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

Issue 29 - Evidence

The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-11, respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger, met this day at 9:00 a.m. to give consideration to the bill.

Senator Michael Kirby (Chairman) in the Chair.

[English]

The Chairman: We will continue our hearings on Bill C-11, respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger.

As you well know, the Honourable Elinor Caplan, Minister of Citizenship and Immigration will present today. Accompanying the minister from the Department of Citizenship and Immigration are Deputy Minister Michel Dorais and Assistant Deputy Minister Joan Atkinson, Policy and Program Development. Minister Caplan, please proceed.

[Translation]

The Honourable Elinor Caplan, P.C., M.P., Minister of Citizenship and Immigration: I am happy to be here today and to participate in your discussion of Bill C-11, respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger.

[English]

I am grateful for this opportunity to join members of this committee in your review of Bill C-11 in respect of the Immigration and Refugee Protection Act. The legislation before you has been brought into sharp focus by the atrocities of September 11. These appalling terrorist attacks have shocked and horrified us all. They have forced us to take a hard look at our most basic laws and procedures.

Canadians are looking to us for reassurance that we can protect the health, safety and security of our society. They are also looking to us for reassurance that we can do so without abandoning our core values and traditions, which begin with the welcome we offer to immigrants and refugees from around the world.

I am proud to say that this proposed legislation is very tough for those who pose a threat to public security and for those who do not respect our laws. However, it also affirms the importance of immigration and refugee protection in the future in our country.

I want to discuss with you some of the key provisions in this respect, but first I will speak to an important point that was raised during the second reading debate on September 25. I believe it was Senator Murray who asked whether the government currently has the power to deal with people seeking admission to Canada who pose a security threat. My answer to that question is, yes, we have a range of security provisions under the current law.

I understand that Senator Di Nino, before this committee, subsequently asked the question: "If we have such provisions now, why is this new bill so urgently needed?" In response, I would like to say that we are working to the best of our ability with the tools that we have to maintain border security and the safety of Canadians. I am extremely proud of the dedication and professionalism of my officers in Canada and around the world, who are working with these tools every day. This bill contains new and important measures that are both critical and urgently needed.

I understand as well that some have questioned this urgency, and they have asked why the bill is needed now if it cannot be implemented immediately. I am certain that most of you know that it is only with the passage of this bill that the authority is created to pre-publish the new regulations that must accompany the bill. Delaying the bill, therefore, delays the regulations and their joint implementation, along with the implementation of these new critical measures.

I might add that the drafting of the regulations has been underway for some time, as we have been proceeding with an open regulatory consultation process alongside the progress of the bill. Consultations have ensued ever since the tabling of the bill in the House of Commons last February and, indeed, the House of Commons Standing Committee on Citizenship and Immigration has contributed significantly to various aspects of the legislation and draft regulations through its own consultation process.

I remain committed to this open and transparent process for the regulations, which will provide for input from all interested stakeholders, such as those you have heard in the past few days, and from the committees of both Houses of Parliament. I want to be clear, however, that, because this work has been proceeding all along, we will be ready to pre-publish the regulations soon after the bill proceeds to Royal Assent.

I have one final point of fundamental importance before turning to the bill itself. Some have argued that in response to the terrorist attacks in the United States, Canada should invoke the notwithstanding clause of our Charter of Rights and Freedoms in order to override certain Supreme Court decisions pertaining to our refugee determination process. I want to tell you today that this is not on.

The Prime Minister said it best in his speech in the House of Commons following that horrific terrorist attack when he said that we must strike back against terrorism, but in this difficult struggle, we must not abandon our values and who we are. Our Charter of Rights and Freedoms expresses our values. It reaffirms who we are, and it commits us to due process, which is only to say, fair treatment of those who come to us claiming fear of persecution. I will state clearly for the record that we will honour that commitment.

Of course, I understand that you have also heard witnesses argue before this committee that we should go significantly beyond what the Charter requires, particularly in respect of serious criminals, by offering them additional steps, procedures or protections extending beyond our Charter commitment to due process. Here, too, let me tell you: No way.

Serious criminals and threats to Canada's security will face provisions as tough or tougher than anywhere in the world, while we respect our Charter of Rights and Freedom. We will crack down on criminals and security threats and those who would abuse our laws, but we will continue to welcome genuine refugees, strengthen family reunification and attract the skilled workers that Canada needs. This is the balanced approach that we have taken in this bill.

What are the key provisions that Bill C-11 offers?

We are all too well aware that the recent attacks in the United States have raised serious issues of public security for all countries in the world. Not least among these issues is that of border security.

For some time already, we have been aware of the growing international problem of human trafficking. These and other threats to public health, safety and security are global in scope and covert in nature. If we are to function with integrity and maintain the confidence of Canadians, our immigration and refugee protection systems must have effective instruments to enforce the law.

You have heard testimony from the RCMP and CSIS that Bill C-11 will strengthen our ability to prevent security threats, war criminals and those associated with organized crime from entering, transiting through, or remaining in Canada.

The bill creates a new category of inadmissibility for those who commit fraud or misrepresentation on immigration applications. It streamlines the refugee determination process and allows us to exclude serious criminals, security risks, human rights violators and members of organized crime from the process altogether by suspending or terminating their claims.

I would also like to address the point that has been raised in your discussion about the issue of access. Some have argued that Bill C-11 offers more layers of access to decisions and decision-makers for refugee claimants than for permanent residents. Let me correct this impression. Access to the system has been diminished only for serious criminals and security threats and, yes, this is so even if they are permanent residents.

Bill C-11 will maintain discretion for immigration officers to take individual circumstances into account. We will uphold due process, but we will be able to remove serious criminals who are not Canadian citizens more quickly. That is a very important provision because, I will tell you quite frankly, under the current law it takes too long.

The bill also contains new offences for assisting in obtaining immigration status by fraud or misrepresentation and for smuggling and trafficking in human beings. Those guilty of this latter offence could receive sentences of up to life in prison, and a $1 million fine, or both. This puts penalties for human trafficking in line with those for drug trafficking. As you have heard from witnesses, it allows us to send a strong message to our courts.

Bill C-11 strengthens and clarifies provisions for detention. It includes a new provision to detain refugee claimants where we have serious concerns about their identity and they are uncooperative in providing assistance. The accompanying regulations to Bill C-11 will also include important factors to be considered in the decision on release from detention, which will result in a more transparent process.

I know that members of the committee have heard concerns about the requirement in Bill C-11 that refugee claimants be referred to the IRB within 72 hours. Let me explain this provision.

When someone arrives in Canada and makes a refugee claim, an immigration officer first determines his or her eligibility to make that claim. At present, this determination can take up to six months. Bill C-11 requires that it be made within three working days. I understand that you have been told that it is not possible to complete a full review of security within 72 hours. This is true, and, in fact, there is no requirement in Bill C-11 to do so. The bill provides for the suspension of the process as security risks become apparent.

It is in our interest to see that both security screening and the refugee determination process begin quickly. Those who pose a security threat will be screened out, detained or removed. The rest, which is to say the majority, of claimants will not be subject to lengthy delays at the beginning of the process.

Mr. Chairman, these and other measures in Bill C-11 will contribute to fair, efficient and effective procedures to maintain the integrity of Canada's refugee determination system.

Prior to taking your questions, let me now turn to provisions in Bill C-11 concerning another kind of security. I refer to our prospects for economic growth and prosperity.

Ours is a country that was built by immigrants and refugees. People from around the world have come to Canada in search of old dreams and new opportunities, often in flight from terrible persecution, have helped build this country. Mr. Chairman, they are us. They are our ancestors. They built our communities. They wove a rich and diverse social, cultural and economic fabric, and this is one of the greatest sources of strength of our country. It is one of the greatest sources of our strength in the world.

However, we are growing older and having fewer children. Currently, over three-quarters of Canada's labour force growth comes from immigration. In merely ten years or so, immigration will account for all labour force growth in Canada. In merely 20 years or so, all of Canada's population growth will be from immigration.

Canada is not alone in this demographic situation. There is an emerging vigorous global competition to attract the world's best and brightest.

Bill C-11 and its accompanying regulations will allow us to maintain our competitive edge. It will introduce a new points grid to shift the current focus on skilled worker selection from experience in a particular occupation to more flexible and transferable skills. Regulations will take steps to attract skilled tradespersons, as well.

In response to an issue raised by Senator Poulin, new regulations will also strengthen our live-in caregiver program to ensure that caregivers will be fully aware of their rights and responsibilities before they arrive in Canada. In addition, by requiring a contract between caregivers and their employers, we will ensure that there are clear avenues of assistance should concerns arise.

