a member of the family and, of course, grandparents are excluded.

In your previous testimony, or when the bill was before the House of Commons, or in any discussions that you had with the Department of Justice, did they specifically explain or try to defend the deletion of grandparents in this proposed legislation? If so, what reasons did they give?

Ms Bose: I am sorry, senator, I was not in the country at that time. I did not work for the organization. I was instructed by my board to make sure that we stressed the point because, as you know, immigrant families lay great store by the extended family. Grandparents are now considered the repository of our culture that our parents are sometimes loath to pass on.

I also see it as a very important function in light of the cutbacks. Grandparents are now built-in caregivers, which is why we are stressing this again.

I am sorry. I do not think that I have answered your question.

Senator LeBreton: I am wondering if there is an ulterior motive, because grandparents are usually older. Is it a subtle way to exclude these people because of their age and avoid the potential that they may be a little more strain on the social services or health care systems?

Others that have dealt with this bill, and had a little more opportunity than you have had, have actually tried to flush out the reasons. I agree with you that grandparents, including those who choose to come to Canada, are certainly very important. They probably contribute more to taking pressures off the system if they are participating in daycare.

I am curious as to why grandparents are specifically left out of the new bill.

Ms Bose: Unfortunately, senator, there is a perception in the majority communities that immigrants are spongers and whiners who will put a burden on the social service system. Our problem is that our contribution to the economy has never been quantified. I do think that there is this perception that not specifying grandparents may discourage people from bringing the aged in.

I believe that the grandparents are needed now more than ever, especially since immigrant families are breaking up. You will see women heads of households in immigrant families, which you did not see when I first came to this country in the 1970s.

Senator LeBreton: They now fall under the term "prescribed family members." Does that then indicate that if they are to be brought over for a specific reason, they are allowed to come? Do you feel that there is age discrimination here?

By including them in the term "prescribed family members," would there have to be a specific role for them to bring grandparents into the country? They would have to agree to it before they would be allowed to enter the country?

Ms Bose: Possibly, but we are also concerned that this term leaves a lot of discretion to the regulatory agency and depends on the goodwill of an immigration official. We would like it to be specified.

Senator LeBreton: The same as Mr. Fisher would like a more specific definition of "common law" in the bill rather than in the regulations.

Mr. Fisher: Exactly. I think clarity and visibility are important principles in our immigration scheme. That is not always apparent throughout this bill.

The Chairman: I may just say that it would be difficult to find a group of people in Ottawa more sympathetic to the issues of grandparents than this one.

We will discuss this explicitly with the minister. I am informed the minister made a statement, apparently some time ago, that grandparents would be included in the regulations definitively.

By the way, Ms Bose, I am inclined to accept your interpretation. I think that there is a perception that grandparent immigrants, or immigrants of that age, do in fact pose a burden. It is false, but there is a perception that they impose a burden on the social service safety net of the country, which does not take into account what you correctly described as the huge, unpaid family benefits.

I personally know families of immigrants where in fact both parents work, and the role of the grandparents is effectively to provide free daycare.

Our next witness is well-known to all honourable senators, having appeared before committees that I have chaired on a variety of different subjects. I should like to welcome David Matas of B'nai B'rith Canada.

Mr. David Matas, Senior Legal Counsel, B'nai B'rith Canada: Honourable senators, I shall try to make my presentation brief, partly because I have so much to say and if I said it all I would use up all the time.

I have appeared before the Senate on several occasions. Part of the reason I keep on coming back is I enjoy it. I believe the Senate deserves its reputation as a chamber of sober second thought, and I believe that this is a bill for which that virtue needs to be exercised to the fullest.

Bill C-11 is complex. It is the first new Immigration Act since 1976. There are many problems with the bill - technical problems as well as big-issue problems. It needs a thorough going over. There is a whole new fix on the bill because of the destruction of the World Trade Center and the terrorist attacks, which means that we must look at this system through different eyes. I believe the Senate can do it, given the time. I would encourage the Senate to take the time to look at this bill carefully from the new perspectives of post September 11, and with the care and attention to detail that it normally exercises with proposed legislation.

I am here for B'nai B'rith, which has experience in dealing with the problem of war crimes, and crimes against humanity in particular. We have been seriously concerned over a number of years with bringing Nazi war criminals to justice, particularly in Canada. We have seen the system fail in many different ways over decades. It is still a problem. This bill does not really address the problem squarely.

As some of you know, I am a refugee lawyer in private practice. That gives me an individual perspective on this bill that, to a certain extent, overlaps with the concerns that I am presenting from B'nai B'rith. The proposed legislation is complex. It is detailed. It is multi-step. It is lacking in fairness in some respects. It denies international standards in some respects, and it drags out proceedings unnecessarily - too long, too complex, too unfair.

We can see that in practical, everyday terms when dealing with war criminals, criminals against humanity, torturers and terrorists who are in Canada now. We just cannot seem to remove them. There are more Nazi war criminals who have died of old age during the course of proceedings than have been removed.

I have written several briefs and they are all available. I wrote a couple of briefs to the House of Commons, and I changed them a little for the Senate because, regrettably, the proposed legislation did not change that much after I gave them. Many of the problems that I saw then, I see now.

I will not read through the brief I prepared for B'nai B'rith, but I will highlight some of the recommendations, and then leave it for questions.

The first problem I have with the bill is that it does not set out clear rules on who is removable. It sets up a system such that some people who are in the category of terrorists, torturers, war criminals and criminals against humanity can be allowed to stay at the discretion of the minister. In my view, none of them should be allowed to stay, unless they are removable to torture, arbitrary execution, forced disappearance or death penalty. In those situations, none of them should be allowed to leave, but the bill does not say that. It allows removal in situations where they should not be removed, and it allows them to stay in situations where they should not be allowed to stay.

The second problem I have is that there is a lack of integration of the whole system. The Immigration Act is one part of an overall system dealing with terrorists, war criminals, criminals against humanity and torturers, along with the Citizenship Act, the Extradition Act and the Criminal Code, and these systems are not integrated. The result is that we have to keep going through the same procedures again and again, proving the same allegations again and again, which is one of the reasons it takes so long for someone to get out. We need a consolidation of the Citizenship Act proceedings and the Immigration Act proceedings.

One of my frustrations, and one of the reasons I keep coming back, is that all these bills are constantly going before Parliament. We have had a recent change in the Extradition Act, and recent legislation concerning war crimes and crimes against humanity. We have had different versions of the citizenship bill. We should integrate the procedures. Each one of these procedures is compartmentalized, and it is repetitious. We should be able to revoke citizenship for torture, war crimes, crimes against humanity or terrorism.

Second, the person who revokes citizenship should also be able to issue a deportation order. It should not be necessary to go through a separate procedure of a revocation of citizenship and then a deportation proceeding, when, as happens now, one result follows automatically after the other, but not for quite some time. I have suggested that the locus for this joint decision be the Federal Court Trial Division.

