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

Issue 35 - Evidence

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

Senator Marjory LeBreton (Deputy Chairman) in the Chair.

[English]

The Deputy Chairman: We are meeting today to continue our study of Bill C-11, an act respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger.

Our first witness today is Professor Joseph Magnet from the University of Ottawa, Faculty of Law. Following your 10 to 15 minute presentation, we will proceed to questions. Thank you for making the time available to us today. Please proceed.

Professor Joseph Magnet, Faculty of Law, University of Ottawa: I am here at the request of the members of the committee and its staff. I am not carrying a brief for any interest group except one, which is a desire to serve the cause of justice and the honour and interest of our great country. It is my honour and privilege to appear before you to attempt to be of assistance to you.

I would like to begin by congratulating the department and the minister. This is the first overhaul of an exceptionally significant piece of legislation in a generation for our country. The work of the department is focussed, smart and has resulted in a bill of significant importance, simplicity, some elegance and much merit.

You have had before you the Assistant Deputy Minister, Ms Atkinson, who has highlighted some of the essential balances between cost, speed, efficiency of immigration processes and the rights of Canadian permanent residents and foreign nationals that must be struck. That is a crucial balance.

I have read the blues. I do know what you have heard. It is not my intention to rehash ground that you have already covered, but I noticed in Ms Atkinson's remarks that there was much talk about toughness. Since the department has set a baseline of being tough and in the wake of the great events that happened last month, and since the department set its mind on streamlining procedures, let me assist you by focussing on some of the rougher edges that the Senate, in its wisdom, soberly, may want to reflect upon.

I will address three issues and develop them for you briefly. Basically, I will speak on clause 34, which deals with inadmissibility for engaging in terrorism. I will focus on clause 43, which is an issue you heard something about, namely, that this is framework legislation with a very extensive regulatory power that you have seen before and worried about before. I do not want to go over old ground, but I would like to develop some concerns about that for you in a way that you have not heard before. I will also consider clause 72, which deals with the rights of judicial review of actions of immigration officers.

I will start with clause 34(1)(c). This makes permanent residents and foreign nationals inadmissible for engaging in acts of terrorism. The consequences of being found to be engaging in acts of terrorism for a permanent resident, as for a foreign national, are very serious. We must ask, "What is terrorism?"

This bill, unlike some previous British attempts that defined particular groups as terrorist, does not define terrorism. What would the department understand terrorism to be? What would those who deliver this proposed act come to understand? How would they go about that process?

Normally, a statute like this, should it be enacted, would be interpreted by what lawyers call in pari materia. Is there similar legislation on the Canadian statute books that might shed light on what is terrorism? There is not a lot.

You will be holding hearings this week on Bill C-36, the proposed anti-terrorism legislation. That bill has, as you are aware, a definition of terrorist activity that is quite wide. It includes acts or omissions committed in part for political, religious or ideological objectives with the intention of intimidating sections of the public and causing damage to health, safety or property.

As this definition in Bill C-36 may impact on the definition of terrorism in clause 34(1)(c) that is before you today, I have tried to think of some examples that might help us focus on the definition of terrorism. For example, there might be a statement such as: "Repent or the world will end," or "Do not vote PQ or you will risk a substantial civil conflict." Both of these statements would have intent to alarm or to cause anxiety. That type of thing is conceivably within the definition of terrorism, not only at the margins. The actions of a 19 year old student who occupies the office of the president of a university in the service of some 19 year old ideological cause, with the intention of trashing that office, could be palpably within this definition.

I think that honourable senators must consider whether this referential incorporation, or this interpreting clause 34(1)(c), in light of the other bill that is coming forward, causes concern. The interpretation of terrorism by statutes in pari materia or the proposed anti-terrorism legislation may not be the measure that ultimately is taken to define terrorism. We may have to search for some other sources to define terrorism.

Clause 43, which is before you, complicates this problem by allowing a definition of terrorism to be created by regulation. The regulations may, in fact, define terrorism, and that would not necessarily come back before this chamber.

It is also interesting to consider that the regulation-making power, at clause 43, which entitles the bureaucracy through the formal constitutional channels to define terrorism, does not require that such a regulation be laid before Parliament. In other words, at clause 5(2) there is a requirement that some regulations of this bill be laid before Parliament and there would be parliamentary oversight. There would be an opportunity for honourable senators around this table to consider the regulations. However, the regulation making power at clause 43 does not operate in that way. That is exempt from such scrutiny. Honourable senators would not have that scrutiny opportunity.

This, of course, is not a new problem to you. You have seen, on many occasions, an increasing tendency to legislate by means of framework legislation with the details spelled out in the regulations. This practice is for very good reasons. The technical work of the bureaucracy is carried on at that level, whereas broad general principles that govern who we are as a people and what we are trying to do are set out at this level in the framework.

There has been some criticism of the extent to which that movement has gone by the Supreme Court of Canada. The Supreme Court of Canada has laid the groundwork for constitutional challenges to overly excessive delegation of regulation-making power affecting the rights of the individual.

For example, I will refer to three cases. I will provide the staff with citations, but my good friend Senator Beaudoin will be well aware that a line of cases in the Supreme Court - Re Eurig Estate, West Bank First Nation, and, recently, the Ontario English Catholic Teachers - developed a principle of democracy.

The Eurig Estate case, for example, created the principle of no taxation without representation - a principle independently protected by the Constitution and finding a textual basis in the preamble to the 1867 Constitution Act. In the Eurig Estate, that principle of excessive delegation to the bureaucracy exercising a regulation-making power to impose taxes was found offensive to the democracy principle enshrined in the Constitution, such that those taxes could be upset. If that principle is there in Eurig Estate on a constitutional basis, the principle that excessive delegation to create quasi-criminal type offences - serious offences in which a person living in Canada with us as a permanent resident for many years, with children, with a job, with roots becomes inadmissible and is deported - the question is whether or not this principle of democracy is relevant. It is something the honourable senators around this table may want to consider.

The principle has been considered in the Supreme Court of Canada, but the courts are not the only interpreters of our Constitution. Our constitutional values are also interpreted, applied and identified as the "living glue" of our society by this place and by the other chamber. Honourable senators may want to consider if they are satisfied that there is adequate parliamentary oversight of what amounts to the creation of a very serious offence.

I would like to touch on clause 72(1). You have heard from the Canadian Bar Association on this clause, but I would like to develop some other dimensions of it. I would like to address the right to judicial review in a law court of actions of immigration officers and other immigration officials. Clause 72(1) makes the right to seek judicial review by the Federal Court, with respect to all matters, subject to an application for leave, which is new. I will develop that for you, but simply put, the application time is a mere 15 days. That time frame is considered short because more time is needed to adequately prepare for what needs to be done. It is a very short time in the sense that it is exceptional to the general rule of section 18.1(2) of the Federal Court Act.

We can imagine what the situation might be: A person is subject to a life-altering decision made by an immigration officer. That individual is now in a tight spot and has only 15 days in which to figure out what to do. First, he or she must find a lawyer with administrative law or immigration law expertise or specialty, and from another place they have to find such a person here. For example, if you were in Bulgaria and had to figure out how to negotiate your way because you were in a little trouble, you would find that difficult. Quickly, you would have to find out who was who and what to do. They must get some advice.