Finally, Bill C-11 reaffirms yet another form of security of great importance to Canadians, and that is family reunification.

The regulations will provide specific measures to speed up the reunification of families, including the creation of an in-Canada landing class. It will simplify applications for spouses, partners and children already in Canada legally.

I would like to address for a moment a concern that Senator Kirby raised by confirming that grandparents will most certainly be included as important members of the family class. That family class definition will be in the regulations.

Let me close by mentioning the issue of transitional provisions that was raised before the committee earlier this week. In particular, I would like to assure you that applicants who have had an interview under the current law will be processed according to the current law.

I should point out, as well, that with the proposed new regulations for skilled workers and family members, many applicants who will not have been interviewed under Bill C-11 when it takes effect will likely benefit from a more open and generous rule. In addition, it is extremely important to recall that visa officers will continue to have the discretion to approve individuals that they consider able to successfully establish in Canada despite an inadequate assessment under the point system. Officers will also maintain their discretionary authority to approve cases on humanitarian and compassionate grounds.

I conclude, Mr. Chairman, by noting once again that we have all been profoundly affected by the recent terrorist attacks in the United States. It is clear that we must take steps to protect public security, but it should be equally clear that we will not try to turn Canada into a fortress.

Terrorism is an international problem that requires international co-operation, intelligence sharing and international solutions. The most effective strategy, of course, is to apply knowledge and intelligence in order to prevent security threats from reaching our borders. Should they reach our borders, however, Bill C-11 gives us important new tools to deal with them quickly and firmly.

Bill C-11 was not developed in isolation, nor will it be applied in isolation. It reinforces laws on organized crime and terrorism. It supports existing procedures for information and intelligence gathering, including the ability to protect sensitive information that might hinder investigations. It supports our many co-operative initiatives and arrangements on information sharing and joint security with our closest friend and neighbour, the United States. It will be a vital and welcome addition to our shared efforts to strengthen public security.

I welcome your questions.

Senator LeBreton: None of us will quarrel about the horrific events in the United States in Washington, New York and Pennsylvania, on the 11th of September, and we all know that terrorism knows no borders. Certainly, we, in Canada, cannot hide behind some invisible snow fence and think we are safe from these types of attacks.

The committee sat this week for over 20 hours. We have had many very credible witnesses. There was not one of our witnesses who not suggest serious amendments to the bill, and, certainly, some even suggested that, since it is the first major overhaul of the immigration legislation in over 30 years, we should take our time, study it carefully and make sure that when the bill is passed it will be the best possible legislation that we can have to address all concerns, past, present and future.

With regard to the new slant that has been put on the bill that somehow or other it will be the device that will keep terrorists and people with criminal activities in their minds away from our borders, I will quote Ben Trister from the Canadian Bar Association. When he addressed the serious issues that happened on September 11, he said there was no gap to be filled by Bill C-11 in the area of preventive and pre-emptive detention of security risks. He suggested to us that there were provisions under the existing legislation, and he said it only to underline the point that we, as senators and parliamentarians, should examine this piece of legislation and try to improve it. After all, that is our job in the Senate.

I asked David Matas, a very prominent lawyer in this area, what he would do if he were in our position in the Senate. We are on the horns of a dilemma. The minister and the government tell us we must pass the bill immediately to deal with this new threat. He tells us we should go slowly and take time to examine the bill carefully. He went on to point out the legislation is complex, detailed and multi-step. It lacks fairness in some respects, denies international standards in some respect and drags out proceedings unnecessarily.

In light of all the evidence that we have listened to for 20 hours, how can you, in your statement, put the emphasis on the events of September 11 as the reason for this bill being pushed through Parliament?

Ms Caplan: I said that Bill C-11 is a very important first step. It is one that has been under consideration for some time and it gives my department important new tools, both in streamlining processes and in dealing with a number of areas that simply take too long.

CIC is an important partner with other agencies, but we know how frustrated Canadians are when we read stories about how long it takes to remove people who clearly have either worn out their welcome or should not be permitted to stay in Canada. I understand lawyers do not like the bill because it does streamline and take away appeal rights that allow those cases to drag on beyond what is required by our target. Therefore, to ensure that Canadians have confidence that we are doing things as quickly as possible, the bill must be implemented. I have also said we do not live in a perfect world, and as things evolve, if there are ideas that people have in the future, I am certainly willing to consider them.

The bill should not be held up because it gives us important new tools. I will give you just a couple in a brief answer. For example, we are able to more quickly deny people access to the refugee determination system, in other words, to deny an ineligible person's ability to go to an admissibility hearing where sensitive information can be protected. That is an important new tool.

Streamlining the eligibility determination for refugee claimants is another very important part of the bill because we know that having people wait six months to get to the IRB is just too long. It is important that that security check be done at the same time as the IRB starts to assess the claim. The longer people are here before they receive attention, the less confidence we have that we are doing things effectively.

The last is the authority that the bill gives to arrest and detain criminals and those who pose security threats. That is contained in existing legislation. It is clarified here that anyone who shows up undocumented and uncooperative can be detained. However, we do detain now where we have evidence.

There are a number of new provisions in the proposed legislation, which, we believe, will improve our capacity and give us tools that are not in existing legislation, allow us to streamline and do things in a way that gives Canadians more confidence.

Senator LeBreton: You acknowledge that the existing legislation in fact provides people can do that. The witnesses we had did not argue with that. They made the point that all these things can be done now, but the problem was shortage of resources of the front end.

Ms Caplan: Let me interrupt for a moment because that creates a wrong impression. The existing legislation is very complex concerning our ability to have a danger opinion, for example, and it creates additional other steps in the way we implement danger opinions.

Let me ask the assistant deputy minister to explain how that works and how in the new legislation it will be different. Right now it is difficult for us to deny anyone access to the refugee determination system. The bar for having the evidence to remove them and to deny that access is very high. This proposed legislation streamlines that.

Ms Joan Atkinson Assistant Deputy Minister, Department of Citizenship and Immigration: In terms of the eligibility determination at the front end, Bill C-11 provides a threshold approach to determine eligibility for referring a claim to the board. Under the current legislation, the process is to obtain a danger opinion from the minister, or the minister's delegate, and take that opinion before an adjudicator before we can make someone ineligible.

Under Bill C-11, we have a threshold approach. If someone falls within an inadmissibility category of serious criminality, security threat, war criminal, or persons who have committed crimes against humanity, we take that to an adjudicator who determines ineligibility and excludes the person from the refugee determination process.

As the minister has alluded, we can also suspend a claim in process when we have identified and an adjudicator has confirmed that an individual is a security threat, a war criminal, et cetera. Under the current act, we can only suspend when we are dealing with a serious criminal. These are new and important tools that allow us to streamline the process and to terminate the application of someone whom we identify as a concern.

Senator LeBreton: Again, it comes back to having resources at the front end, does it not?

Ms Caplan: When the bill was passed by cabinet, the department was given significant resources to implement this bill.

Senator LeBreton: Are those technology resources and human resources?

Ms Caplan: Yes. We received resources to implement the new Global Case Management system. We waited until the concerns over Y2K had passed before moving ahead with a new information system. We call it the "Global Case Management" system, which will link all of our department's posts around the world to allow sharing of case information, which is a very important part of this proposed legislation. The proposed legislation is a very important reform of the immigration and refugee determination system.

The other important technology piece, which is in development now, is mentioned in this bill. However, we do not need legislative authority to proceed with it. That is the new permanent resident card for new immigrants. It is a travel document for all new permanent residents and new immigrants. That information technology piece is an important part of our plan.

Senator LeBreton: On Monday, the Chair of the IRB, Mr. Peter Showler, in response to my question about backlog, said that he does not like the word "backlog." He called it "inventory," I think. He actually told us there were 34,000 claims in the inventory, or backlog. I asked him what percentage of the 34,000 claims were abandoned, and he said 15 per cent.

Does this bill have specific measures to commit resources to eliminating the backlog? According to newspaper reports, these people are drifting around the country and no one seems to know where they are.

Ms Caplan: It is important to understand how the process works. I mentioned that it sometimes takes six months to refer to the IRB. The IRB then has its procedures for setting hearing dates. Often, people will ask for a delay of the hearing date while they prepare.

In this enormous reform of our procedures, as we consolidate decision-making into one decision at the IRB, we hope to address how we move from today's system to a new system so that we can eliminate multiple layers.

It is important that the committee understand that today, first, there is the refugee determination decision at the IRB, which is subject to judicial review; second, there is the post-determination risk assessment, which is subject to judicial review; third, there is the opportunity to apply for humanitarian and compassionate consideration on grounds of risk, which is subject to judicial review; fourth, there is a pre-removal risk assessment for a deportation order, which is subject to judicial review.