We also need to integrate citizenship and immigration with criminal proceedings, so that if someone is convicted of a war crime, crime against humanity, torture or terrorism, that should be enough for revocation of citizenship and deportation, which is not the case now.

There is also the absence of prosecution. Obviously, when you are dealing with international criminal fugitives, the best deterrent is prosecution, conviction and punishment. It is not revocation of citizenship and deportation. We do not prosecute international fugitives, terrorists, torturers or criminals against humanity.

For many years, there was a problem with the Supreme Court of Canada, as demonstrated in the Finta case, but that has been resolved now with the new bill. However, there are still no prosecutions. It was a problem for war crimes and crimes against humanity, but not for torture. There have never been any prosecutions for torture or terrorism. There are some conventions that obligate us to prosecute certain types of terrorism.

We should be referring any exclusion or deportation or revocation of citizenship based on war criminality, crimes against humanity, torture and terrorism to the relevant prosecutors. We do not even do that; in fact, we do not even investigate. One has to wonder what is happening in the system.

I have done some research of the cases, and there are many, of people excluded from the refugee definition and ordered deported because they are torturers, war criminals or criminals against humanity, and none of them were prosecuted. The law allows for prosecution. In international law, there is a duty to either prosecute or extradite. What is happening here? Are nice people really torturers and war criminals, and if they are, why are we ignoring our duty to either prosecute or extradite?

Those are some of my concerns. I have a number of other, detailed concerns about specific provisions of the bill, but given the time involved, I think maybe I will leave those to the written brief.

I would ask the Senate, and the government, to address this whole issue in an integrated way, so that we think about how we are dealing with terrorists, war criminals and so on, rather than looking at it in terms of the Immigration Act alone.

The Chairman: I have the impression, and I want to make sure I am correct, that you are not in favour of ministerial discretion in a number of cases. You would prefer a situation in which the minister did not have discretion, so that you are either inside the box or outside the box, and there is no flexibility. Is that right?

Mr. Matas: I would say, as a general principle, I would agree with that, although it went a little beyond what I was actually saying. I am concerned about the discretion to allow terrorists, war criminals, torturers and criminals against humanity to stay in Canada. That discretion is in the bill, and I do not like it.

I also do not like that the bill allows for discretion to permit them to leave to face torture. In a general sort of way, and as a principle of legislation, it is wise to try to articulate rules as much as possible. I realize that in immigration, there may be situations you can never foresee, for instance, in respect of humanitarian jurisdiction. I would not say there should never be any discretion on the part of the minister, but there are some areas, such as keeping war criminals in Canada, where the minister should not have that discretion.

The Chairman: I may wish to return to that.

Senator Beaudoin: One of my concerns is the right of appeal, which has been challenged by some witnesses today, in Division 7, clauses 62 to 71. The same argument applies to the refugee appeal division and the immigration appeal division.

It is, in my opinion, very restrictive. I understand and agree 100 per cent with our objective and the need for security. However, the right to appeal is part of the great principle of the rule of law. In my opinion, we have gone a little too far. Members of the Canadian bar and our witness earlier today from the immigration lawyers of Quebec also think that. Do you believe that we have gone a little too far?

Mr. Matas: This is not something I dealt with in other briefs, but it is certainly a concern of mine. Right now, the greatest problem with appeals to the appeal division at the Immigration and Refugee Board has to do with criminality. Currently, you can be denied an appeal if the minister issues a "public danger" opinion. That public danger opinion process is fraught with problems. It has been caught up in the courts, where all these danger opinions are being overturned. The people who have danger opinions against them end up staying longer than people who do not, because of the mess that has been created by it.

The government solution was to take away the danger opinion, although you can see it in the bill in other ways. They have not let it go completely, and that is part of the problem. It exists and yet it does not exist - it is contained in different parts of the bill and in different ways. There is no consistent approach to it. At least here, in terms of the appeals division, it is gone, but it has been replaced with ten years maximum to two years minimum.

Thus, there are people who have no appeal, even though they are not necessarily a danger, even though it may be a single offence, there may be no likelihood of recidivism, they came here as children, they may have all their family here and there may be many mitigating factors. Typically, these appeals balance off all of these factors.

I do a lot of appeal work in my private practice. On the whole, I think the appeal division judges do a good job. They are fair; they are responsible; they are expert. Part of the reason the public danger opinion system does not work is that it is not fair and the people do not know what they are doing. They are not people who know very much about criminology, recidivism or penology.

This is a problem that needs to be addressed. The solution that I have proposed, because have I dealt with these problems, is that the public danger procedure should be assimilated into the national security procedure. The security procedure is, by comparison, or even in an absolute sense, fair. The security procedure goes to Federal Court; it is a public hearing; one deals with experts who know what they are talking about, and it is done in a careful way. Public danger is the same sort of problem. It may make sense to keep the concept. It is just that we cannot use the procedure that is in the present legislation.

Senator Beaudoin: I have one other point. There is a tendency, and it goes back 30 years, perhaps, to give a lot of power in the regulations to the Governor in Council. I understand that. When there is an emergency case, it is accepted by the courts.

However, in this case, the regulations are to be made after both Houses have adopted the act. I agree with that procedure, but it takes time. I have the impression that the power that we delegate to the Governor in Council is very vague. We do that more and more. It is not this bill in particular. Many bills are like that. We give a lot of power to the Governor in Council. We have a committee here in the Senate that is looking at whether it is within the mandate or outside the mandate.

However, the fact is that this tendency in not ideal, in my opinion. You, as a lawyer in private practice, have dealt with that problem very often, especially in the field of human rights.

What do you think about this question of giving more and more latitude to the Governor in Council? Sometimes it does a fantastic job, but not necessarily.

Mr. Matas: On a general level, if you put it like that, you would want legislation to have basic principles. The Governor in Council should not have the power to legislate basic principles, because it is not then subject to the full legislative debate.

Senator Beaudoin: That is exactly what I have in mind.

Mr. Matas: It is a problem here, because you cannot get a sense of how the scheme will work just from reading the bill, because there are bits and pieces that are not in the bill, but only in the regulations.

Take, for instance, the issue of whether someone is removable before they go to Federal Court. Yes or no? The bill does not say. It is left to the regulations.

I talk to the civil servants on occasion. They have indicated, "Well, what we will do is maybe put in a regulatory stay for a couple of years to see how it goes and then we will lift it." Whether or not there will be a stay to go to Federal Court is an integral part of the scheme of the bill. To say, "We will put it in for a couple of years by regulation and then if we do not like how it is going we will lift it," violates the notion that legislation should contain basic principles.

One can give other examples like that. I think that is a problem.

Senator Beaudoin: Some jurists said that the question of delegation is a little vague. I am inclined to agree with that. That is your reaction, too.

Mr. Matas: Yes.