Many of these people do not have money, and so they have to figure out how legal aid works; it is not the same in each province. In fact, it is not even available in every province for these cases, as you have already heard. They must obtain an analysis of what happened and what rights, if any, they have. The lawyer must investigate the facts, put something together and prepare a written brief. All this must happen in 15 days. It is a very short time to do that.

Now, this application for leave to seek judicial review in the Federal Court can only be in writing. Only exceptionally will this bill allow an oral hearing before the Federal Court. Many of these written applications are done without a lawyer. I did many immigration-type written proceedings without a lawyer when I clerked at the Supreme Court of Canada for Chief Justice Dickson. We heard many such applications for leave. They are difficult to figure out because the applicant might not be skilled or literate, or because English or French might not necessarily be the first language. There are many such applications and there is not a lot of time to do them.

Peter Showler appeared before this committee and told you that he needs more resources to figure out better. This is what is building his backlog. In the Federal Court, there will be much paper, but the resources will stay the same. It will be harder to figure out because there is not a skilled lawyer to explain to the court what the cases are all about.

The problem is basically that the immigration officer makes a serious, jurisdictional error. There are three points that honourable senators might want to consider. First, there is not a right to seek judicial review, but there must be a pre-clear, an application for leave to seek judicial review. That is a very fundamental change.

The court will be dealing with a significant number of cases and the applicant now has to pre-clear to get the right to enter the court through this written proceeding. It creates more time, more expense and it thrusts a pre-clear filter before such a person, which is intended, frankly, to whittle away the non-serious cases. It may be a good or important idea because the department is not there to open the doors of the courts to everyone who wants to complain about everything under the sun. If the doors are open, everyone will complain about everything under the sun.

Honourable senators, you have to consider if this pre-clear is the right balance or if it goes, perhaps, a little too far.

Second, honourable senators will want to consider whether pre-clear in writing is too severe in the sense that it creates an appreciable risk of error of an erroneous determination by an immigration officer that a court will not be able to correct. That is really the question.

Third, is the short 15-day time an appropriate tool to reduce the number of cases? In other words, it is a short time period for preparation and completion of the paperwork and it seems as though we are saying, "We really do not want you here anyway. We hope many of you will just never make it here because you will not figure out how to get here within 15 days." Is that appropriate?

Finally, judicial review is a right associated with the rule of law. The core of the right of judicial review is constitutionally protected. Obviously, the way in which it is exercised may be regulated by the Parliament of Canada. However, it is a fundamental principle of our legal system that an individual seriously affected by government decision-making is able to hold government to account for its administration through a judicial review. Justice l'Heureux-Dubé, in a case before the Supreme Court of Canada, Baker v. Canada, put the matter of procedural rights very eloquently:

The purpose of the participatory rights contained within it is to ensure that administrative decisions are made using fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected to put forward their views and evidence fully and have them considered by the decision- maker.

Honourable senators have to consider whether this restricted right of judicial review - this pre-clear in writing in a short time - is an interference with those participatory rights.

I hope my remarks will help you in your work. It is always my honour and pleasure to come before you.

The Deputy Chairman: Thank you, Professor Magnet.

Senator Beaudoin: I have one question that has already been raised. Perhaps you would look at it because it is not as central. Clause 5(3) of the bill states:

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.

I find that strange. If it has changed, it should be before both Houses. I raised that point the other day with another witness, and I would like to know what you think. It mentions proposed regulations that have been laid before each House do not need to be so laid again, whether or not they have been altered. If it has been altered, it should be laid before each House again.

Mr. Magnet: I would like to respond briefly to that. At one point, a theory that the regulation would be crafted, laid before the house, and considered; if some t's needed to be crossed, or some i's needed to be dotted, the house did not need to concern itself with that. It was a technical means of doing things.

However, the kind of regulation-making power that exists here brings your question into serious relevance because the regulation-making power here travels in another step down a road of government bureaucracy. Clause 5(3) does say that a regulation that is laid before the house, but then goes and comes back with a fundamental change - which is possible, given the scope of the regulation-making power contained in the act - also does not need to come before the house. The proper way to consider an answer to the question that you pose is: Is there sufficient parliamentary oversight consistent with the principles of responsible government and democracy of this regulation-making power in the social context where we are not talking about gasoline standards and temperatures at which gas is cracked into a different products, but about fundamental rights of people to be members of our society and our community and to live among us?

Senator Beaudoin: My second question is related to that. For at least 20 years, we have been giving fantastic power of delegation to the Governor-in-Council. We give the Governor- in-Council the power to be much more precise than Parliament itself. The legislators are the Parliament. The Governor-in-Council is the executive. When they have the power to legislate or to draft regulations, they should stay within the mandate that is drafted by Parliament.

However, since 1970 or 1960, we have been giving more and more power to the Governor-in-Council and it is going too far. It is an abuse. If you look carefully at some clauses in Bill C-11, you see such abuse. Parliament should be much more responsible for legislation. Parliament is not jealous enough of its own power. We delegate too much. That is one thing that has attracted my attention to this bill, namely, the clause dealing with the regulations to the Governor-in-Council. That is my second concern.

My third concern is the question of appeal. You referred to it at the end of your remarks. The right of appeal is part of the rule of law in our country. We are criticized for certain appeals that are not too productive, but it is up to Parliament to change its appeal system. I would like to know what you think about that.

Mr. Magnet: I share your concerns about parliamentary oversight, however the problem is very sophisticated. If there is to be parliamentary, as opposed to bureaucratic, oversight of the regulatory base the consolidated regulations occupy 25,000 pages and the regulatory plan is very intense in each year.

The interesting thing about our system of government is that there is a capacity in the bureaucracy to oversee regulation by legislation, since the life of the bureaucracy is given by each regulation. Each one lives on top of a regulatory basis and plays with it, grooms it, tends it and waters it. That capacity is not or not yet within the committee system and the staff system of the chambers. To put it there requires a certain alteration of our system or a certain strengthening of the muscle of committees such as this.

We are aware that we have a democratic deficit in our system of government. We must be alert to whether that deficit is properly incurred, because it allows us to do the kinds of things that we want to do. Or are we drawing on it and making it larger in ways that are antithetical to our fundamental principles? I think this is the calculus.

I realize I have not given you a pinpoint yes or no answer, but I share your concern. It is a very well placed one, a subtle and sophisticated one in which the range of answers is likely to be also quite subtle, sophisticated and, in some cases, come with great cost.

Senator Cordy: My background is not as a constitutional expert, so it is somewhat difficult following Senator Beaudoin.

You talked about the definition of "terrorism." That certainly is something we have heard, namely, that we need to define it. However, few organizations or countries have been able to define "terrorism" or "terrorist activities."

How do you get a definition of "terrorism?" You talked in your preamble about some of the exceptions that would be covered by the proposed definition of "terrorist acts." How do you get a definition of "terrorism" that is broad enough to cover the unanticipated - because that is what terrorist acts are - while at the same time it excludes the examples that you gave such as the student demonstrator?

Mr. Magnet: It is necessary to work at it. With the examples of the student demonstrator and others, I realize it is a difficult problem. However, terrorism is a theatrical display of horror to get attention for a cause that otherwise would not make it on to the public agenda. This is what it is. It is the creation of horror and making sure that that spectacle will be trumpeted into people's consciousnesses in order to alter their priorities.