We know this is cumbersome and that it takes too long. Bill C-11 consolidates all of that into a single protection decision at the Immigration and Refugee Board. That is a huge overhaul. We will add to that a new division called the Refugee Appeal Division. There will be one decision, one appeal to the Refugee Appeal Division and then there will be a judicial review of that decision. That should streamline our processes. Certainly, there will be transition challenges, but we believe that, overall, the result will allow us to deal with claims more quickly because we will also have a single-member panel making most decisions.

Senator LeBreton: It was mentioned that cases were abandoned after 30 days, so I do not know whether the bill would actually find all these people who have not reported back.

It is understandable that lawyers do not like this bill. However, I assure you that during the 20 hours we have sat, not all of the presenters were lawyers. There were former diplomats, former deputy ministers and senior public servants, who were all universally concerned about the proposed legislation.

Senator Beaudoin: My comment is about the notwithstanding clause, which is not in the bill. One witness suggested the use of that clause, and all the others, as far as I remember, were against that. In my opinion, we do not need it. I understand this is your opinion as well, and I congratulate you for that.

My question concerns clauses 5 and 53. For a few years there has been a tendency to framework legislation. That is not particular to this bill, but has been used for many difficult bills. It is legislation by regulation. It is always difficult. Section 53 is quite vague. In clause 5, the Governor in Council may do a great deal by regulations.

Clause 5(2) states:

(2) The Minister shall cause a copy of each proposed regulation made pursuant to sections 17, 32, 53, 61, 102, 116 and 150 to be laid before each House of Parliament, and each House shall refer the proposed regulation to the appropriate Committee of that House.

I agree 100 per cent with that. However, the next paragraph worries me:

(3) A proposed regulation that has been laid before each House of Parliament under subsection (2) does not need to be so laid again, whether or not it has been altered.

If it has been altered it should be deposited. I cannot understand that. If you amend a regulation, and you have the right to do it - the Governor in Council has the right to do it, providing it is within the mandate given by section 43 - and if there is no abuse, it is perfectly legal. Why is that subparagraph included?

If a regulation is not altered, there is no need to lay it down again, but if a regulation is altered, that means the law has been changed. We have to know what the law is because, after all, we are a legislative house.

Could you please explain why that paragraph is there?

Ms Caplan: Yes I will, senator. First, I would like to say that the existing immigration legislation is framework legislation accompanied by significant regulatory authority, and this bill is no different. Bill C-11 reflects the commitment we have made, and we believe all rights and all policies should be contained in the legislation. It is the regulations that, if you will, put the meat on the bones. Your first question concerned the framework legislation. That exists today, not only here, but also in existing legislation.

The second part of your question was how we do the regulatory procedure. I am aware that concerns have been expressed at this committee about how long it will take us to complete the regulations. The procedure for regulations is such that we cannot begin until we have Royal Assent. After we have Royal Assent we will pre-publish and send the regulatory proposals formally to the senate and commons committees. We have already given them to you informally and advised you of our thinking on them. We want your advice. We then gazette the regulations. There is an additional period of time up to 90 days, I believe, for comments before they are proclaimed.

Thus, there are many opportunities to see if we listened and if we took the advice that came from the committees. However, if that section was not included, then we would forever have to return to it even if one word was changed. We would never be able to move forward, given the volumes that we have with anything other than regulatory oversight.

The proposal that is in place, which has worked well over the course of time, would be first to do a pre-publication. After that you would give us your advice, do a full gazetting, give us your advice again, and then, we get on with implementation of the bill and the regulations together.

Senator Beaudoin: It is the bill that is important. Delegated legislation is subject to the bill, and the bill is Parliament. This is my argument. I agree that we need clause 43 and I agree that we have to make regulations, and, of course, it should be within clause 53. Assuming that is always the case, it is well and good, but paragraph 5(3)worries me.

A copy of each proposed regulation should be laid before each House. I agree that you may change your mind because such is the human spirit. Changes can be needed in light of the circumstances. But why is that? You may alter the proposed regulation and not lay out the changes before the two Houses of Parliament. To me, that is a complete mystery.

Ms Caplan: Senator Beaudoin, paragraph 5(3) refers only to the regulations. Any changes in legislation must be referred back to the House of Commons and, of course, come before the Senate again. It is the regulatory framework, the process of which has been around for a long time. This paragraph simply restates that process, which has been in place for a long time in Canada and has worked well.

Senator Beaudoin: Yes, but it is not because it was good for many years that it remains in the law. In my opinion, it is about time that we dropped those paragraphs, if they have existed for so many years.

Ms Caplan: I can only tell you that the vision we have from our lawyers is that everything in this bill is legal and will meet the test of our laws in Canada and our Charter.

The Chairman: Briefly, the issue is not whether it is legal. The issue is the difficulty with the process that states the government will lay before both Houses of Parliament proposed regulations, and, if they decide to change them, they do not need to lay the new ones. That is what paragraph 5(3) states. That is the part that is disconcerting in the sense that one set of regulations could be laid out one day, put them down, take them back the next day, totally change the regulations, and we would never see them.

Senator Grafstein: That is not correct. There is a Statutory Instruments Act that deals with this. Senator Beaudoin knows that. I am not here to defend the minister because I have other problems with the bill, but we do have a process that deals exactly with this issue. Otherwise, the minister is put in the position where she has endless regulation.

Senator Fairbairn: As others have noted, we have heard many opinions this week, and many concerns as well.

I would like to return to a concern raised by you in your opening remarks, and also raised by Senator Beaudoin. It was startling to hear from a group of former senior public servants talking about the possibility of using the recommendation to use the notwithstanding clause. I ask the question because it was even further suggested that, if that was not on, then the government should then go so far as to consider a constitutional amendment in order to deal with the notion of the upfront human rights of refugees coming into this country.

I would like a further comment from you on that issue, because that was about as fundamental as anything that we have heard. I would like your views, please.

Ms Caplan: Senator Fairbairn, I believe the terrorists win if they force us to give up the values that we cherish; the rule of law and due process. I do not think we can let them win. More than that, I do not think Canadians want us to respond in a way that would send the message that we do not believe we can maintain the balance that Canada has been so proud of, and that is, of course, security, protection, health and safety. These are absolute priorities. At the same time, as a proud signatory of the Geneva Convention, we welcome people who are fleeing persecution and we want to give them the opportunity to tell their story in a fair way. To those people who do not agree with me, I say we will just have to agree to disagree. I believe Canadians expect us to protect those values that we cherish and to find that balance.

We can do that, not just with this bill, but with the approach that the government is now taking. We will be working internationally with our partners to share intelligence and to do everything we can to prevent the kind of terrorist attacks and horrors that we saw from ever happening again.

Senator Fairbairn: In another area of an oft repeated comment that we heard from many of the presenters was the figure of 27,000 in respect of people who are perceived to be here somewhere in the shadows; people who do not qualify and who should be sent out of Canada. We do not know who these people really are or where they are. One of the difficulties in addressing the bill is the context for which it was not initially designed to specifically deal with. That has raised some of these security questions to a height that they might not otherwise have been raised.

The Canadian people have a notion that there are thousands of people somewhere in Canada who should be identified and on their way out who cannot be found or recognized. That impression has been left. Can you deal with that at a certain comfort level, particularly in view of the immediate context?

Ms Caplan: I appreciate the opportunity to be able to clarify. I would like to repeat again, where we have evidence that any individual poses a threat, a risk to Canada, we move to detain. We give that information to the RCMP or police authorities. We work very closely with them to arrest those people who pose a risk or danger where we have evidence.

There is a "24-7" call centre. It operates 7 days a week, 24 hours a day. All police forces call if they have someone for whom there might be an outstanding warrant. We work very closely together to identify those people and then they are detained until removal if we have identified them. Wherever there is a risk, detention is the option.

Who are some of those others? We know in other countries the numbers of people living underground are very high. The estimates have been in the millions for both Europe and the United States.

You have you referred to the number of 27,000 people. We think that a number of those people have left. We do not stop anyone from leaving Canada. Those who are unwelcome, and for whom there are arrest warrants on a deportation order, we believe, leave. They leave because they have papers to get to another country, and they do not want to be subjected to a formal deportation. We also know that some of them are in jail. Warrants are issued when they are in jail, and as soon as they are out of jail they are removed.

We also know that some of those people are visitor visa overstays. A person comes on a visitor visa that was good for six months. The person overstays. A warrant is issued when a person overstays a visitor or student visa.

Unfortunately, failed refugee claimants have been represented as a significant number of these. It is also important that people know that when someone makes a refugee claim in Canada, he or she is fingerprinted, a photograph is taken and there is a preliminary security check through all of the databases to attempt to identify those who poses a risk. If we do, these people are arrested. If we do not, they proceed to the IRB.