Senator Fairbairn: Also, Mr. Matas, there is a limitation now within this bill on access to the Federal Court that was not there before, which perhaps confuses things even more.

Mr. Matas: In terms of access to Federal Court from visa posts abroad, the bill says permission of the Federal Court in writing is needed, whereas right now you can go as of right. You do not have to go through the preliminary stage of applying and writing for permission. That is a real problem. Again, it is not particularly a war criminal problem, but I am familiar with it through the immigration bar.

The quality of decisions at visa posts abroad is considerably inferior, partly because of the press of time and business, and the Federal Court performs a very important supervisory role there. One does not have immediate access to counsel in many of those places, so people will not necessarily be familiar with the leave requirements. As well, people are not waiting in Canada when you are dealing with visa posts abroad, so you do not have this problem of keeping people here during the process. The present system actually makes a lot more sense than the proposed change to cut off access to the court.

Senator LeBreton: The more I listen to the debate about this bill, the more I wish that those who wanted it to go before the Standing Senate Committee on Legal and Constitutional Affairs had won the argument, because it is so complex.

I appreciated your opening comments about the role of the Senate, and that we should take the time to look at this very carefully. I am seeking your thoughts on this and, since this is broadcast, your help, I suppose, in terms of the horns of the dilemma we are on here.

We have a public that, for some reason, thinks this is the be-all and end-all; that this will stop the terrorists coming across our borders; and that somehow or other, if we do not expeditiously pass this bill, the government will not have the tools with which to deal with the "clear and present danger," as many people refer to it. However, in their testimony this morning, the Canadian Bar Association did say to us that there is no gap out there that can be filled by the provisions of Bill C-11.

Since you have such excellent credentials in this field, I would like your perspective on how we can explain to the public what this bill does and does not do, and how it does or does not relate to the events of September 11.

Mr. Matas: It should be obvious to almost everyone that this bill was not designed with the World Trade Center disaster in mind. It was in the making long before these events happened. It would make obvious sense to react to these events. However, this bill does not do that. It is a complete replica of what happened before these events occurred.

The Senate, of all institutions, should not panic in the face of something like the World Trade Center event. I think we have seen a form of panic in many reactions. We look to the Senate for some form of reflection, and to say, "Let us look at this seriously."

Part of the message I am trying to get across here is that some of the problems with this bill are made more acute, more manifest, by what happened at the World Trade Center. We do not have an adequate way to move terrorists through the system. It is too compartmentalized, too fragmented, too slow. That was a problem before, but I think it is even more of a problem now. It would be foolhardy to ignore the problem and just rubber-stamp legislation designed in advance, without even looking at the applicability of the current crisis to that proposed legislation.

Senator LeBreton: You talked in your opening remarks about the lack of integration. I know this is a huge problem. The ordinary layperson assumes that with current technologies and computers, there must be tremendous integration between Immigration and the border points. You also talked about the absence of prosecution and punishment.

What can be done now to address the demands of the public in terms of the security of our borders, while at the same time not discriminating against, or causing any undue hardship to, legitimate refugees and those who seek to come to our country for legitimate reasons?

Mr. Matas: Of course, that is a very large question that goes beyond this bill. Since you asked a very general question, perhaps I can give a very general answer.

It is important to get the immigration system right, but it is expecting too much of that system to solve this problem or to protect us on its own. That was part of the problem in the American experience. After the previous attempt on the World Trade Center, the Americans toughened up their immigration system. They started putting people in detention at the borders; they began a credible-basis screening at the border; and it did not prevent the second attack. None of those people were caught up in that system. It simply created an illusion, a false sense of security.

We obviously must take precautions and we must make the system work. We cannot allow terrorists to cross our borders freely, but we cannot say that tightening immigration is the solution. An obvious example is Timothy McVeigh. The problem is not just with foreigners. Regrettably, since the World Trade Center event, I have seen a lot of xenophobic venting.

We must remember what happened in World War II after the bombing of Pearl Harbour. Canadians and Americans reacted by taking citizenship away from Japanese immigrants, moving them away from the borders, dispossessing them and relocating them. Now we are paying compensation for that. We admit that was wrong and we should not make that mistake again.

Senator LeBreton: The Canadian Bar Association, in their testimony this morning, specifically targeted clause 64 on permanent residents. They actually characterized that clause as "mandatory deportation." They offered the opinion that this particular clause will cost the government incredible sums of money in legal defences. Do you have a thought on that now? If not, could you perhaps look at it and let us know later?

Mr. Matas: Sure. In reality, the courts are prepared to step in when human rights are violated. If the government goes too far and violates basic rights by devising a system that does not work, it will be caught up in litigation, which will keep more undesirable people here longer than if the system did not exist in the first place.

That is our experience with the public danger system. The government was so anxious to get those kinds of people out that they devised an unfair system, the courts have intervened and those people are still here because of that.

Clause 64 has some of those same problems. It is not just criminals we worry about; it is misrepresentation, too. Misrepresentation can be very grave if one is hiding a war crime, but not if one is hiding a child, for instance. Obviously the government should know about it, but that should not always necessarily result in mandatory deportation. The government has gone too far in clause 64.

Senator Roche: Mr. Matas, your reputation has preceded you. That is why we are looking to you, sir, for some guidance.

Let us get right to the point. The government wants this bill intact because of the exigency in which it finds itself - that it must be seen to be responding to the World Trade Center crisis and similar risks. Even though your statement that the immigration system alone cannot protect us is perfectly true, this bill, by virtue of the timing, is caught up in the political dimension of the government's response. If Parliament is seen to be rejecting an immigration bill that contains some tougher measures to protect us against terrorists, you do not have to be a genius to figure out that the government will be petrified that that will send the wrong kind of signal to the United States at the very moment that we have appointed our own security czar - or whatever Mr. Manley is going to be. He wants to convey to the United States, with whom we have an extremely important and very sensitive relationship, that Canada will be tough.

We are under a lot of pressure here. I do not know about my colleagues, but I am very concerned about whether I should give my assent to the passage of this bill. I have asked some witnesses if they can pinpoint where this bill is really harmful to legitimate refugees and immigrants. I am not getting a satisfactory answer. Some witnesses do not like clause 64. The government says that clause will be handled properly.

I want to come down to the basic question - if you were in our shoes, would you pass this bill as is?

The Chairman: You are allowed the equivalent of the Fifth Amendment, even though that is an American tradition. Knowing your history with us, my guess is that you will not duck the question.

Mr. Matas: No, I will not duck. It is hard, indeed, for me to imagine myself in your shoes, senator, but I will try. In my view, we must indeed address the politics of the situation. I have talked to government people who admit that any piece of legislation can be made better, but at some point, you just have to pass it.