If we want to capture specific acts it is, as you say, very difficult, because there are many ways to get attention. There are many ways to get on to the public agenda. What we have seen is an increasingly virulent means of doing it. I believe that to properly draw this equation you need good strategic information. In other words, what is the threat that we currently face? We craft our legislation to meet the real, not the imagined. What is the real threat? To have a good definition of terrorism, to protect us against what we fear, we need strategic information as to what is threatening us, including, as you say, senator, erring at the margins of the unforeseen.

I think we are in a bit of a gap here. We do not have the strategic information we need. I cannot speak with certainty about what CSIS knows and does not know, but I would be surprised if CSIS is strategically on top of our current challenges. You have had witnesses before you to speak somewhat about that. I read that and I did not come away with a tremendous sense that I no longer need to take Valium.

I believe there is a strategic gap and that we need to direct our attention to filling it, together with our international partners. We need to know what is threatening us and we need to craft our legislation in the image of those threats. When we are crafting the bill, we need to engage in student demonstrator-type exercises to see if we are going too wide.

Perhaps I will develop these remarks on Wednesday before the committee studying terrorism, but I believe what has happened here is that, as in 1970, when there were two kidnappings we did not know if there were two FLQ cells or if there were 200 or 2,000. Therefore we did something large and discovered that there was only something small there. To a certain extent we can say we did the right thing because the problem was solved but, again, at a considerable cost. We have to soberly reflect on whether that is right. Again, we do not know whether there were four suicide bombers or 400 or 4,000.

We exist in this room, I believe, with all due humility, in a bit of a strategic gap. The legislation to balance rights against threats needs that gap filled, so that we can make the equation whole.

Senator Cordy: I would agree with what you are saying, but it almost makes me feel more convinced that it is difficult to get a definition that would fill the unanticipated. When you are looking behind, 20-20 vision is clear, but because we do not know what will happen, we try to make a bill that will look at what will happen in the future. Your comments certainly have indicated that that is the way we should go.

My next question has to do with looking at your comments on leave for judicial review, and you talked about the fact that people would have 15 days. If you were outside of the country, you would get 60 days. Clause 72(c) says that the judge may allow an extended time for filing. I am wondering if you feel that this clause would cover some of the extenuating circumstances that you mentioned in your discussion earlier?

Mr. Magnet: No, I do not. I say that as a lawyer recently asking the Federal Court to extend its discretion to give a quick hearing where there was an emergency situation of suicides on an Indian reserve. The Federal Court does not extend these discretions lightly. I do not believe that you would find in the Federal Court that safety switch that you are looking for that is perhaps necessarily here.

Speaking for myself, the way to strike the balance is to strike the balance. Honourable senators need to be satisfied that the balance is struck and not think the courts will deal with it if we have it wrong. The balance must be struck here.

Senator Cordy: I am not a lawyer. If you make an application for judicial review, must you have all the information in your application, or do you only need to submit that you will, in fact, make a leave for judicial review?

Mr. Magnet: A judge of the Federal Court would be someone like me who has switched jobs, has been a law professor or a lawyer of 25 years in practice. When you come seeking leave for judicial review, that person would be thinking, "I am busy, we have a big caseload, we must get through our caseload." The judge would want to be shown quickly why he or she should be concerned about this case. What is really in the case? We speak of prima facie cases, but the judge wants to know whether there is really something here; is this serious or is this wasting time? That question must be answered when there is not a great deal of time to look into the matter.

To convince a judge of that, you have to be making your case. You cannot say, "I will be looking into this, I will be finding something, and maybe there is something there." The judge would want to know why you did not have it. The leave process can be intensive and require a thorough justification.

Senator Cordy: If you are giving your notice within 15 days, do all the details need to be in the notice, or do you just have to give notice that you will be seeking leave for appeal?

Mr. Magnet: You must convince the judge in the leave application that the application, if leave is granted, will be serious. That is your opportunity to do that.

Senator Andreychuk: I want to go back to clause 34 that you were talking about, the phrase "engaging in terrorism" and the difficulty of deciding on a definition. You then tie it down to the appeals or the administrative review.

First, on the definition of terrorism, when it stands alone this way, do you know of any guidelines or any rules - I have not been able to find them - within the immigration system in Canada that would help us define this as a serious matter as opposed to one that might be included in your category young people with lessons learned? What are the trends in interpreting this?

Mr. Magnet: To my knowledge we do not have a high volume of apprehensions of suspected terrorists. We do have a procedure for serious criminality. The courts have considered it and the courts have given the department quite a leeway, particularly in the Chiarelli case in the Supreme Court of Canada. However, I do not think that we have a great deal of experience with this, and I do not believe that we have a sophisticated mechanism within the department in respect of terrorism, as opposed to serious criminality or organized crime.

Senator Andreychuk: You have commented on clause 72(1), and I take your point there about the appeal mechanism. Could you comment on clause 64(1)? Would your thinking be similar where it states:

No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor, or by a permanent resident if the foreign national or permanent resident has been found guilty to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.

Would your opinion be the same about this clause as it is on clause 72(1)?

Mr. Magnet: No. I did read in the blues of the remarks of the Canadian Bar Association before you, and I know that they are very concerned about it and rightly so. To my mind, it is a balancing exercise. With regard to the delays, costs and the caseloads of these appeals, there is a balance to be struck in terms of how extensive a right should be given because people are here pending appeal. Many of these appeals will be merely to delay the process. We know that.

If you create a system, people press on the edge of the system, and the system is not always used in the right way. The intention is to screen out more of these less meritorious appeals in an effort to streamline, save costs and improve decisional time frames. I understand that a good system must run well. It must be cost efficient. It must be businesslike. I understand those objectives. The submissions of the Canadian Bar were very moving on the point. I cannot really enlighten you beyond that. I did not go into an area that I know is of great interest to you because they have covered that ground.

When I say that I do not equate the right of appeal before the immigration appeal division under clause 64 with the right of judicial review, it is because the right of judicial review is fundamental. It is fundamental to our system. If something serious is caused a person by the bureaucracy - by the omni-present administrative state in which we are happy to live - the fundamental right of our constitutional system is to seek judicial review. This has been taught in administrative law for the past 30 years, and now it has a constitutional basis. It is a right that a court will look at the event before the state can do something to a person. We do not have a society where someone shows up, claims something serious has been done and that is the end of it without any accounting.

The appeal is to be seen as a cost benefit type thing in clause 64. Giving this appeal provides the benefit of reducing the risk of an erroneous determination. The cost is the cost of the appeal, and Mr. Showler quantified it for you. That is different than the fundamental right in our society to go to court if something terrible has happened and claim that it is not justified.

Senator Andreychuk: Did you put your mind to the fact that "permanent national" or "foreign national" as defined through this act includes a stateless person? Does that heighten that critical analysis that you make in our responsibility to stateless people? In addition, if there is not this judicial review, as you are pointing out, could these people not be repatriated to places where the death penalty would be invoked?

Mr. Magnet: I have to confess, senator, I have not considered that.

Senator Roche: I would like to, Professor Magnet, thank you very much for your testimony here today. I would like to return to the terrorism aspect.

You drew our attention in clause 34 to the provision that a permanent resident would be inadmissible on security grounds for (c) engaging in terrorism. I understood you to be saying that the regulatory process would cover the application of that.