On the issue of abandoned claims, people who do not show up, where we have belief that they will not show up for a hearing, that is grounds for detention. However, we must have evidence to support why we think that they are not going to appear.

Others sometimes use abandoned claims to delay the process. A person withdraws and abandons a claim and then comes back and makes another claim. Bill C-11 will stop that. That is considered abuse.

If you have withdrawn or abandoned your claim, you will not be given access to the IRB a second time. Instead, you will go to the pre-removal risk assessment. If the circumstances are that you are in need of protection, you will be granted that protection. If not, you are removed.

There is the same arrangement for repeat claims. Bill C-11 does not permit repeat claims. We know that is another area of frustration. You will get one chance to go to the IRB. If you return to say that circumstances have changed and you want to tell your story, the place that you will do that is at a pre-removal risk assessment, which is part of our international obligation but not the full refugee determination system. That is another way in which we are streamlining this.

All of that should allow us to improve removals. Removals are a challenge for all countries. Canada, over the last five years, removed 45,000 people. In the last year alone, we removed over 8,600, 5,700 of which were failed refugee claimants and 1,700 were criminally inadmissible to Canada.

We also believe that prevention is a way in which to respond. We have had for 12 years an international immigration control officer network that works with countries around the world. Documents are checked before people get on trains and airlines to Canada or to North America. Other countries are using that as a model and developing networks that will work with each other so that it is not necessary to have five people from five different countries doing the same thing. We are co-operating and sharing information with other countries. Last year alone we stopped 6,000 people coming to Canada from overseas. At the Canada-U.S. border we stopped 21,000 people who were reported as inadmissible to Canada.

There are many numbers that could be given. There are always concerns on how we could improve everything that we do. To suggest that because there are 27,000 people who have deportation orders issued against them is in some way a problem that is out of proportion with that which other countries are dealing is not accurate.

Senator Di Nino: Minister, I would like to applaud your effort to improve legislation that hopefully will tell many around the world that Canada is open and welcoming of new citizens.

You and I come from a part of the country that probably has benefited more than others from immigration. I am not sure if we could quantify it. I can assure you that along the way I will be standing beside you, and in front of you if necessary, to assist you in making sure that we continue to have an open arms policy to attract the best that we can.

I must admit that I am very disturbed about what has been happening, as I have said in the Senate, and I am sure that your officials have given you the gist of my speech. I will not quote all of your comments to the media over the past number of weeks but, in effect, you have said, "This is a good bill, pass it, I need it quickly."

We have heard from practically every witness who has come here that there is enough power and authority in the existing act. I know you that have addressed it. However, witness after witness after witness has said that the only thing that the department needs is the money that was taken away - which has taken away the ability to do the job.

You came to us and said that you need this bill right away. We hear, including from your own officials, that there is no way that this bill will see the light of day until maybe the spring. I would like to quote one exchange with a witness regarding the timing of the implementation of the bill.

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

The Chairman: March 1 is being generous.

Ms Atkinson: That will be a challenge.

The Chairman: In Ottawa, it is not spring in March.

We in the Senate have perceived a disrespect for the institution. We have heard from numerous witnesses who have used comments like "smoke and mirrors" and "window dressing." They say that the department wants to give Canadians a false sense of security. One said that he believes that the purpose of this is to give Canadians a feeling that something is being done.

Madam Minister, you said a moment ago in response to my criticism that you will have this implementation and the regulations very soon. What do you mean by very soon?

Ms Caplan: That is a very good question that I want to clarify, and Ms Atkinson is here. I heard what she said, and it has been misinterpreted to some degree.

The suggestion that we will not have the regulations completed until the spring is false. The regulations started development when the bill was before the standing committee. We tabled the first working paper. The standing committee tabled an updated version with you. Any suggestion that the justice department drafters are in any way delaying the regulations is simply wrong.

You are experienced senators and you know that legislation and implementation of an important reform has steps. Legally, there is not disrespect, senators, but complete respect for the rule of law and the process of Parliament.

The first step is we must have the bill. The bill then receives Royal Assent. We then proceed with pre-publication of the regulations, which, as I have told you, are almost complete. Out of respect for the process, they will not be complete until we have the bill.

Then there is gazetting of those regulations after committees of the House have had an opportunity to give us their advice. Again, we respect that. We want your advice. As soon as we have those regulations, the department will be able to say, "Here are the new rules." We must train our employees and begin implementation as quickly as possible.

Based on the advice that we have received - the debates in the House, the discussions here at committee - we are anticipating that we will be able to move ahead more quickly with certain provisions, and we have already, under existing legislation, moved to intensify security. Implementation of training has already begun. With the gazetting of the regulations, we will be able to intensify that training because we hope that by that point there will be a general consensus on what the regulations will be.

The bill and the regulations are integral, and this is a major reform. The deputy and I have discussed, on numerous occasions, the fact that every decision that is made by our department is subject to judicial oversight. That is something of which we are proud in Canada. The courts review what we do. That means we have to get it right.

My statement to you is we need the bill to get the regulations to be able to implement. We want to do it as quickly as possible because this bill gives us important new tools. I am asking for your help.

Senator Di Nino: Is it fair for me to ask you to give us a timeframe when you think this bill can be implemented, assuming the process is as you suggested?

Ms Caplan: We are hoping that the regulations will be passed in the winter and that the bill will be implemented in the spring with all the Is dotted and the Ts crossed.

Once we have legislative authority, we will move to implement by policy that which we can implement by policy, and we have already begun, as I said. We are on a high state of alert at the borders. We have additional resources targeted there. We started to do in-depth security screening, but, frankly, senator, the bill allows us to ease our ability to deny access to refugee determination, which the existing legislation does not. If we get information we are subject, at this point, to the very cumbersome process of the existing legislation. If we get the proposed new legislation, we will be able, as soon as we possibly can, to move to more streamlined procedures that will be in the interest of all Canadians.

Senator Di Nino: We will still start in the spring at the earliest.

Ms Caplan: That is for implementation. It is important to differentiate. I had the impression that this committee was suggesting that we were not going to have regulations until spring. That is not true.

Senator Keon: Madam minister, my question relates to the bill and its relationship to the regulations and the relationship of the bill to the urgency of the situation.

There were strong suggestions from some of the witnesses that the bill is based on a dysfunctional framework, to a degree. Nothing in the bill spells out the interdepartmental co-operation and linkages between police services, CSIS, RCMP and Customs and Immigration that would put the teeth in the system to allow you to deal with the urgent matters at hand.

It is obvious if the bill receives passage early this will have to be dealt with in the regulations, or it appears obvious that it would have to be dealt with within the regulations to get these people networking at a better level than they have in the past.

Is it your intent to deal with that in the regulations at this point?

Ms Caplan: In fact, senator, we believe those are operational issues. At the present time, customs, CSIS and the RCMP are important partners with our department and we work very closely together. It is important for the changes in the bill to be ready and to understand those changes, and, therefore, training will be required not only for immigration officers but for others.

You are quite correct, Canada Customs and Revenue Agency, CCRA, is the primary inspection line in Canada. Immigration is the secondary inspection line. We work closely with customs because those officers have to be trained under the new legislation to know what to look for and what questions to ask on behalf of immigration and who to refer to the secondary inspection line.

We have, I believe, 2,400 customs officers across the country. We have 5,000 employees around the world through Citizenship and Immigration. Training is an important component.

CSIS does all the security work for our department. We rely on the RCMP when it comes to working with our department to secure arrests of individuals. We also have very close relationships with provincial and regional policing authorities, and that is where our "24-7" warrant centre supports all enforcement in police forces across the country.

I do not want to minimize the challenge, but they work very well together, and I have been very proud of the response of Canadian enforcement agencies over the last month as they have not only worked together to support Canada but also to provide support for our friends and neighbours in the United States.

Senator Di Nino: Minister, the issue of resources is one concern that has been raised continuously. Nearly all of the participants have made strong statements about how the whole system may collapse due to the lack of resources.

There are two areas - and you touched upon one - that I believe would help relieve the problems that the system has. One is the safe third country concept, and the other one, which you mentioned a moment ago, is the permanent resident card, which I understand is slated for 2003. Both of these have been around for at least ten years, if not longer. Your government has had eight years to deal with these issues, and we are told they have not been dealt with because the resources have not been there to do that. That may have led to many of the problems that would have been avoided if these two issues had been dealt with in a timely process. Could you comment on those?

Ms Caplan: Let me start first with the question of resources. When we received cabinet approval for the policy of Bill C-11, we also received significant new resources to be able to implement the legislation.

Have you ever had a minister come before you who said he or she would not like to have more resources? I will not be the first.