Are we at that point now? I would say that we are not. Politically, we can make this bill better at dealing with the problem of terrorism. There are other problems with the bill too, but it is not as effective as it could be in dealing with terrorism. Politically, that is an important message. I could understand a new piece of immigration and terrorism legislation, based on what happened at the World Trade Center, passing quickly, but I do not see the political value of rubber-stamping a bill that was prepared before that event. How can we say this is the solution? That is an ex post facto rationalization. It is not an attempt to deal with the problem.

If you want to deal with the problem squarely, you must confront it squarely, and try to see what can be done. This bill was not devised with that in mind.

My view is that the public would understand. As I said before, the public does not want a panicked speed, especially from the Senate. In the face of the terrorism, the barbarism, that we have witnessed, the public wants an adherence to our values, our principles and institutions, including the Senate. The Senate should function as it always has, and not act in an un-Senate-like way because of what happened at the World Trade Center.

Senator Roche: Thank you for that. Is the definition of "terrorist" too wide? Are you concerned that there is no specific definition of terrorism? Yesterday the Secretary-General of the United Nations spoke on the terrorism debate in the UN. He stated that even the UN has trouble giving a precise definition of terrorism. Is this bill weakened by the fact that there is no specific definition?

Mr. Matas: Yes, it is. Frankly, it may be difficult to define terrorism, but it is not impossible. I have seen a perfectly satisfactory working definition in the International Convention for the Suppression of the Financing of Terrorism. It is a UN document. Canada has subscribed to it.

This is the problem that arises when legislation is vague. The problem is now before the Supreme Court of Canada. I argued it on behalf of the Canadian Bar Association, although I am not appearing for them here.

Our concern at the Canadian bar is that there should be no removal to torture, but others have said this bill is too vague because it does not define terrorism. It could be anything.

I do not know what the court will decide, of course, but it could decide that it is too vague. These are the sorts of problems you get when legislation is not carefully drafted or when the government overreaches itself.

I would encourage you to at least look at the definitions that are out there. You may have some debate about whether they make sense or not, but they look okay to me. You may want to think about putting one of them into the bill.

Senator Keon: As I listened to your absolutely superb overview of the situation, I thought that you clearly defined three issues. The first is that the bill is unclear as to who should stay and who should be removed. The second is that the bill lacks any clarity as to how we could integrate the Criminal Code with the rules and regulations of immigration. The third is that the bill is unclear as to whom we should prosecute and whom we should extradite.

Would you consider it a major undertaking to fix the bill to deal with those three issues?

Mr. Matas: Would it be a major undertaking for you? No. For me, yes.

Senator Keon: For you.

Mr. Matas: This bill could be fixed in small ways and large. There are many different proposals out there. There are some very sensible suggestions. I am not necessarily saying that about mine.The bar and the Canadian Council for Refugees have made good proposals that would not involve a major redrafting effort.

This bill has already had two lives. It was once Bill C-31, and it is now Bill C-11.

We must remember that this is the first change in immigration law since 1976. It is worthwhile doing it right. Although it is caught up in the debate of the moment, this bill will probably last another 25 years or 30 years. Let's try to get it right.

Senator Grafstein: First of all, welcome back from the wars of Durban. You do not seem to have suffered too much collateral damage. I want to address a comment made recently by the person who organized that meeting, UN Commissioner Robinson. It might assist the committee in dealing with the question of a definition.

She has indicated that this heinous series of acts in the United States comes under the definition of a crime against humanity.

Now you, in your text to the House of Commons, which I just received, indicated that a person should be deemed rejected if they have committed a war crime or a crime against humanity.

The problem at hand is that there appears to be prima facie evidence projected by the President of the United States, and supported today by Prime Minister Blair in his statement in England, that there is not only a crime against humanity, but a systematic network geared to that same process. I am just taking the words of High Commissioner Robinson.

Is the definition of crimes against humanity, which would involve not just the actual action, but plotting, supporting or sustaining such crimes, a sufficient definition that would allow the minister discretion based on the rule of law, as suggested by Senator Roche? We are all wrestling with the question of how we give the minister discretion on the matter, and Senator Beaudoin said the same thing, but within the rule of law.

Instead of trying to come up with a new definition, is the definition of a crime against humanity sufficiently broad to encapsulate what we all want to do, which is to develop a prophylactic against terrorist plotting at home and terrorist actions abroad? Is that good enough?

Mr. Matas: We do have a very detailed definition of crimes against humanity in our legislation now. It is taken from the statute of the Tribunal of the International Criminal Court and it is enacted in the Crimes Against Humanity and War Crimes Act, which is Bill C-19.

I certainly agree with Mary Robinson that these are crimes against humanity. One can also say that some acts of torture are crimes against humanity. However, not every act of torture is a crime against humanity, and neither is every act of terrorism.

Senator Grafstein: I understand the question of torture. I understand that that is an important question, but I am trying to address myself to the clear and present danger. The clear and present danger, essentially, is not from torturers but, as someone put it to me the other day, from ethnic cleansers.

Mr. Matas: Terrorists.

Senator Grafstein: Ethnic cleansers.

Mr. Matas: Let me just focus on terrorists. Many terrorists can be categorized as criminals against humanity. We have a definition of crimes against humanity, and we do not need another one.

However, not every terrorist is a criminal against humanity. We want to catch all terrorists, not just those who fit into the category of criminals against humanity.

I can give you an example of a case in Canada right now, of an individual involved in hijacking a plane in Athens. He was put in jail but got out. There was another hijacking, and he came to Canada. He has not served his sentence for the previous hijacking. He has been here for a long time.

The immigration system cannot get rid of him. He should be prosecutable for the hijacking, but our prosecution system is not working.

We need a system to deal with international terrorists in Canada so that we can prosecute them. We need a definition to do that. We cannot rely just on the definition of crimes against humanity.

Senator Grafstein: As you have analyzed this, that would not be broad enough to encapsulate the current problem?

Mr. Matas: Not every terrorist. It would encapsulate the World Trade Center people, I have no doubt about that, but not every terrorist.

Senator Grafstein: There has been a concern about people having their claims rejected, yet still they are here. We have now heard from both CSIS and the RCMP, and I think from one of the officials in testimony yesterday, that we could have a screen to keep them out, but the real problem is the costs and the surveillance of people that we reject.

In effect, if you have a process that rejects claimants, they are still at large to do their jobs.

Have you given any thought as to how to close the door firmly after the existing process has rejected this claim?

Mr. Matas: To a certain extent, that is what I have been talking about.

Senator Grafstein: Focus just on that problem, because both sides here have been focusing on how to close the door under the rule of law.

Mr. Matas: We have a very fragmented system. It is multi-step, and the reason people stay here after they are rejected is they are caught up in other proceedings. In some cases, the government is just slow in removal, but that is not the main problem. It is mostly that we have a very fragmented system, and frankly, Bill C-11 does not change that. I figured out that someone making a refugee claim could potentially go through 15 different legal steps. If anything, the bill complicates the problem. One proposal I have made is to compress it all and not send people off to five different risk-determination procedures, some of which are fair and some not, and sometimes, someone gets none of them. We just have one risk-determination procedure for everyone, and that is it.