Bill C-36 contains a definition of terrorism, albeit protracted. Should these two pieces of legislation - Bill C-11 and Bill C-36 - be made consonant with respect to the definition of terrorism, so that there would be no doubt in the application of Bill C-11 as to who is a terrorist and thereby not admissible to this country? The person making the decision would be able to fall back on the definition as explicated in Bill C-36 rather than to have, perhaps, a subjective interpretation under regulation.

Mr. Magnet: Thank you. It is really an excellent question. Bill C-11 is a long time in the manufacture. It has come out of the department's cooker in this form probably prior to the events of September 11. Bill C-36 is dripping with anxiety and we see an attempt to capture everything that might harm us.

The thought that now there should be some harmony between the two definitions is a very rational and helpful thought. As a society and as a Parliament, we will have some very energetic discussions about Bill C-36. Perhaps, when that debate settles down and with the advantage of some hindsight after Bill C-36 operates for a while, that might be a better time at which to search for that harmony. There is a certain degree of excitement and urgency about Bill C-36. Perhaps we do not need to pour into the Immigration Act at this time.

Senator Roche: I think that Bill C-11 is not dripping with anxiety, and thus is a long-range consideration. Someone said that it could be 25 years before it is readdressed.

I would like to try to pin you down just a bit more on whether the harmonization of the definition of terrorism as explicated in Bill C-36 should be built into Bill C-11 now, rather than later. Is there a possibility of confusion in interpretation based on regulation here in C-11 and in C-36, where it is explicitly stated in legislation? I am grappling with whether Bill C-11 should be amended in order to bring into it immediately the definition of terrorism that is found in Bill C-36.

Mr. Magnet: Senator, without being able to thoroughly resolve the debate, might it be possible for you to be comforted by the provisions to which I have drawn your attention in clause 43 where it is noted that terrorism is subject to definition by the bureaucracy? I have made some remarks indicating concern about clause 43 from some people, but it may be that the concerns that you are raising might be addressed by the ability to have ongoing regulatory definition of terrorism in clause 43. It might be that you would find yourself in the company of like-minded legislators on that issue.

Senator Roche: Perhaps the definition of terrorism that is found here might be inserted into the regulations for the bill.

Mr. Magnet: That is the intent of the bill.

Senator Roche: I will leave it at that.

I want to return to the clause 64 that Senator Andreychuk raised a moment ago. This is a part of the bill that has caused a number of our witnesses, as you know, some considerable concern. I listened to you as carefully as I could when you were speaking a moment ago about clause 64(1). Would you take me through your thinking again?

It has been brought to our attention by a number of witnesses that the bill should be amended in respect of clause 64(1). Would you support such an amendment?

Mr. Magnet: I have not come before you to be casting a vote, but to assist you. I also have not come before you to say on the one hand and on the other hand and I cannot make up my mind, that is why I am a professor.

It may help you as a legislator to think about clause 64(1) from a cost benefit analysis. I think this is the right way. The benefits would be that the more procedure, the more appeals you have, the less the risk that you will make an erroneous determination. In a big system like ours, with upwards of 300,000 cases in a year, we will make mistakes. The mistakes, for the people caught in the system are serious and life-altering events. As a society, we do not want to make a mistake about a permanent resident who lives with us. We cannot eliminate mistakes completely, but we can spend, in procedure, to reduce the risk.

Clause 64(1) is one of the procedures, with the cost that Mr. Showler told you about, to ensure that we do not make more mistakes than we have to. In other words, if the appeal were allowed, it would reduce the risk. I think that is the way to think about it. There are some other ways to think about it and perhaps this would assist you. Again, it is by no means my purpose to duck your question, but only to be of help to you.

The language of clause 64(1) is in itself very wide. In other words, the appeal is denied to a person who is inadmissible on grounds of violating human rights. "Human rights" is a phrase that is very important to the ethos of our time. For at least the last 50 years, we have been in a rights revolution. However, the concept of human rights, as dealt with every day in the tribunals and courts, includes things that are not tremendously serious. In addition to including the tremendously serious things that happen here, the loss of status under the Act also includes some offensive comments, some misunderstandings that go on between people, some nasty people doing nasty things in the wrong places. Clause 64(1) also denies appeal to these people. We must consider whether we want to go that wide. In creating risk of error for deprivation of things to those people who might have done something not very nice but not tremendously serious, do we also want to have a significant risk of error of depriving them of a life-altering type opportunity, such as being deported after having been among us for 10 years?

Senator Roche: I thank you very much. I have no intention of attempting to put words in your mouth, but I will take your answer as strengthening my own resolve to seek an amendment on clause 64(1) when the time comes.

Finally, I know that you do not want to indicate that the bill should be amended here or there, but we are looking for guidance here. Are there any points in this bill that you find ought to be changed - serious points that injure your soul as an expert in the legal processes of Canada?

Mr. Magnet: Thank you for putting it so eloquently. The Canadian Bar Association made some very moving points. I was particularly struck by the police witnesses. You were very courteous to them, but I believe they were unable to satisfy you about strategic concerns. I was surprised, frankly, in reading how they operate abroad, to find how little capability they have. I am not sure that I can say that it injured my soul, but it did alarm me to see the small intelligence capability that they have, despite the very eloquent way in which they expressed themselves here.

Senator Di Nino: Welcome, professor. Obviously, some of the more pointed questions have been asked. If you do not mind, maybe we can dwell for several more minutes on clause 64.

There have been some strong opinions that the clause would very likely to be challenged in the courts. Would you agree with that?

Mr. Magnet: Yes.

Senator Di Nino: There have also been some comments during these proceedings that suggest that in order to deal with some of these issues, perhaps some consideration should be given to changing the Charter. There was even some thought that the enactment of the notwithstanding clause should be considered. Do you have any thoughts on either of those two points, as to whether either initiative should even be considered?

Mr. Magnet: Yes, I do. It follows from my earlier remarks. The Charter of Rights is not a suicide pact. It does not prevent us from taking measures that are reasonable and proportionate to things that threaten us. I say that notwithstanding section 33 and the ability to override Charter rights. Even without going there, courts are not in the habit of putting legislators in a straitjacket so that they cannot respond to urgent, pressing problems with the tools that they need.

There is certainly no evidence in the 20-year history since the proclamation of the Charter of Rights and Freedoms that it has been an obstruction to serious security work. There is simply no evidence of that. There is a security gap, but it is not one brought about by the Charter of Rights and Freedoms. Until there is evidence of that, talk of changing the Charter is simply throwing words in the air so that everyone will feel better.

However, we are not doing what we really need to do, which is to close the strategic gap. Talk of using the notwithstanding clause in section 33 of the Charter is more of the same: talk to create disrespect for the civil liberties society that we have built, so that some people feel a little better. In fact, we are not doing what we need to do, which is to equip our security services with the resources to have a safe perimeter.

Senator Di Nino: Thank you.

Since the interpretation of the Singh case, has there been any other jurisprudence that addresses these concerns - any other cases that you can bring to our attention that, in effect, would enlighten us further on this issue?

Mr. Magnet: There are many other cases. I would be happy to send you a list, Senator. I mentioned Chiarelli; Baker is obviously critical. There are many constitutional, administrative and immigration law cases that will help you understand some of the concerns that the courts have had with fair proceeding in immigration matters.