The issue of safe third country is an interesting provision. The Geneva convention permits countries to bilaterally enter into agreements - negotiate agreements - that state a claimant must make his or her refugee claim with the first safe country at which he or she arrives after having fled from the persecution that is claimed. To do that, countries must agree; it cannot be done unilaterally.

It took the European Union a long time to come up with the Dublin Agreement, and frankly, from my discussions with my colleagues in Europe, they are not satisfied with the way that is working.

In North America there have been discussions in the past between officials in the Department of Citizenship and Immigration and the American equivalent. We would require their agreement. For Canada, it is an important issue. You have heard the Prime Minister state that more than 40 per cent of claimants in Canada come via the United States.

While we are always interested in having these discussions for obvious reasons, we do not believe there is a high level of interest. Perhaps it is related to the events of the last month and there are higher priorities right now. Certainly, discussions are ongoing about how we can work together with our American colleagues to achieve border security as well as harmonizing our processes for smoother crossings for trucks and legitimate business travellers in both directions across our borders. We are now examining pilot projects for ways that we can work with the Americans to make the border function more effectively.

The last point that you raised was the permanent resident card. In my comments I mentioned waiting for the year 2000 to pass. There have been many changes, as you know, in the area of high technology. We are able to do things now with cards that we were not able to do even one or two years ago. We want this card to be tamper-proof, fraud-proof, state of the art, and available as soon as possible. My deputy minister will confirm to you that is on a fast track so that it will be in place before the time line that you mentioned. In fact, currently we are doing everything possible to expedite the implementation of the card.

I will give you a brief explanation of the card. Currently, people who come to Canada as new immigrants are given a piece of paper called the IMM 1000, on which there is typed information and no photograph. There have been concerns that the piece of paper is not tamper- or fraud-resistant. That is what we want to change. The IMM 1000 is used primarily for those who want to come back into Canada to prove that they have legitimate status in Canada. It is a status document. Canadian citizens have passports. New immigrants will have the permanent resident card, which will be their travel document to re-enter Canada.

The deputy minister has confirmed that it is on a fast track and that we are moving ahead with it as quickly as possible.

Senator Di Nino: Can you quantify how much money you received in the last budget? What percentage increase has there been in your budget?

Ms Caplan: We received $139 million in additional new money. I will ask the deputy minister about our total budget.

Mr. Michel Dorais, Deputy Minister, Department of Citizenship and Immigration: That is about one eighth of the budget.

The Chairman: One-eighth is 12.5 per cent.

Ms Caplan: That is twelve and one half per cent increase.

Senator Grafstein: Minister, I am not a member of this committee but I have a long-standing interest in these issues, coming from Toronto.

Parliament - and you - have a very difficult task in this bill to maintain an exquisite equilibrium between liberty and security. It is where we draw the line and how we draw the line that is important. While I have a number of concerns with the bill, I hope that our focus can be on the problems because I do not want the elusive search for the perfect to drive out the good.

I try to analyze, as best I can, from numerous reports and the Internet, the nature of the current threat to Canada, which gives citizens a high sense of insecurity, as it does in the United States. I am not sure, minister, that the bill does that. I am not criticizing you, minister, because the bill was passed in June before the current threat. We have to analyze, in a way, if there is a focus on the clear and present concerns that Canadians have.

It is a very narrow and tight concern and the media has not done a good job in differentiating between the vast flow of immigrants and refugees, who are the lifeblood and future economic growth of the country, and the threat.

When I consider the issue of the millennium bomber, as a narrow focus, he had a Canadian passport. The issue really was not about a smart card for immigrants or refugees. The problem was a forged passport. He, in effect, came to Canada under false pretences and obtained, by fraudulent means, a Canadian passport and he used a false name. By good luck and good fortune, he was trapped at the border and the American authorities brought him to justice. The transcript of that case in the United States was very enlightening. Again, this is not criticism. This is simply fact.

If we are concerned with that as a first priority, should we not give the first priority to a smart passport, as opposed to trying to spend a great deal of time creating a smart immigration status card?

I know that we have the technological means of doing that. What priority is the department giving to ensure that we have a smart fraud-proof passport as soon as possible? I am not certain that Bill C-11 addresses that.

Ms Caplan: No, it does not. That is because the Department of Foreign and Affairs and International Trade issues passports to Canadian citizens. We issue permanent resident cards - now the IMM 1000 and soon to be the new immigrant card, which is a travel document for permanent residents who are not yet Canadian citizens. When you become a Canadian citizen, you apply to the Department of Foreign Affairs and International Trade. I know - and Minister Manley will confirm this - that it is examining new passport security in light of events.

You make a good point, senator. I want to add several comments. If we have learned anything, it is that terrorists, those who would pose a security threat, do everything they can to evade detection. They are chameleons and their operations are covert. That is why intelligence and knowledge are so important and that is why countries have to work together. Countries must share that intelligence, gather the data and do everything they can to prevent those who would evade detection from being successful. We are doing many things now that we will have to do better.

I am the first person to say that. This bill gives us new tools that we did not have before, and that is important.

However, the intelligence and information that is gathered by our existing immigration control officer network is extremely important and should not be underestimated. The intensified security checks that are being done at our borders should not be underestimated. The fact that CSIS and the RCMP are working with the CIA, Interpol, Europol and all those intelligence organizations that are on the highest state of alert should not be underestimated.

The important thing that you need to know about Bill C-11 is that it allows us to protect some of that sensitive intelligence information. That is one of the important tools in this bill, so that we can move to arrest and detain without having to identify sources or give up sensitive information, which would stop those intelligence organizations from doing their job.

This is a part of the campaign against terrorism. It is not the only part, but there are new tools here that will help. Immigration reform has been under discussion for a number of years. We have been aware of increasing threats.

At committee in the House of Commons, the focus of the scrutiny of the proposed legislation was on criminality. We held firmly to our desire not to see any additional steps, or anything other than the tightest streamlining possible, because the bill deals both with criminality and security threats.

If there is more that needs to be done in the future, we must remain open to looking at that. However, you said it extremely well. I use the word "balance." You talk about "exquisite equilibrium." Certainly, that is the goal of this bill. The goal for all of Canada is to maintain that balance so that we can both protect ourselves and retain an open-door policy.

We want to close the back door to those who pose a threat to our society, so that we can continue to keep that front door open to the people whom we need to help us grow and prosper. Canada is a country of immigration. It was built by immigrants and refugees. We will only maintain the confidence of Canadians in continuing to bring those people in if they are satisfied that we are doing the security checks and the health checks before they arrive in this country as new immigrants.

If people ask for our protection, we want to identify those who are in genuine need of it as quickly as possible, for them and for us. We want to identify those who do not need our protection, so that they can be removed as quickly as possible. That is the goal of this proposed legislation.

Senator Andreychuk: Minister, you have highlighted a number of things with which I agree.

To conquer terrorism and criminality, we need intelligence and knowledge. We need to move quickly on it. I very much agree with that.

You have also said that when we bring refugees in, if we knew who the security risks were during the three-day screening, we could eliminate them. We should eliminate them very quickly.

That is the dilemma with this bill. It was not designed to look at terrorism or criminality. This piece of proposed legislation is about immigration and refugees. We keep saying that we need more tools to do something with the refugees.

Is that not piecemeal? Virtually every department has some role in those areas.

We are told to expect anti-terrorism legislation. That should be a global piece of legislation, of which immigration and refugees should be a portion. We should not leave the false impression with the public that our safety and our security are tied to the issue of immigrants and refugees.

We know that terrorists and criminals can be homegrown. They could have immigrated here. They could be refugees. They could be still lurking somewhere in the world.

Fast tracking Bill C-11 attempts to provide the illusion of a comfort level that does not exist. We need to stop. September 11 told us to stop.

Mr. Manley's committee is a first step. The terrorism legislation must impact all of these pieces of legislation. To pass this too quickly would deflect from doing the job right for a change.

Ms Caplan: I do not agree with your conclusion, but I do agree with the preamble. That is usually the opposite of what I say in the House when I answer a question. Rightly, you have identified that this is not the only thing that has to be done.

However, I would argue that there are important new tools that we need in this proposed legislation. I ask that it be passed as quickly as possible because that is important to Canada.

Citizenship and Immigration is a partner with the Attorney General, the Solicitor General, CSIS, RCMP, Foreign Affairs, and Transport. All of those partners work together.

There are a number of things that have already been done. If you have been tuning into Question Period, you will know that the Attorney General has identified a number of pieces of legislation and actions that have been taken by Canada to address counterterrorism. These include new and better extradition laws and the ratification of UN agreements. Much has already done been in other pieces of legislation.