One thing that has always befuddled me over the years is why the Immigration department, year after year, in legislation after legislation, always devises systems that are so complex, rather than just simplifying matters. I can understand complex and fair, and I can understand simple and unfair, but I do not understand why it continues to produce complex and unfair systems. It is the worst of both worlds. They are pursuing inconsistent goals, or trying to pursue different goals at the same time. I have written a paper on that. My answer is, we could change this bill to make the process quicker, get people out of here sooner, and be fairer to everyone involved.

Senator Grafstein: You have not given us any specific amendments in your comments. You have dealt with questions of principle. Do you have any specific amendments you wish us to look at?

Mr. Matas: I did do two papers. I have not drafted amendments.

Senator Andreychuk: I think I understand all of your points about the complexity of the bill and the failings of the system, but that "system" is an immigration refugee. You have also said clearly that crimes against humanity, and other issues that have been defined, are in Bill C-19, but it has never been used.

With September 11, the urgency seems to be to get at terrorists, a totally different category. Does public fear not have to be addressed in a separate initiative to attack terrorism, most notably, through the Criminal Code, to give effect to those international conventions on terrorism that we have signed and ratified? Furthermore, the present definition of terrorism in the CSIS act is limiting. Could it therefore be dealt with under the rubric of national security? I know you are saying simplify it and put them all together, but before we can simplify, we need to identify the terrorist issues and the shortcomings. Whether we then blend everything together, or whether we have a separate terrorist initiative, is of concern to me.

Mr. Matas: I agree with that. We do need to take a separate initiative. It does not necessarily mean a separate piece of legislation, although it might. We have to look at this issue now. Part of my concern with Bill C-11 is that we are not looking at it. We are going ahead with what was designed before and saying this is our response. If we do everything we were going to do before and say this is our reaction to what happened at the World Trade Center, it is no reaction at all. Therefore, we do need that sort of initiative.

Senator Andreychuk: When I was working in this field, one of the troubling things from the departmental point of view was the directive indicating we do not want anyone coming in who has been associated with an organization that is terrorist or uses violent means. That organization always had a military, or executing, wing and a political wing, and it would be someone in the political wing who would "see the light," if I may put it that way, disavow that organization and then seek refugee status or immigration status in Canada.

Did we ever sort out, or are we sorting out appropriately, that any linkage to that organization at any time taints claimants in the refugee process, or are we making the distinction that as long as claimants did not employ violence, they would still be considered after disavowing the objectives of that organization?

Mr. Matas: The legislation right now prohibits entry to people who are members of a group that employs terrorism, even if they themselves have not committed terrorist acts. That particular component of the legislation is another issue in the Suresh litigation. The issue is whether it violates the right to freedom of association in the Canadian Charter of Rights and Freedoms.

It is a problem that the court has to deal with because Parliament has not confronted it squarely, or Parliament has set up the problem by appearing, at least superficially, to raise the question of whether the right to association is violated. We do have some fundamental human rights principles which we must keep in mind at all times, not simply for litigation purposes, but because we believe in them. We cannot penalize people for their opinions or their associations. If they are involved in a crime, or support or incite a crime, we can deal with them, but if they are just members of a group and they have an opinion, it is their right.

Senator Robertson: After September 11, the whole issue of security has been swirling around us, and other countries, ever since. Some comments made by the minister implied that if the Senate were to hold up this bill, it would be inhibiting her in tackling the security of the country. We read that in the press and hear it from witnesses.

Members of the Canadian bar told us this morning that nothing in this piece of legislation that is not in the present legislation would improve our security. What is missing is sufficient funding to make sure that the present legislation is administered properly. If this bill will improve the security of the country, we do not want to be accused of stifling it, but if it does not, then where are we?

Mr. Matas: The bar is right. I do not say that just because I am a member.

The terrorism provisions in this bill are not that different from the terrorism provisions in the present act. The changes have not come about in those provisions. They have come about in other places. This bill was not designed with terrorism in mind because terrorism was not in the forefront of the public consciousness at the time it was drafted. I believe you can legitimately hold this bill up - not to stop the fight against terrorism but to help the fight against terrorism. We need to strengthen the anti-terrorist provisions in the bill, and they can be strengthened.

Senator Prud'homme: I was here earlier and I still have the same question. Most of my colleagues have touched upon my concern. It is the agony that we went through, internationally, for 38 years in an effort to define the word "terrorism." We have not come satisfactorily to the point of knowing its definition exactly. I share Senator Robertson's view that people want something.

I went through a crisis called the War Measures Act in 1970. It did not stop me voting for that bill, after long hesitation. I am under the impression that we feel the same kind of pressure now to pass this bill, otherwise we senators will hold up security. I must remember that it is written in the Senate that orders exclude haste and precipitation. I believe that is what you were telling us earlier in your view of the Senate. It is an old Roman principle that order excludes haste and precipitation.

We also have another long debate about defining "freedom fighter." I know you know my views, and you know that I know your views. In the past we have clashed with each other and we have agreed with each other. At this time, under the cover of terrorism, we are trying to include many other causes that have nothing to do with what we are trying to achieve today by protecting Canadian citizens and giving them the assurance that their government and Parliament are united in their determination. However, we are not under the pressure that in order to satisfy public opinion we are ready to give anything away that already exists.

Do we not have enough to deal with concerning what is on the table - these horror stories that took place in New York? Where do we stop between people who use the word "terrorism" and cover up for all freedom fighters in other parts of the world?

Mr. Matas: Of course, that is the problem you get into when you do not have a definition. It means different things to different people. At the end of the day, the people who will apply the provisions of the Immigration Act will be officials of the Department of Immigration. Unless they are given clear instructions, they will do whatever they want and we will not get a consistent application of a law.

We need to be clear so that we can give directions about what we are trying to deal with to the people who are implementing the law. Some people will let terrorists go through because they do not think they are terrorists; other people will stop people from coming in who are not terrorists at all because they think they are terrorists. To avoid that sort of abuse, you need to have a definition.

Senator Prud'homme: How do we differentiate?

Mr. Matas: One way of differentiation is through a definition. The other is through application of the definition on a case-by-case basis. The United States has defined "terrorist states" and "support for terrorist states," and there are particular organizations that are identified as terrorist organizations. One can go through listings of terrorist supporting states, one can go through particular organizations and say these are terrorist organizations, and it is probably worth doing that. I suspect that to a certain extent there is some security work that is being done that way right now.

It is true, there are some issues on which we disagree, but we both agree that it is important to have a clear, specific definition.

The Chairman: Mr. Matas, thank you very much for coming. As usual, you are a terrific witness and your level of articulation is helpful to us.

Our final panel consists of Andrew Brouwer, former manager, Research and Policy, Maytree Foundation; Mary Jo Leddy, who is a member of Ontario Sanctuary Coalition, and Marnie Hayes from Neighbourhood Legal Services for the Coalition for a Just Immigration and Refugee Policy.