Senator Di Nino: As you have expressed, some feel serious concern about clause 43 and the government's ability to legislate through regulation. Yet, you seem to have stated - unless I misunderstood you - that some of these definitions would appropriately belong, or would better serve Canadians, within the regulation framework. Perhaps I misunderstood you, particularly as it dealt with the definition of "terrorism."

Mr. Magnet: Well, I am sorry if I expressed myself with inadequate clarity. I have a concern in respect of clause 43, which allows a definition of "terrorism" to be struck in the regulation without coming back before the Houses for parliamentary oversight. I would like to see greater justification for the necessity for that. I would put it on a constitutional plane - it cuts against constitutional norms of parliamentary oversight, responsible government and democracy.

Could this be challenged in the courts? I believe that it could be challenged in the courts, and I tried to indicate on what basis.

Senator Roche, I hope you will forgive me, without being able to give a direct yes or no to that, but I have concerns about it. I would invite senators, if they share my concerns, to demand justification for it from the police and from the department. It may be that there is information within the police and within the department that justify it, but I have not seen it.

Senator Andreychuk: You have said that in assessing this bill we weigh the necessity to streamline, as opposed to giving full and complete due process or rights, and that that is always a balance. In this streamlining, there have been some notorious cases noted in the newspapers that have gone on for years. I noted, for example, that a decision has not been given within a board for two or three years and they come back and say they have 40 boxes. I instantly think of the Microsoft case, which required more than 40 boxes and was within a shorter time frame.

Is not some of this streamlining that is necessary in the conduct of the administration of the process? That is within the purview of the department and the government in managing case loads. I am thinking that we have done this in criminal courts when there is a backlog of many cases and people get energized about that - either we release more bodies to cover that, or there are some administrative arrangements where everyone is brought through to try to rationalize the case loads, to impose internal professional conduct, et cetera. Is that not one of the things that the department and the minister should have been thinking of within this act, rather than entrenching it in the law?

Mr. Magnet: Yes, senator, your remark is eloquent and this is the thinking that has occurred throughout the legal culture. Certainly, in the criminal court, we ask ourselves, when most cases are decided without a trial by a plea, why are we throwing all of the resources at the trial process? Why do we not throw the resources at the front end to facilitate plea discussions and plea negotiations?

Throughout the administrative process, that is a question that we have been asking. Can we not front-load resources to deal with these things without procedure? Can we not have a new architecture in the bureaucracy that contains its own checks and balances at lower cost, higher speed and greater volumes?

I believe that this is the right calculus to apply to some of these questions. In other words, with respect to those meaningless appeals that have been hanging around with 40 boxes for two years, is it the right tool to say that it should have been brought within 15 days, otherwise it could not be brought at all? In one of those cases that has been hanging around - and there will be some thousands of them - there will be someone like you or me who simply got caught up in the wrong thing and really did not do anything wrong. A mistake will be made and a serious injustice will be done as a result.

This is the right kind of thinking and the right kind of calculus and it is an issue to be pushed upon the department when it comes back before you.

The Deputy Chairman: Professor Magnet, I thank you on behalf of the committee for appearing before us today. You are quite right, we sought you out to hear your advice on how to deal with some of the more contentious issues in this bill.

Our next witnesses are Mr. Francis Gervais and Ms Carole Brosseau from the Barreau du Quebec.

[Translation]

Mr. Gervais, Bâtonnier du Québec, Barreau du Québec: The Barreau du Québec is pleased to have this opportunity to come before the Committee to present our views on Bill C-11.

I am accompanied today by Ms Carole Brosseau, who is with our Research and Legislation Division, and who, along with the rest of the team, has been reviewing this Bill since it was first introduced. I would like to give her a chance to present her comments on Bill C-11, after which I will conclude with some additional remarks.

Ms Carole Brosseau, Lawyer, Research and Legislation Division, Barreau du Québec: Thank you for this opportunity to appear before the Committee to present our views on Bill C-11. I want to apologize for some of our experts and members of our Bar committee who would have liked to be here today but were unable to make themselves available due to the short notice.

First of all, Bill C-11 has undergone a number of changes, but the clarifications introduced in this Bill are both significant and meaningful. As early as 1998, the Barreau du Québec took a favourable position with respect to rules that differentiate between immigration and refugee issues. Therefore, we are happy with the way Bill C-11 is currently drafted.

However, in clause 5 and throughout Bill C-11, we have noted the very broad regulatory power conferred by this legislation, and because of a built-in flexibility, it is clear that this is quite an extensive regulatory power. Regulations create rights. The Standing Committee on Justice proposed an amendment with respect to the laying before both Houses of Parliament of certain regulations. That amendment is now part of the Bill you are considering. Although we believe it is a step in the right direction, it is not enough.

For example, regulatory powers under the Proceeds of Crime Act that passed a year ago provided for pre-publication of regulations 60 days in advance so that interested parties, such as the Barreau du Québec or others, could make their views known on the content of the regulations and their impact on either the legislation itself or money laundering.

Although this Bill provides for the tabling of regulations, there is no pre-publication period set out to allow people an opportunity to make criticisms or suggest improvements - because criticism can be constructive - to the content of the regulations. We believe there is a need to go a little further and allow for comment and careful review of any proposed regulations to be passed in support of this Bill.

My second point relates to the powers of immigration officers, as set out in the legislation. As you are aware, clause 138 provides that immigration officers have the authority and powers of a peace officer. About a year and a half ago in Quebec, given that the powers of peace officers were being broadened on a regular basis, it was decided to introduce a code of ethics for police officers. For the same reasons, the Barreau du Québec favours including a code of ethics in regulations respecting the conduct of immigration officers. This is particularly necessary because at the present time, when someone tries to bring a complaint against an immigration officer for abuse of authority or similar reasons, the response given, to prevent an investigation from going ahead, is that this is strictly an industrial relations matter. The fact is, however, that this extends well beyond the limits of labour law. The powers of search, arrest and detention that immigration officers can now exercise must be framed in a code of ethics that would apply strictly to them. The resulting transparency would be beneficial both to the government, Canadian citizens and others who may want to avail themselves of the provisions of Bill C-11.

As regards the inadmissibility provisions under clause 30, they are problematic particularly as regards the tests set out in the Bill. It talks about reasonable grounds to believe. That test is really quite inadequate. We can come back to that later. A parallel can be drawn with Bill C-36 that was introduced after Bill C-11, but it is certainly a very poor test to apply.

With respect to misrepresentations, clause 40 in particular talks about withholding material facts or being reluctant to answer questions. When a person enters Canadian soil, he or she is not necessarily entitled to seek counsel at the time of arrival. Demonstrating such reluctance could have very serious consequences. The individual runs the risk of being removed and losing his or her status. Other than the exceptions, the consequences are quite far-reaching.

In order to counter that, it is absolutely essential that an individual entering Canada be properly informed of his rights, that he be entitled to seek legal counsel and have access to very specific information about child-care services, for example, or legal aid available in the region corresponding to the individual's point of entry into Canada. It is the whole question of confidentiality when the Federal Court or a judge has jurisdiction to determine whether certain information will or will not be passed on to the individual. Here, again, we would draw a parallel to C-36 in a number of respects. We believe it is important - and this is not particularly clear when you read the provisions dealing with confidentiality of information - to ensure that a judge has the right to review the entire file and that he is able to provide a summary of the information as soon as possible to the individual concerned, to allow him or her to make full answer and defence.