We have acknowledged that there is more to do. Some things are in progress under the Solicitor General, and some under Customs. We have the proposed charities legislation before the House, Bill C-23. We also have changes to Customs before us, Bill S-23.

Your expectation that it should all be done at once, at one time, under one piece of legislation defies the reality of the way departments work, and work together. Everyone does their share and does their piece.

This is a reform to immigration and refugee policy in Canada. If we delay this bill, we delay our ability to do what needs to be done until everyone else agrees on an agenda that is just one small piece of what is contained in this bill, but an important piece.

I want to assure you that we work with our partners and will continue to do so, both at the committee that Mr. Manley chairs and also operationally. However, it is extremely important that you realize that this is the first time in over 25 years that we have updated our immigration and refugee protection, and much has happened in that time. There are important aspects of this bill that simply cannot wait.

Senator Andreychuk: The witness has spoken graphically.

People on the front lines, and my experience with the security and intelligence review, tell me that it is not a question of new tools. It is a question of operationalizing the tools in a combined way.

For example, security during the 72-hour screening means working with the RCMP. That kind of operational issue is dependent on the RCMP doing the job for immigration overseas, sufficient staffing and sufficient supervision.

The emphasis seems to be on tools because it is easy to change the law. It is more difficult to make highly bureaucratic systems work, including the refugee boards, et cetera.

Would you not be better off turning your attention to operational issues to make it work, rather than more tools? You have not completely used the tools that you have.

Ms Caplan: I disagree. It is important because there has been a misunderstanding of what the 72-hour referral actually means. That is where there is an important change between this bill and the existing legislation, and I would like to explain it.

When people come to Canada and make a refugee claim, under the existing law, they are fingerprinted and photographed, and that is run through CPIC, the police databases, and others to determine whether this person is inadmissible to Canada because of criminal activity. Immigration officers then assess the individuals on eligibility grounds, and that can take up to six months. That is because we have a great deal of difficulty, with the existing law, denying anyone access to the IRB. We can do it, but it is cumbersome, difficult, and we must have a great deal of evidence.

After people have been given refugee status, a full and intensive second screening is done before they are eligible for permanent resident status. There is yet another security update before citizenship is granted.

The policy and the intention of this proposed legislation and the new tools is that an intensive security check, which is done before landing, will done before anyone is granted permanent resident status. Therefore, there are two tracks. By eliminating the eligibility review by an immigration officer and compressing that into three days, we are not saying there are only three days in which to make the decision. In fact, the officer will have until such time as the persons become landed immigrants to determine whether or not they are admissible to Canada. We hope that by putting that intensive screening up front, we will be able to identify those whom we do not want in Canada. In the case of those who are inadmissible because of criminality, security concerns, war crimes or crimes against humanity, we will be able to, as the Geneva Convention allows, deny them access to the refugee determination system, have an admissibility hearing, a pre-risk removal assessment, and then remove them from the country.

We will do two things. We will refer an individual to the IRB within three working days, and at the same time, begin not just the preliminary security screening, but the intensive security screening which now does not take place until after refugee status is conferred. We have a three-step process that we will streamline into two, use our resources better to work smarter, and be able to identify more quickly those who are in need of our protection and those who are not welcome in Canada.

Senator Cordy: There has been a fair amount of discussion about things moving along too quickly, and people who may have wanted to make presentations or speak to your department about concerns have not been able to do so.

In your remarks this morning, you spoke about an open consultation process the department has undertaken in preparing for Bill C-11. Could you expand on that?

Ms Caplan: We have been consulting for five years. My predecessor had cross-country consultations and forums in major centres. Bill C-31, the predecessor of Bill C-11, was extensively debated in the House of Commons. When Bill C-31 was interrupted, we took that time to look at all the debate, the advice and the briefs that had come to the department. We responded with Bill C-11, with significant changes, because of all the advice that we received from that extensive consultation. As I say, we had five years of full consultation, then Bill C-31, and then the new Immigration and Refugee Protection Act, Bill C-11, with public hearings before the House of Commons. I have met with organizations and individual stakeholders since my time began at the department over two years ago. This has been the number one legislative priority for me and for the department.

Senator Cordy: Certainly, now and always, Canada wants the best and the brightest to join our workforce. One of the witnesses who appeared yesterday said Bill C-11 would deter the best and brightest from coming to our country. Would you comment on that?

Ms Caplan: In fact, the new regulations, along with Bill C-11, will do the opposite. It will allow us to compete for the best and brightest, and we know that other countries recognize they have the same demographic issues we have. Our population is aging, the birth rate is down, and our labour force growth is very dependent on immigration. We are already seeing skill shortages, and we know that immigrants bring buying power and prosperity. We see the signs everywhere. I refer to Senator Di Nino's comments. One does not have to do much more than drive around the larger urban centres to see the prosperity that immigrant communities have brought. Our goal with Bill C-11 is to bring people who have flexible skills, and do away with the old, outdated requirement to fit into a certain occupation. It sometimes takes longer to bring people because of the need to do all the checking, and the occupation category may no longer have the same needs. People come with an unrealistic expectation that that is where they should look for a job.

I will ask Ms Atkinson to speak about the new selection grid, which we believe will allow us to compete effectively with other countries that are facing the reality of the same demographic issues and that want to open the front door to skilled workers.

Ms Atkinson: Our new selection grid, which will be in the regulations, and which we have explained in some detail in the proposed regulations, is based on extensive research and consultations over the last several years.

It moves us away from a narrow, occupation-based selection system where, in order to qualify, individuals must find themselves described on a list of occupations that may no longer be in demand and do not fit with a labour market where individuals move between professions. Based on research and consultation, we know that the Canadian economy now needs knowledge workers with flexible skill sets that apply in different work environments and occupations. Our selection system is built on those flexible skill sets and on sufficient levels of education and language skills. Therefore, people can arrive, land on their feet, and move in and out of occupations within the knowledge-based economy.

Senator Roche: Minister, as I ask this question, I am sympathetic to your needs. However, like other senators that you have heard here today, I have a very deep concern about what has been, I think properly, called the "unseemly rush" of this bill and the pressure on this committee to pass it. We have not, for example, even had an opportunity to hear from the provinces and the administrations of Toronto, Montreal and Vancouver, where most immigrants and refugees end up. I think they need to be heard.

I took my case yesterday to the floor of the Senate and had an interesting and useful exchange on this point with Senator Carstairs, the Leader of the Government in the Senate. The minister said that while she wanted the Senate to deal with the bill as quickly as it could, that in fact, "the actual work of the committee is up to the committee."

Thus, if in the committee's wisdom, it decides that it needs another three or four weeks to give this bill the kind of examination it feels is appropriate, would you have any problem with that?

Second, when this bill is reported, would you give your support to any recommendation or observation that the committee, in its wisdom, might make? It may, in other words, call for a formal Senate study on all aspects of immigration and refugees. I will not expand on this now, but many of the points that have been raised with us require the kind of in-depth study that the Senate is famous for doing on many important subjects. Would you support such a study?

Ms Caplan: I want to thank you for your comments, Senator Roche, and tell you how much I respect the important work that the Senate does. I would not want to in any way suggest what you should or should not do. I have long considered this as a place where important issues of the day, and of the future, can receive thoughtful and in-depth study and analysis. Should you decide to do that in the area of immigration, I know that you would do a very good job.

On your first point, I want you to know that we consider the provinces important partners. We have agreements with some provinces and a requirement to consult; we do consult on an ongoing basis. The provinces have been involved in the discussions that led up to the development of this proposed legislation. I want to assure you that they have been consulted, and there is no suggestion, I would say to this committee, that they have not been. They have been consulted by the department, by officials. I can also tell you that the provinces are very interested in the new regulations as they relate to both skilled workers and to the family class.

Given the fact that until the Senate passes this bill, we cannot pre-publish the regulations that will ultimately be gazetted, we cannot officially begin the training and the transition to new legislation. I do not believe the delay would be in the public interest.

If there is any delay, this proposed legislation and these reforms would not then be able to be implemented by the spring, which many have already agreed is the latest that we should be considering as an acceptable time line for all the i's to be dotted and the t's to be crossed. The sooner this bill is passed, the sooner we will be able to implement many of its important aspects. Also, our missions abroad that do the processing need to have clear rules as quickly as possible. We need to send the message out to the people who are applying about what the rules will be.

I ask for your support and assistance in seeing that this bill is dealt with as quickly as possible and with the urgency that I have expressed.

I have also said that if there are future discussions and good ideas that come forward from this place, or any other, I certainly would be open to considering them as something appropriate to the Canadian interest.

Senator Robertson: Minister, my first question relates to the trafficking in people. We have three provisions, 17, 18(1) and 119. You know what they relate to: aiding and abetting, abduction, fraud, deception, groups of persons at sea, for the purpose of inducing, et cetera.