I will ask Mr. Brouwer to begin.

Mr. Andrew Brouwer, Former Manager, Research and Policy, Maytree Foundation: Honourable senators, Maytree Foundation is a charitable foundation with two main objectives that are relevant here: improving access to regulated professions and trades for immigrants and reducing or eliminating delays in the landing process for convention refugees seeking landed status in Canada.

I will focus on a few key points in the Maytree brief, which I hope you have all received and might have a chance to look at later. Before I start, I would like to say a couple of words about context.

When I appeared before the House of Commons standing committee on this bill back in May, I presented Maytree's position that the bill represented a lost opportunity to do justice - to refugees seeking protection, to immigrants looking for a new life here, and to Canadian society at large. We still believe that the bill fails to do that.

Some of our concerns expressed to the House committee were implemented in the amended bill, so we do think the bill has been improved. However, it has not gone as far as it could have. Therefore, we are definitely grateful for this opportunity to talk to you about our concerns. We urge honourable senators to take the time that you need to really give some sober thought to the long-term implications of what is about to happen in this bill.

We have three major issues with respect to Bill C-11. Number one, the bill fails to fully respect Canada's international human rights obligations. We were pleased that the standing committee adopted clause 3(f) after the last set of hearings, which required that the bill be applied in a manner consistent with international human rights treaties that Canada has signed. This will probably prove to be useful but primarily to litigators. They will need to litigate these rights, largely because the act itself does have the occasional reference to one of the treaties but usually it is only partially implemented.

One of the most disturbing examples of this would be clause 115(2), which is the exception to the principle of "non-refoulement." The bill would allow Canadian officials to return convention refugees, who have been determined to be in need of protection, to places where they will face torture and persecution. Moreover, the bill gives officers the right to do that without even providing a hearing for the refugees. This is a direct and serious violation of one of the most important elements of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, article 3(1) and possibly the Charter, and fundamental principles of administrative law requiring a fair hearing, especially where there are substantive rights at stake.

Number two, the bill fails to eliminate the problem of legal limbo. As many of you know, convention refugees who do not have identity documents from their country of origin sometimes face very long delays in getting their landed status. Delays can last three years, six years, ten years, and sometimes even longer.

The delay in getting landed status, if you are just a convention refugee, can have very severe impacts on families. Without landed status, refugees cannot bring family members, including children and partners, to Canada from overseas. They are unable to travel outside of Canada. They are unable to get loans to go to university or college. Many convention refugees in Canada have graduated from high school and are sitting on their hands. It is often very difficult to get a good job if you are a refugee. When you do not have landed status, you are denied a voice in the democratic process.

The major cause for the delays, the document requirement in the current act, has been roundly criticized by churches, by human rights organizations, by MPs, by senators, by many different groups; yet Bill C-11 fails to do anything substantive to change that situation. The department is apparently working on regulations on the issue, but to date we have been unable to get any assurances that they are actually going to eliminate the problem.

In this area, Canada is directly in contravention of the 1951 Convention on Refugees. Sections 27 and 28 both require that Canada provide identity documents and travel documents to undocumented refugees in Canada. It is an obvious requirement. The department knows about it. I do not know why they are not doing anything about it.

Finally, we need to build in some accountability mechanisms for the immigration system at large, especially in the context of what you were talking about with Mr. Matas previously - the situation of those who have been accused of being terrorists. It is absolutely crucial that anyone implementing or administering legislation or regulations around immigration be subject to some strong accountability and transparency mechanisms.

CSIS has a Security Intelligence Review Committee, SIRC, which in the new bill will have a role in reviewing security certificates issued against citizens. The right to review by SIRC has been removed from permanent residents, and it is not there for convention refugees at all. We would argue that should be reversed. That is the wrong way it should go. As well, and I think someone will address this later, SIRC can take complaints from individuals in Canada. It conducts long hearings. In a case we were both involved in, there were five months of very careful hearings by Bob Rae. At the end of it, he issued some strong recommendations about what should change. Those recommendations were completely discarded, and nothing has happened on the basis of the recommendations. A watchdog has to have teeth. That is our key concern.

Accountability is also critically important in other areas of the immigration process. In our view, there should be a public watchdog to hear complaints about all elements of how people using the immigration system are dealt with by the department. A watchdog should have the power to discipline, but it should also play a role in the development and oversight of legislation and regulation, particularly in the context of new legislation like this. It is important for there to be a body that is outside and that can take a global view of how the legislation is working, determine where the gaps are and have a recognized role in fixing it.

Ms Marnie Hayes, Neighbourhood Legal Services, Coalition for a Just Immigration and Refugee Policy: Mr. Chairman and senators, we of the Coalition for a Just Immigration and Refugee Policy thank you for asking us to present to you this afternoon. I hope that you have a copy of our brief position paper on Bill C-11. I understand you were given copies of the brief with 51 recommendations. I will not be going through the brief, but there are four specific recommendations in the brief that we would like to highlight.

I hope you also received a list of the coalition members. You can see that we are a grassroots coalition. We have a broad-based membership ranging from legal clinics to health centres to refugee and immigrant organizations, faith organizations, women's groups, et cetera.

I have had the opportunity to be here all afternoon and hear many of the witnesses give their presentations. Our group echoes many of the concerns of many of the organizations that were here today.

The first concern that we have is the issue of September 11. I know you have heard a lot about that, but context is everything in many circumstances. We discussed also in the coalition the issue of events that occurred after the bombing of Pearl Harbour, that being a major moment in history where rather than there being sober and calm reaction, there was a huge emotional overreaction by people in power, and it led to, as we know, the internment of Japanese Americans and Canadians. When we look back, that is a situation that we would never allow again.

We caution you. We cannot over-stress the importance of not just taking this bill and pushing it through, as the pressure is on you to do. Really reflect on what is going to happen next. One of the things that could happen next is to wait. The hysteria of the moment is acute, and it results in the victimization and the criminalization of innocent immigrants and refugees. They will get caught in the crossfire in the ultimate result. It is very disturbing, with huge ramifications. We caution you in that regard.

I point out, as many people have said today, that the refugee determination system is being focussed upon here, whereas perhaps that is a red herring. Perhaps there is a new law that needs to be created. With respect to the issue of whether or not there are existing safeguards in the current act, the bottom line is that more money has to be put into the enforcement and the carrying out of mechanisms that already exist. We do not need new Draconian laws, but we do need to look at what is in place and perhaps how we can enforce what is in place.

Having said that, and having asked you not to do anything, in the alternative, as a coalition we did want to highlight four specific recommendations in our brief in the event that the bill does get opened up or in the event that you are sympathetic or in solidarity with our views in this regard.