There is always a conflict between national security and the right to make full answer and defence. It is really a matter of balancing out the disadvantages. That is exactly what we are currently experiencing. It is very important - and we are indeed in favour of the judicial review approach under the circumstances - that the judge have a proper right of review.

I would also like to make some comments with respect to the ID card proposed for permanent residents. I have no objection to this. Ms Caplan announced several days ago that this card will replace the landing record. I must admit the card will be much more convenient. This is a valuable approach. However, where the card might not work so well - because we don't have all the details at this point - is with respect to the information it will contain. We are talking here about summary identification - in other words, the person's name, address and date of birth.

It is not possible, with such minimal information, to determine the person's profile.

I will now turn it over to Mr. Gervais.

Mr. Gervais: I would like to conclude by addressing a point that we believe is of the utmost importance. The Barreau du Québec, through a variety of representations made both to the federal government and provincial legislators, has always questioned the composition of organizations - be they of a judicial, quasi-judicial or administrative nature - whose role it is to make decisions about important matters. Our questions in this regard pertain mainly to the independence and impartiality of the members of such organizations. In a decision relating to immigration matters handed by the Supreme Court on October 18, 2001, in the Law Society of British Columbia v. Mangat case, the Court talks about the principles of independence and impartiality, reminding us of the importance of security of tenure, financial security and institutional independence for members of such organizations.

Some questions do spring to mind when reviewing the provisions of clause 153 of the Bill. I understand that this clause provides for people to hold office for a term of seven years, but there is nothing there with respect to reappointments or the appointment process per se. The clause simply states that members are appointed by the Governor in Council, without there being any specific kind of skills required, no external committee formed, no consultation of any kind and without considering standards that have always been enforced by the courts and the Supreme Court of Canada. The clause simply says that appointees are subject to removal; no process is in place or even described in the legislation whereby a commissioner who became subject to a removal order would at least be in a position to argue his case.

The system being proposed here is unusual, in that there seems to be a desire to let the Board deal with everything internally. First of all, there seems to be a desire to set aside judicial tribunals. This can be seen in powers granted the Immigration and Refugee Board, both at the trial and appeal levels, as compared to the limited powers available in cases of judicial vocation.

We are also struck by the fact that there seems to be an attempt to considerably diminish the role of legal experts within the Board. Let me explain what I mean. Clause 162 states that each division of the Board has exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction. Such questions will be decided by a single commissioner. However, when you look at the specific qualifications for the position of commissioner, you quickly see that the composition of the Board is such that few people having any legal training are required. I realize that other types of expertise may be needed and that questions of law are not the only ones to be decided, but important issues can arise and it is important to know that there is a desire to have such issues examined before a court of law.

Clause 167 also provides that a person can be represented by a barrister, solicitor or other counsel, or that someone can be designated for that purpose. But exactly what type of person would be designated? Once again, I come back to the Supreme Court ruling of October 18, 2001 in the Law Society of British Columbia v. Mangat case, when again, the Supreme Court recognized that in our society, we have barristers or solicitors that act as legal counsel because they are members of the Bar. As members of the Bar, society can expect such individuals to perform their work according to certain standards of discipline and be subject to mechanisms relating to professional responsibility, liability insurance guarantees and guarantees pertaining to the behaviour of individuals who may represent other persons. There is now recognition of the option of having other people represent lawyers.

The fundamental point here for me, as both a lawyer and Crown attorney, is that I can provide guarantees. I have no objection to other persons representing people who are the subject of court proceedings. That is what the legislation already provides, and the Supreme Court makes mention of that fact. But what guarantees will such individuals have to provide? In other words, any person off the street - and I am not saying they are all like that - could pass himself off as a legal practitioner without having any specific legal skills or training, without being able to provide guarantees of any kind, without having insurance and without being subject to professional inspection. We have seen similar situations where we were required to intervene because people were engaged in the illegal practice of law before certain administrative tribunals. Once again, we are opening up administrative tribunals to charlatans while, at the same time, taking away the possibility of going before a court of law.

I find it surprising that clause 174 states that the Immigration Appeal Division is a court of record. About a month ago, the Quebec Court of Appeal was asked to rule on the constitutionality of an administrative tribunal in Quebec. It determined that the administrative tribunal was indeed an administrative tribunal, rather than a judicial tribunal, because it did not have the powers of a court of record. The first thing I read in clause 174, however, is that we are now creating an administrative body having powers that bear a striking resemblance to those currently exercised by judicial tribunals, or what are called courts of record. The Appeal Division is thus being made into a semi- or quasi-judicial court of record at the same time as decision-makers with a background in law are being cast aside and the opportunity of bringing an issue before the Federal Court is being removed. Clause 71 provides the right to proceed with an application for judicial review but according to paragraph 2(d) of clause 72, that application can be disposed of without personal appearance or representation based on nothing more than a review of the file.

I believe the wording of these provisions must be re-examined, and insofar as there is a desire to move quickly on this, I believe it would be possible to do so. There are rules in place, but there is also a need to protect the rights and privileges of people who come before commissioners or officers.

Clause 167 refers to the fact that someone can be represented before the commission, but to my knowledge, other provisions in the legislation are such that representations can be made to officers or to the minister. There is no provision stating that such individuals can be represented by a barrister or other counsel. I see that as a weakness, if we want the legislation to be truly administrative in nature.

Also, we know that through regulation, we will be tempted to consider and accept people that come to Canada to enter professional practice. One has only to read the Supreme Court's ruling in Law Society of British Columbia v. Mangat to see that appointments and criteria with respect to professional practice are a provincial responsibility under sub-section 92(8) of the Constitution.

We realize that this is not within the purview of the Committee, but we have always had strong feelings about it - which brings me back to my initial comment. In each of the provinces, systems are in place relating to disciplinary rules, means of verification, inspection, and criteria that set a high standard to be met by people allowed to enter into practice. Why? To represent other people. Once again, we would refer back to what the Supreme Court said in its 1989 ruling in Andrews v. Law Society of British Columbia. In the absence of an independent legal profession, and I quote:

[...] having the necessary experience and skills required to perform its specific duties in relation to the administration of justice and the legal process, the entire legal system would find itself in a precarious position.

That is what the Supreme Court has said. So, please, don't allow people with legal training to be shunted aside. We have been trained to represent people on the basis not only of facts, but of questions of law that go to the heart of our training and our accreditation as professionals.

The position taken by the Barreau du Québec is one of balance. We understand there are prerogatives the minister may wish to exercise; we have no major objection to that, but to ensure the appropriate balance, we have to preserve the rights of the affected parties, of the people that could benefit from the process and of the various actors who may be called upon to play a role in this context.

Senator Beaudoin: I would like to begin by thanking the representatives of the Barreau du Québec for being with us today. Welcome. We are always pleased to hear from you, particularly on bills such as C-11, C-7 and C-36. It's always nice to hear a different perspective, particularly when it's based on legal principles.