There must be a reason why the government chose to make trafficking in people an offence under the Immigration Act rather than an offence under the Criminal Code.

Ms Caplan: I will call on the legal experts, since you have asked a legal question, but from a public policy point of view, the UN Convention against Transnational Organized Crime has two subprotocols. One of them is on trafficking, particularly of women and children, and Canada was very involved in the development of that. We are very supportive of it and it does deal with migration issues; therefore, the Immigration Act is a very appropriate place for us to be dealing with that provision. I will ask our lawyer to answer further.

Mr. David Dunbar, Senior Counsel, Department of Justice: It would have been possible to put it in the Criminal Code. It operates the same either here or in the Criminal Code. It is simply that, because of the work being done with the UN and because it is a logical fit with the remaining provisions here, the decision was made to place it in this bill.

Senator Robertson: I have two questions. I return to trafficking, minister.

Any department of government is to be administered directly to the intents of the legislation at the responsibility of the ministers. In this area of trafficking, we have also been informed that the former maximum fine was never imposed. I would suggest to you, minister, that if that is true, you missed an opportunity to raise money.

Ms Caplan: I think that is a different issue, Senator Robertson. Trafficking in people and smuggling are looked at very differently. Smuggling is sometimes done for humanitarian reasons. Trafficking is exploitation. The UN convention is clear on that.

This is an issue of which our courts have recently become aware. The events of a couple of years ago in Canada was one alert. More significantly, the events worldwide have brought trafficking to the attention of the United Nations.

This is not only an issue for Canada, but for all countries. We have had some success in our courts with getting convictions recently. This bill will send a strong message to our courts about how seriously concerned Canadians are about trafficking, and smuggling that is not for humanitarian reasons.

Senator Robertson: Have you imposed fines? Have the courts imposed fines?

Ms Caplan: The courts have imposed jail terms and fines. The fact that we are speaking about it today on the record before an important committee of the Senate demonstrates that this is an important issue. Our talking about the work of the United Nations and the protocols will bring the concern to the attention of our courts, because they read the transcripts.

The trafficking in women and children for exploitation is a deplorable and horrific activity. We want our courts to take the strongest possible action and to send the strongest possible message that the people of Canada will not tolerate that.

Senator Robertson: What is the maximum fine under the current act?

Ms Caplan: In the current act, the maximum was $500,000.

Mr. Dunbar: There is no trafficking offence. It is $500,000 for smuggling.

Ms Caplan: The penalties for trafficking in this bill include a fine of up to $1 million and a sentence of up to life in prison.

It is important that you realize that trafficking is a significant aspect of this bill. We have distinguished, in this bill, between smuggling and trafficking, because we have recognized that smuggling is sometimes done for humanitarian purposes. Also, the Attorney General has the ability to decide not to proceed with prosecution in those cases.

Senator Robertson: We will be watching that carefully.

Some of us are a little concerned. The witnesses that we have heard on this bill, with only one or two exceptions, have spoken impressively against it without suggesting amendments. Most people say you can do what you want to do with the current legislation.

Some of them have been rather significant witnesses. I have been dealing with legislation for 35 years. There was universal condemnation of the bill from the witnesses that we heard yesterday, with the exception of one. I have never seen such a weight of knowledge from witnesses around this table in all those years as there was yesterday. Those people knew about that which they were speaking.

Have you talked with those people? Have you listened to those witnesses? If you do not know who they are, I will give you their names. If you spoke with them, and they came back to us and told us a different story, I would feel comforted.

Ms Caplan: Yes, I have spoken with many, including the representatives of the bar who I know were here. I have read the briefs of the other witnesses whom you have had here who also appeared before the House standing committee.

By and large, the criticism from all opposition parties and at the House of Commons standing committee was that this bill is too tough. The bill does give sufficient rights to criminals. The demand was that we go beyond the obligations of our Charter.

To those critics, I say Canadians will not tolerate additional steps and additional processes that will lead to unnecessary delays.

I want, and I believe the overwhelming majority of Canadians want, us to have the ability to remove people from Canada more quickly. We also want to be able to deny to those who pose a threat, who are criminals, or who have activities in their past, such as war crimes or crimes against humanity, the possibility of entering the country. We will send out a clear message that we will not provide a safe haven to those people. More than that, we will not let them tie us up before the courts for years beyond what reasonable due process requires. To those people I say: This bill strikes the right balance. To the others, the few who say that we should scrap the Charter, rip up the Geneva Convention, do not give due process to any one, I say: Canada has a proud tradition of offering welcome and hope to those people in genuine need of our protection. To those who come and do not tell us the truth, we give them a chance to have a fair hearing and due process before we remove them.

This bill strikes the right balance and will allow us to streamline our procedures, maintain and protect those values we cherish, which are rule of law and due process, and to remain proud Canadians.

Senator LeBreton: Minister, I must check the transcripts but I think you said that when the bill was before the other place, most of the opposition and the witnesses thought the bill too tough, and I think you said, too tough on criminals.

I have concluded, after reading the transcripts, that the problem we have is how to deal with the danger since September 11 and, at the same time, not cause difficulty for genuine refugees who are coming to Canada. You talked about consultation with the provinces, which would be interesting. I do not mean to to unduly delay this legislation, but perhaps we should hear from the provinces.

A former deputy minister of immigration, a gentleman in this city who is renowned for his public service, told us in testimony that he not only wrote to your predecessor, but he also wrote to you and to the Prime Minister. He read that correspondence into the record and informed us that he received an answer from no one. What can you say that? What kind of a situation exists when a man of his calibre writes to the Prime Minister and to you and does not receive the courtesy of response? His letter was sent concerning these very matters of immigration, and he speaks with authority, because he was the deputy minister of your very department.

Ms Caplan: Let me reiterate that this bill should be implemented before our summer season. The demand for visitors' visa is heaviest in this season. We cannot stop the work of the department before we implement new legislation. That poses a great challenge to the department. I have said clearly that if you delay this bill, I do not believe you are serving the interests of Canadians. If there are other things that need to be done in the future, they can and will be considered in the light of what you referred to as clear and present danger.

On the other hand, this bill has had extensive consultation. We have listened, and I am aware of the views of all who think it is both too tough and not tough enough. That is why I believe it strikes the right balance. However, the focus of the House of Commons committee was on criminality. In the clauses on criminality, we also deal with security threats. In light of the events of September 11 this committee is rightly focusing on the security threat aspects of this bill.

However, we heard proposed amendments, both at committee and in the House of Commons, when it was referred back for the report stage that would have added additional steps and additional rights for criminals. This government has opposed any additional steps that would remove or limit our ability to streamline processes and remove those people who are criminally inadmissible. I refer to those who pose security threats to this country. We want them out of here as quickly as possible.

Senator LeBreton: On that point, I do not think any one around this table would want to unduly delay anything. If we had another week or so to hear more witnesses, I do not think that would be considered a delay. I truly believe that we have had far too many examples, certainly since I have been in the Senate, of pass legislation now and fix it later. Two more weeks with this could not possibility be constituted as an undue delay.

Ms Caplan: I respectfully disagree.

[Translation]

Senator Pépin: One witness asked us what would happen to women caught in a prostitution ring. We were told that these women were detained and then sent back to their country. When you know how they were brought here, you wonder why there is no provision in the bill to protect them, rehabilitate them and keep them here. If we send them back, they'll be caught again in the same system. Section 148 definitely does not address the protection we should give these young women. Can you elaborate on this?

[English]

Ms Caplan: I have said publicly and clearly if there is any one, particularly a young women, in Canada who is being exploited or is in trouble and is afraid to phone the police, she or he can call immigration, any member of Parliament or any senator to ask for help. We will ensure that individual receives the best advice from the police departments to inform the individual of his or her rights under Canadian law.

Before we remove any one, we have an obligation to do a risk assessment to ensure that we are not removing them if they are at serious risk. However, senator, we know that there are people here without any status that do not face risk in their own country. They have a greater risk remaining here because they are being exploited. Therefore, I urge those people to come forward. They can receive help from the police, from immigration, from members of Parliament, from senators, who will do everything they can to see they are protected and sent back to their own country, where they will be safer than they are here. If their country poses a risk, that will be properly considered under Canadian law.

[Translation]

Senator Pépin: I would like to ask a question about panel members. One of the changes introduced in the bill is section 163, dealing with the composition of panels. It says here that cases will be assessed, at the front end, by a single member, whereas, in the past, there were two. Several witnesses told us they were concerned about this section of the bill. Ms Janet Merch, Director of the Canadian Council for Refugees, was quoted in the press as saying:

Our refugee selection system can be compared to a lottery; it all depends on who is the board member who hears your case. All other things being equal, you could either be approved or rejected.