The four specific recommendations are: First, children should never be detained; second, people who are on social assistance should be allowed to sponsor close family members; third, permanent residents should never be deported under any circumstances without access to due process; and fourth, people should be allowed to make more than one refugee claim in their lifetime. Currently, under Bill C-11, there is a once-in-a-lifetime rule. I will get into the details.

Canada is a signatory to a number of United Nations conventions, one of them being the Convention on the Rights of the Child. The bill is very good. In fact, this was mentioned at the standing committee. The convention says that the rights of the child shall be the primary consideration in any dealings with children. As Mr. Brouwer mentioned, the standing committee amended the bill to include as an objective that this bill will follow the UN conventions, an objective of compliance with international human rights instruments to which Canada is signatory. We said that, and it is there in the objectives. Now, if you look in the bill, there is no compliance with that. There is no follow-through with that.

The standing committee looked at the issue of the detention of children, which has raised many concerns. They said that we must take the best interests of children into consideration when we detain them. We say, "No. Children should never be detained under any circumstances." We have children's aid organizations; we can put children into custody.

The Chairman: I am concerned about not having an opportunity to ask Mr. Brouwer questions. You have made the point very clearly. Please move on.

Ms Hayes: The second issue is the denial of permanent residents and Canadian citizens to sponsor close family members because they are on social assistance. This is a straightforward issue. Right now we know there is a huge backlash against people on social assistance and I believe the bill reflects that. Unfortunately, innocent victims are caught in the crossfire. Again, that does not follow through with the United Nations instruments that we have signed.

I have a client right now who has Parkinson's disease. He is in his late 50s, from Colombia; he is with his eight-year-old Canadian citizen child here and is sponsoring his wife from Colombia. He survives on disability support benefits. His application to sponsor his wife was allowed on humanitarian and compassionate grounds. The manager in the office in Bogota allowed that. His wife, a hairdresser in her home country, will likely come to Canada and she will support the family and he will likely get off social assistance. The family will be reunited. The eight-year-old daughter will be with her mother again. We are cautioning you that the bill disallows all people on social assistance to be reunited with their family members. Please look at that. That is a serious thing.

Third, I would direct you to recommendation 24 in our brief, in regard to the deportation of permanent residents without access to due process. Again, children will be affected if there is an automatic deportation. We are talking here about an automatic deportation of a person who is convicted of crime for which they spend more than two years in jail. We say that is unfair. Under the current system, that individual has the right to appeal before the appeal division of the Immigration and Refugee Board and let them decide whether or not the circumstances merit the Draconian measure of full deportation.

Finally, the entire refugee advocacy community is very concerned that this bill allows refugee claimants only to make one claim in their entire lifetime. This means that even if they go back to their country, and 10 years later there is a change in country conditions, even if they did not mention the fact that they were sexually abused or assaulted because their cultural norms would not allow them to do that the first time, they will never have the chance to do that again in a second refugee claim. I am surprised that other people have not raised that here. The events of September 11 went ahead of that, but it remains a large concern.

Ms Mary Jo Leddy, Member, Ontario Sanctuary Coalition: Honourable senators, thank you for the invitation to speak with you today. The Ontario Sanctuary Coalition was formed 10 years ago to protect innocent refugees whose lives were in danger because they had received deportation notices for countries where they would be subjected to arbitrary torture, detention or death. We hid these refugees in church buildings and worked and lobbied the government until the then Prime Minister and Minister of Security recognized their just cause.

In the process of defending refugees, we have learned a great deal about with the immigration system - not only from the top, but from the bottom as well. Members of this coalition belong to main line churches. They are not some leftist radicals. They are ordinary Christians, people in parishes, who have simply been faced by another human being whose life is in danger. They could be, in another time and place, compared to what have been called the "righteous gentiles."

We anticipate that Bill C-11, if it goes forward as it is, will make our task ever more compelling. Why? Because Bill C-11 seals the two-tier system of justice that has been growing in this country for some time. Citizens and non-citizens are governed by two different sets of laws and regulations, by two different judicial and police systems, and can be placed in two different sets of jails. In another country, this would be called apartheid.

A refugee may be picked up without a warrant, may be detained indefinitely, may be held by guards from a private security company in an odious detention centre. He or she may be charged with being a terrorist and may never see the evidence of such a charge before being deported. In such cases, the immigration system, acts as prosecutor, judge, jury, enforcer and executioner.

In this country, there are appropriate watchdogs where Canadian citizens can complain, for example, about police brutality, conditions in prison, violations of human rights and the law. There are no effective ways for immigrants and refugees to complain about the system that affects every aspect of their lives.

The most dangerous aspect of Bill C-11, as has been said, is that it contains no definition of what terrorism means or what membership in such a group means. Such power to decide is left to individual officers - immigration officers or CSIS - in the front-end screenings. It is an awesome power. Once that decision is made, it is almost impossible for refugees to dispute it within the system, in a court of law, or in the court of public opinion. It is unrealistic to think that the Senate can rectify such a fundamentally flawed piece of legislation. The appalling event of September 11, and the long shadow cast by it makes our effort to come to clarity ever more difficult but never more necessary.

It would be a step forward for all of us to recognize that we do have our own form of apartheid in this country. There are enormous social, political and economic costs, for allowing such a system to go forward. It affects people's ability to become citizens, to be responsible for this country and to contribute to it. I speak to you as a member of the Order of Canada here.

Refugees arrive in this country with so much hope. However, if they are forced to live outside our system of justice for a protracted period of time, that hope becomes a broken-winged bird that cannot fly. We learn about justice when we treat others justly and we ourselves are treated with justice. You can remind the government that this immigration bill is not just about refugees; it is about future citizens.

We must respond to the real threats posed by terrorists in this world, and Bill C-11 attempts to do this. I agree with the spokesperson for immigration workers when she said that unless many more people are hired, this legislation would not work. The problem is not with the legislation. It is with the number and the kind of people that must implement it. Every refugee I know - and I have lived with refugees for 10 years and worked with them - would be delighted if there were more immigration workers because the system is so overburdened.

Officers become mean and careless, just to survive. Files can sit for years, unread and unsolved. Someone's children are in those files while growing up as orphans in a refugee camp. Some one's desire to study is in those files while they are wasting away in a coffee shop. Some one's hope to start a business is in those files while wasting away in the line for welfare.

However, it would be disastrous for this government to throw more money at Immigration Canada or CSIS in an effort to catch more terrorists. Both of these systems need a complete overhaul - a shaking up - if they are to become effective.

I had the enlightening experience of sitting through six solid weeks of a hearing when two refugees had the courage to complain about being terrorized by CSIS. I listened to many immigration officers and CSIS officers testify. I was prepared to be impressed, but I was appalled at the lack of competence in these people. They did not know the language of the countries for which they were responsible. They did the not know the history. They did not know the geography. They mixed up the acronyms of political parties. I was appalled.

Some of this incompetence is due to lack of staffing. Most of it stems from a lack of accountability. Incompetence breeds when there is no accountability. Neither in immigration security nor CSIS are there outside points of accountability.