Ms Brosseau, I very much liked what you said about the fact that we have too much of a tendency to rely on delegated legislation. That is not only the case in Ottawa. The same applies to Quebec City, Toronto, Halifax, Vancouver - indeed, all the major cities of Canada. I think this is a practice that is subject to tremendous abuse. Particularly in difficult bills such as Bill C-11. We see the same thing in Bill C-7. As for Bill C-36, we may escape that to a certain extent because there is less delegation involved, given that it deals primarily with the criminal law.

Do you have any suggestions as to a possible cure for that increasing tendency to rely on delegated legislation? Of course, we can't avoid it. Parliament cannot do everything. The Governor in Council has a very important role to play, but I am wondering whether we, as parliamentarians, are doing everything we can to eliminate the kind of abuse of this practice that we are seeing throughout Western countries at this time.

Ms Brosseau: The real problem is legislating via regulation. That weakens our democracy. That is the reason why we have always criticized the practice of using regulations to legislate. Even though we trust our elected representatives, engaging in democratic debate about how we think things should work can only improve or strengthen our legislative and legal systems.

For one thing, there is more and more legislation. It seems to me the number of new bills and the pace at which they are passed into law are such that we have no choice but to get around the system by relying on the use of regulations. Previously, much more time was taken to prepare legislation. Now, things move very quickly, either because of events or the need to react quickly, or because of the current pace of the legislative process.

You asked me whether I think there is any way of avoiding a situation where regulations would be too prominent and have a negative impact on legislation. I think we need to consider reviewing our Regulations Act, particularly the federal act, to always require pre-publication of any proposed regulations. We have criticized that weakness in many pieces of legislation. As I was saying earlier with respect to the Proceeds of Crime Act, provision was made in that case, but it was an exception. It came about as a result of tremendous pressure, particularly because of the impact of that legislation on professional bodies. Thus provision was made for pre-publication, consultations, and so on. I think that would be a way of countering this new wave or reinstating democratic control over the legislation itself.

In this way, the law could not be completely distorted in favour of regulations that would not be subject to the same controls as the law itself. That may be a possible solution. I would certainly suggest trying it. That's why we pointed out earlier that clause 5 does not go far enough, despite the amendments made to the Bill by the Standing Committee on Justice and Human Rights. As you can see, it is always useful to hold consultations when bills are being examined. They often result in better legislation. That would be one way of accomplishing such an objective.

Senator Beaudoin: I have read certain criticisms in the newspapers of the right of appeal, with respect to both the Immigration and Refugee Board and other such bodies. As far as I am concerned, the right of appeal goes hand in hand with the rule of law. In a democratic system, there is a trial court, an appeal court and a supreme court. I am a strong believer in the value of this system. I also believe in the value of appeals before courts of law or administrative tribunals. Where this tends to cause problems is for people who come to Canada as immigrants or seeking refugee status, because the process can be lengthy. There are people who have been living in Canada for five or ten years now whose case has yet to be resolved. What is your reaction as a lawyer? This question is also addressed to you, Mr. Gervais. I would be interested in hearing your views. Politically, this is a matter that falls under our responsibility, but for legal practitioners, the fact that the number of appeals is forever growing is problematic.

Ms Brosseau: Your question is both general and specific. I guess I will move from the general to the specific. I think it's important to say that the Barreau du Québec is always a little touchy about any limits being placed on remedies. I am showing moderation in my comments today. This is something that bothers us a great deal. Our predecessor referred to clause 64 and a variety of issues associated with the limitations placed on everything related to security, serious criminality, as well as the fact that there is no appeal, including where misrepresentations are involved.

More specifically, when you look at the legislation, with respect to refugee status, what is provided for is an administrative process calling evocation. However, evocation is granted on leave and the final decision on evocation, which is the right of review of an administrative decision by a common law court, has the effect of extinguishing rights, because it is a final determination. It's carefully framed and that means there are no more rights. So, if you limit the right of appeal, you also limit rights.

As you were saying earlier, I think there is a purely political aspect to this. If you are asking us what we think, the right of review - and this is what we said earlier - with respect to evocation, must operate ipso facto, particularly within the framework of legislation such as Bill C-11, given that the rules of the Federal Court are not that flexible in terms of access. For people from outside of Canada, having to operate within a legal system such as ours does pose problems. The right of review should therefore be automatic, and all the humanitarian considerations should also be broadened. Some have been, but that should be the general approach taken.

Mr. Gervais: You pointed out that there can be long delays between the beginning and the end of the process. There are probably ways of shortening some of those timeframes. All kinds of potential solutions could be considered, such as set deadlines, provisional roles or emergency roles, and even the number of people who could be asked to make these determinations. It would be possible to work within the appeals framework to provide for judicial review as a matter of right, at the same time incorporating it into a process that would be much shorter. That can be done. There are areas where it has been possible, and I think it could be accomplished here.

Ms Brosseau: Also, with respect to this bill, if we cast our minds back to 1998, when Ms Robillard, the then Minister, released her paper on proposed amendments to the Act - and here I would point out that the Act currently in place has been around for 25 years and that immigration issues have considerably evolved over that period - we may recall that one of the goals was to simplify the legislation and shorten timeframes. Will that occur as a result of taking rights away? That is the question, and I am not sure the answer will necessarily be yes.

Senator Beaudoin: Yes, but as you say, the right of appeal is fundamental in a democracy, because no one is perfect, and because our system requires that such a right exist. I am very pleased to hear that the Barreau supports us and I want to thank you for your comments.

[English]

Senator Di Nino: Mr. Gervais, you commented on the non-lawyer representation, if you wish, on some of these cases. We have also had other witnesses express some concerns regarding the appointment process to the IRB. Would you share your opinion on that issue as well?

Mr. Gervais: Non-lawyer representation of people before the board or people on the board?

Senator Di Nino: No, people before the board. You made commentary on that. Would you share with us your thoughts, as some other witnesses have, on the partisan appointment as a method of appointment to the board itself?

Mr. Gervais: My first comment was exactly on that point. That is one of questions that we have always looked at and always commented upon here as well as in Quebec. I specifically referred to a decision that was rendered by the Court of Appeal about a month ago in the Province of Quebec where the bar of Montreal contested the administrative tribunal. That is a major change in our administrative system in the Province of Quebec. They attacked the system on the same grounds that I brought up before us, namely, the question of the independence of the people who take decisions in matters of importance such as those of immigration. I was going through the different sections of law and looking at clause 153, where they indicate that people are there for a period of seven years. However, I was asking how they are renewed, how they are chosen, what are the grounds and what are the motives? It is also indicated that someone can be taken off the board with motivated decision but there seems to be no way of revising the decision. The person who will be removed has no way of going before some kind of board or some kind of administrative board to determine whether or not the grounds are founded.

My first comments were that we are not satisfied with the way that the law indicates how these people will be nominated.

My second comment was the fact that the law, as I see it at the moment, seems to evacuate much of the judicial process, bringing it to administrative process. It also evacuates people who have a basis in law. I referred to clause 162, where it is indicated that the board will hear questions of law and questions of fact, including questions of jurisdiction. These are important matters. There are a few members who come from the bar and have a legal background. However, there is no way in the law that we see that these important questions of will be addressed by someone who has a legal background.

In some laws you have boards where the people who comprise the board are from different professions and come from different backgrounds. However, on most of these boards, questions of law are deferred to a bench or to a commissioner who has a legal background. These are only examples that we can give but that was my second comment, namely, that I am not satisfied with the way it is composed.