How did you decide to have single-member panels? It says in section 163 that there might be exceptions and that panels of three members could be constituted, if need be. Why such caution? In which situation do you go from a single-member panel to a panel of three members?

[English]

Ms Caplan: That is a very important question. This legislation significantly changes the structure at the Immigration and Refugee Board.

At present, there are three divisions at the Immigration and Refugee Board. There is the Convention Refugee Determination Division, or CRDD. There is the Immigration Appeal Division, or IAD and there is the Adjudication Division. We are making a very important and significant change. That change is streamlining. We are changing the CRDD to the protection division because we are consolidating all of the grounds for protection. All the steps I told you about before will involve one decision made by one adjudicator at the new protection division of the IRB.

We are creating a very important refugee appeal division called the RAD. That is new. The RAD will receive appeals at the IRB. We expect that most cases will be reviewed by the RAD, which will ensure consistency. Appeals will be able to be made to the RAD by both individuals and the minister. However, I will not be personally attending all of these hearings but will send representatives to do so.

The whole purpose is to ensure that the correct decision is made and that people are given an appeal. Our expectation is that, because we will have a faster procedure and more consistency at the refugee appeal division, when cases are requested to be reviewed by the Federal Court, the ability of the RAD to fix mistakes will give greater assurance to the Federal Court in the decision making at the IRB. In that way, we will see fewer cases actually given review at the Federal Court.

Once again, we will have streamlining and a tighter timeline before people are in a position to be removed from Canada. The whole goal is that we do a fair but faster job to ensure that we have good, consistent decision making and that we are restructuring the agency to do this based on 10 years of experience with an organization that is highly respected in the international community.

You would be amazed by the number of countries that ask for a briefing on how our independent quasi-judicial IRB functions. They are extremely interested in the reform because most democratic countries, those who have signed the Geneva Convention, have many of the same problems with many of their appeals, port oversight and time delays that we have. We are looking carefully at a model that will be faster but fairer in giving people the right to make, what I think, is an important claim that should not be prejudged. That is the claim that they face persecution and need Canada's protection.

Senator Prud'homme: Such a bill touches so many shoes. Although I am not a member of the committee, I read the bill and I would like to ask you a question. Senator Pépin's question was of great concern because there is potential for a fourth court, or division for one in Immigration and Refugee Board. I do not know if Mr. Warren Allmand was consulted on clauses 256 and 257 that concerns the International Centre for Human Rights and Development Act. It is minor, but I would like to know.

The court is of concern to me. In your summary, at the beginning under ie. Refugee Appeal Division within the Immigration Refugee Board to enhance fairness and consistency in decision making.

I have seen cases where there were inconsistencies. Montreal people were more liberal in their interpretation of consistency and Toronto people were more severe, in the case of some. A meeting took place with both groups so that they could try to come to terms and have what they call more consistency. It happened to be that the level of consistency leaned more toward Toronto than toward Montreal.

Minister Caplan, you said that you do not want more money. I agree.

Ms Caplan: Would you find that in the record, senator?

Senator Prud'homme: I would make you popular by saying that you do not need more money. What we do need, in this country, is more coordination between our available resources. I sat with Senator Kenny on the security committee and we realized that there is no coordination. I regret to say that there is not much cooperation between CSIS and the RCMP.

We have seen the failure of the FBI, the CIA, Interpol and others that I prefer not to mention this morning. Because Canadians seem to want someone to be tough somewhere we are being asked to hurry along what we consider to be an important piece of legislation. In the Senate, we used to say that order excluded haste and precipitation. If you want to have something good, you take your time and you meet with success.

We are concerned. We know Canadians expect toughness, but it is our duty as senators to reflect and develop a good bill. For instance, I am not of the opinion that it will be an explosive issue in Quebec.

Some immigrants were too insistent that people should speak either French or English. This country was built by people who spoke neither, but whose determination to build this country was great. I would hope in due time you would consider that.

If this had taken place last March, we would be spending $1 billion now on the missile defence shield. Who is talking about that? The billions of dollars that are about to be invested and debated in the Senate were for the great missile defence shield. Why is it that, in this bill, there is no definition of terrorism? It is a difficult question. Every one has been asking that. Your definition of freedom fighter for some is the same as the definition of terrorist for others.

Ms Caplan: There has been a general view that if you are to have a definition of terrorism that it should be included in the Criminal Code of Canada and not in an immigration bill. We deal with evidence and we argue at the appropriate court for the ability to detain when we believe an individual poses a danger or a risk to Canada. That has been the view in the past and it remains the view of my department and, I believe, the justice department, as well.

There are a couple of points that the senator made that I will address. The first is to explain what will happen at the IRB because it is important that senators clearly understand that. We will have a new Refugee Protection Division, where in the first instance the individual will be referred for a hearing with a single member. The Refugee Appeal Division is the next step, which will be a paper review to ensure fairness and consistency. We expect that the judicial review will occur at the end of the second step.

Traditionally, the courts have waited until the end of the process. This will help us to effectively streamline because we will not have the existing process of multiple steps and multiple judicial reviews. This will allow a faster but fairer system because the Refugee Appeal Division, which is a paper appeal, will look at consistency and will ensure that fairness has been done.

On the issue of language that you raised, under the legislation it is not a bar in the new selection system, but significant points are given for knowledge of English or French.

All of the studies that have been done and a person's ability to integrate quickly and become productive in Canadian society say that language is a significant indicator of success. The better the language skills, the faster a person can find a job and the faster they will be successful in integrating and contributing to Canadian society. The new point system will be giving significant points for language because the evidence tells us that we should be doing that.

I believe that I covered the important points that you raised, senator, but if will there was something that I missed, I would be happy to answer.

Senator Prud'homme: As a comment, we are giving much new authority to immigration officers. He will have a list of people known as terrorists. He would have the strong authority to dispose of that case.

Do we have the knowledge to handle that situation? There are thousands of people to educate on the difference between people who are truly escaping freedom fighters and those people who are terrorist. We certainly do not want the terrorists.

Ms Caplan: The training has already begun on the security aspects of the legislation for all immigration officers. We believe that the training is an important requirement in order to make good decisions.

I would not suggest that every decision made by every officer is always a perfect decision. For that reason, we have put into place mechanisms to correct imperfect decisions. That is what we call due process and rule of law. All Canadians are proud of that.

I do not worry about giving immigration officers authority. They must have that authority to be able to make the decisions that Canadians expect them to make. That was a concern expressed at the House of Commons committee by those who made representations and presentations. I completely disagree with them.

The law gives immigration officers the authority that they need to act in the public interest. I would ask that we understand and appreciate the important job they do on the front lines around the world at our visa posts and at the secondary inspection line when people are referred to them when they come to Canada.

We are grateful to the customs officers who act under the Immigration Act on our behalf. We make sure they are as well trained as they can be. We know that often they are dealing with people who are looking them in the eye and doing everything they can to evade giving an honest answer. Sometimes they send someone to the inspection line who is annoyed and upset because they do not think that they should have been referred there.

The goal is to stop those from coming into Canada who pose a threat or who are inadmissible because of criminality or for one of the other inadmissibility provisions. At the same time, we want to be courteous and welcoming to those who have legitimate reason to be in Canada. That is the balance that our department tries to achieve. I am very proud of the officers. While not perfect, they are doing a fine job on behalf of Canadians.

The Chairman: Minister, I want to thank you for your generosity of time this morning. We appreciate your being here, listening to our questions and providing fulsome answers. The questions you are likely to get across the hall in the scrum may not be as interesting as ours, but they may be somewhat more difficult.

Ms Caplan: Thank you honourable senators, I appreciate your work.

The Chairman: Honourable senators, we will continue with the business of the committee. There has been a discussion between Senator LeBreton and myself regarding next steps. Subsequent to our discussion the leaders of our parties in the chamber have discussed next steps.

A number of people, including Senator LeBreton, Senator Roche, Senator Di Nino and others, requested that we hear witnesses in particular on two issues. One is the constitutionality of the bill and the Charter issue raised by members of the bar. The second is the issue of the role of provinces and the statements made recently by a number of provinces, Ontario, British Columbia and New Brunswick leap to mind.

We will not proceed to clause-by-clause study of the bill today. We will listen to those witnesses either next week or the week of October 22. This committee is committed to doing public hearings in the four provincial capitals out West during the week of October 15.

In terms of dealing with Bill C-11, we will stand adjourned to the call of the chair once Senator LeBreton and I have determined a date for the witnesses. It will be either next week or the week of October 22.

I suggest that we go in camera so the committee can revert to health care issues.

The committee continued in camera.