If you accept this bill as it is, you must take upon yourselves the responsibility for ensuring that these systems become competent. If they are given more power, there must be some form of accountability. If not, refugees will be submitted to a security apparatus as ineffective as it is arbitrary, to a kind of police state that so many of them fled.

Finally, our coalition wants to address you as senators of this country. You have an enormous responsibility at this point in history. Our government is under enormous pressure. It is under pressure to build a security perimeter around the continent. It is under economic pressure to allow the free flow of business between Canada and the United States. This combined pressure on our government - and I appreciate the pressure - is pushing us towards some form of political union with the United States in which our sovereignty over our immigration policy and our foreign policy will be severely weakened.

In another country, this would be called annexation. We would become a virtual nation, a shell of a nation, with quaint cultures. If George Grant were alive today, he would write another Lament for a Nation.

Until the United States ratifies the Geneva Convention, the Convention on Torture, and the Convention on the Rights of Children, it has no right to suggest to us how to run our refugee and immigration policy. I do not believe that the United States has earned the right to lecture us about how to handle terrorists. As long as it owns and operates the School of the Americas in Fort Benning, Georgia, as long as it trains paramilitary and military people in the arts of terror, assassination and torture, it has no legitimacy in this regard. The U.S. has no right to accuse us of being a haven for terrorists.

We have been a haven. We have been a haven for hope for desperate refugees who fled American terror in Latin America and elsewhere. Throughout the 1980s, while the United States was denying that there were any human rights problems in Central America, we were accepting people from Guatemala, El Salvador just as we accepted people from Chile and Argentina. We accepted Americans who fled the Vietnam War. These refugees hoped in Canada, as much as we do now.

The annexation of our country, senators, must not be allowed to happen in quiet consultations. Our country is too important to be left to committees. You have been entrusted with a great task. You have it within you to take the debate about the future of our country to the Senate, to the House of Commons, and to the people of this nation.

Too many people have died for this country. So many have lived for it, and for everything that it represented. It is a good and decent alternative in North America.

Senator Wilson: Mr. Brouwer, you talked about the legal limbo of refugees. Clause 31(1) says, "A permanent resident and a protected person shall be provided with a document indicating their status," which I gather is what you are after.

However, in clause 32 it mentions, "The regulations may provide for any matter relating to the application of sections 27 to 31 ...".

Could you comment on what seems to be a contradiction there?

Mr. Brouwer: Yes. There have been some back and forth discussions among a number of different organizations and the department about the implications of the status document under clause 31(1). Initially, the status document was only going to be guaranteed to landed immigrants and certain convention refugees would be eligible.

After the standing committee hearings and other committee hearings, they made the document available to all. However, one point on which the department has been very clear is that the status document is not an identity document. It is separate.

Senator Wilson: What is it then?

Mr. Brouwer: It replaces a current document that tells people what status they have. The way they describe it, it is a description of your status in Canada, not a description of who you are. It does not really help the refugee who does not have documents from home and is seeking to get landed in Canada.

As this is framework legislation, much has been left to the regulations. It might be possible to get a change in the regulations so that the regulations make it clear that it does work that way. The way regulations go, at least at the moment, the department pretty much does what it wants. At this point, we know they have no intention of allowing it to be an identity document.

Senator Wilson: If the bill were passed with clause 32 as it stands, this committee would have no control over how that is interpreted.

Mr. Brouwer: No. There has been some discussion about what you, as senators, should do with this bill, whether you should pass it as is or hold it back. The danger in holding it back or making changes is that it would need to go back to the House and would be completely opened up with more aggressive measures being introduced there.

I do not know how these things work. I do not know if you can do any horse-trading. Perhaps you can say: sure we will pass the bill as is, but we want a finger in the regulations to ensure that some things that you did not do right in the legislation will happen in the regulations.

Senator Wilson: Is this not a contradiction with the earlier statement that the act would comply with international human rights instruments to which Canada is a signatory?

Mr. Brouwer: It is one of the many.

Senator Wilson: That is a clear contradiction in this bill.

Mr. Brouwer: I am not sure how this works. I fear that anytime the legislation clearly states that it intends to violate international law, it might be that the objective statement will not hold water. I do not know.

The Chairman: Ms Hayes' paper had 51 recommendations and picks up a point that Mr. Brouwer just mentioned. Have any of you looked at the extent to which a pattern has developed in your concerns? There is much repetition of the comments, which is fine. Have you looked at the issue in respect of the extent to which your concerns could be met through the regulations under the act, rather than through the legislative change? I was struck a moment ago by a point Mr. Brouwer made, which is that the mood is now quite different than it was when the House of Commons considered the bill. Therefore, there is sometimes a risk in opening up the debate, because it turns away from the direction that you have expressed. It introduces an element of risk that after the fact you might not want to take. It is the sort of criteria that often leads people to reach an agreement on the courthouse steps rather than put the case before the court to see what happens.

Therefore, I ask whether many of your concerns might be addressed through the right set of regulations, which takes the risk off the table. Is that possible? Have you not thought about that and considered it?

Ms Hayes: Briefly, as we all know, regulations happen behind closed doors, so it depends. We are talking about the political climate right now, and that could be quite different next week. Yes, perhaps at certain times regulations could change to reflect what we are asking for, because the political climate allows it. But then if the climate changes, you could be back to square one. That is why we are asking that these items be enshrined in the law itself.

The Chairman: I understand, but I am searching for a way to minimize the risk while achieving the objective. What about a process in which the regulations in a draft form were originally available for public consultation before they were finalized?

Ms Leddy: That is happening. There is some consultation at all levels around the regulations. However, at the heart of this so-called "framework resolution" is that much is left both to regulation and to discretionary moves on the part of individual officers. That is my point.

When you see them up close and personal, you would never do this. It makes the question of the legislation critical, or some kind of change within the immigration system itself.

In fact, there is a definition of "terrorism" in the act governing CSIS, and there will be one in the act governing financing of groups. It seems to me that it would make sense to at least have the same thing operating in all three acts. That would mean you would not have to open legislation to do that.

The Chairman: Right.

Ms Leddy: It would make it coherent. Any definition would go a long way to addressing some of our concerns, because right now, it is up to a single officer. It is just like this, "you to the left, you to the right, you look like one, you do not." I am not exaggerating, and I say this out of great concern for the country. We will not catch the real people.

Mr. Brouwer: Concerning your original question, much can be dealt with in the regulations. However, perhaps there is a role for this committee to push for the establishment of some sort of a mechanism for public review. The new bill includes, in clause 5, some sort of committee hearing, but that is open. It is not up for a vote in the House. One two-hour hearing about some new regulations does not mean much.

The Chairman: You are talking about a meaningful process.

Mr. Brouwer: Right.

The Chairman: Thank you. We appreciate your taking the time to appear before us.

The committee adjourned.