As for the non-lawyer representation, if you were asking me a personal question, as a member of the bar I was always in favour of people being represented by lawyers. The Supreme Court said it itself: There is no one else from whom you can get guarantees as those a bar can give. I would be naive to believe that someone else cannot do a proper job. We have seen administrative boards before. The Supreme Court said it also in Mangat. I do not mind; I can accept that.

However, once we accept people who do not have the same kind of guarantees that we can give through belonging to a law society, why does the law not require from these people the same kind of guarantee? Why is there not some kind of requirement saying that someone who appears before the board and is not a member of a professional order or of a law society must file professional liability insurance? That is to say, there should be some kind of guarantee so that, even if I believe that this person has not the same background that I have with my law degree, at least there is a minimal part of guarantee that the people they are representing before the board will have some kind of guarantee.

Senator Di Nino: Thank you for clarifying that. I would like to switch gears a little and ask if either one of you would like to comment on other parts of this bill. We have concentrated, with some justification, on the refugee system. We have concentrated on the security aspect of this bill. After the events of September 11, that is understandable. The Immigration Act, however, is much more than just security and the refugee system. From the standpoint of Quebec, are there other concerns or other issues that this bill is addressing which would raise questions in your mind as to whether it satisfies Quebec's needs for the right kinds of immigrants, et cetera?

[Translation]

Ms Brosseau: There are a couple of minor things we did not mention that are of concern, but we have basically provided you with an overview of our thoughts on the major points addressed in the Bill.

For example, although the rules have been greatly changed and simplified, it is not clear whether clause 124 will apply to carriers. There are a number of points in the Bill that are cause for concern, but you would have to be more specific if you want me to give you a precise answer.

[English]

Senator Di Nino: I will if you wish. It may not be the purview of the bar, but we have not heard from many people from Quebec about, for example, the provisions in this bill dealing with the immigrant investor program. We have not heard from people from Quebec - at least not to a useful degree - as to whether this bill would allow Quebec to attract people with the skills that Quebec needs at this time. We focus so much on the refugee and security aspect of it, I wondered if you would care to make some comments on those parts or other parts of that nature.

[Translation]

Ms Brosseau: Quebec's particular circumstances are somewhat different. I understand that people have not really discussed that with you. You should know that a Quebec-Canada agreement dealing with immigration levels has been in place for several years.

We do have some reservations about the program, but given that the legislation gives precedence to certain immigrant classes, as well as investor immigrants, there is no real problem because it is actually the provincial policy that is subject to criticism. Several years ago - two, if I am not mistaken - Quebec changed its investor immigrant program - which, by the way, was extremely successful - by setting a quota for it. That is one of the criticisms we have made.

But as a general rule, the criticism we could make of Bill C-11 in terms of its treatment of immigrants and the different classes of immigrants - if we set aside the family reunification program, which is a federal responsibility, and refugee status - has to do with the imposition of quotas. That may not be the best way to proceed. If the quota has been met for a specific class of immigrants after six or eight months - and it's important to understand that the system operates on the basis of classes of immigrants, so people can always change their minds and decide to emigrate to a different country. So, a quota-based system is a problem. Bill C-11 sets quotas. Because the provincial program takes precedence and because that has been laid out in the legislation, people in Quebec did not really address that point to the same extent when they appeared before the House of Commons Committee.

[English]

The Deputy Chairman: Thank you, Ms Brosseau and Mr. Gervais for your excellent presentation. We appreciate your appearing on such short notice.

Our next witness, from the Province of Ontario, is Minister Cameron Jackson.

The Honourable Cameron Jackson, Minister of Citizenship with Responsibility for Seniors, Province of Ontario: Thank you. Honourable senators, I am joined today by Mr. Frank Ryder, Bureau Commander, Investigative Support Bureau, Ontario Provincial Police; Mr. Robert Montgomery, Assistant Deputy Minister, Citizenship, Province of Ontario; Ms Carolyn Chaplin, Executive Assistant, Office of the Minister, Citizenship, Province of Ontario; Mr. Scott Newark, Vice-chair, Special Counsel, Office of Victims of Crime, Province of Ontario, whom many of you may know as the former Executive Director of the Canadian Police Association. Mr. Newark has appeared before you and before members of the commons committee on matters pertaining to immigration enforcement.

Thank you for the opportunity to address this committee and present Ontario's views on this very important proposed legislation. Ontario is a province that welcomes immigrants. Last year we received 59 per cent of Canada's immigrants. By comparison, our share of the country's population is only 38 per cent. Over the last 10 years, Ontario has averaged over 100,000 new immigrants each year - more than one half of all immigrants to Canada. Ontario's population is the most ethnically diverse in the country, reflecting more than 250 nations.

Nowhere in Canada has immigration been a more defining characteristic than in Ontario. We support immigration and we are profoundly affected by it. Clearly, the federal immigration program has a significant impact on the social dynamic of our province and our public programs such as health care, education and social assistance. The selection of economic immigrants also affects Ontario's economic growth and continued prosperity.

Ontario has a huge stake in the effectiveness of the immigration program that will ultimately be based on Bill C-11. Although the bill proposes some positive changes, Ontario has a number of concerns about the proposed legislation and its pending regulations.

As framework legislation, Bill C-11 delegates broad authority to develop implementation rules in the regulations. It is the content of the regulations that will have the greatest impact on Ontario and other provinces and territories. Yet the details of the regulations have not been published; nor has a consultation process been established. So far, any consultation with the Government of Ontario has been somewhat piecemeal and sporadic.

Ontario's majority share of Canada's immigrants warrants commensurate participation in the development of federal immigration policies and programs. We seek wording in the act that commits the federal government to meaningful consultations with all the provinces.

Again, it is in the regulations that will flow from this act that we have the most impact. The Government of Ontario is particularly concerned about proposed direction in four areas: economic immigration; family sponsorship criteria and enforcement of sponsorship agreements; medical safeguards and excessive demands assessments; and refugee determination.

A transparent and effective admissions system for skilled immigrants is important to Ontario and Canada's economic growth. CIC has proposed a "human capital" model for selection of skilled workers in the economic class. Ontario agrees with this approach in principle, but has a number of concerns with the waiting and implementation of these criteria.

The models proposed by the CIC undervalue the importance of language ability. Studies based on the Longitudinal Immigration Data Base, IMDB, show that language proficiency is crucial to the success of immigrants in the Canadian and Ontario labour markets. Related to this is the lack of standardized language testing of skilled worker applicants. As a consequence, many skilled immigrants with supposed language skills arrive in Canada to discover their language abilities are not up to the standard required in their profession or trade. They end up suffering through long periods of unemployment or under-employment. Some never find work in their field at all.

Federal models emphasize the value of education and Ontario supports this as well. However, if academic achievement is not accompanied by language skills, successful employment is unlikely. Also, given that education is an important factor for labour market integration, a standardized, objective method of assessing educational credentials is vital. This is a highly specialized task that visa officers are not currently trained to do.

Finally, none of this will work without adequate resources to build the capacity of oversees offices to assess applications from economic immigrants. CIC has a considerable backlog of applications for the economic class. The success of the economic component of the immigration program depends on adequate federal investment in a reliable assessment system, training of overseas staff, and supporting infrastructure. Ontario wants a system that is driven by quality and not just quantity.

After immigrants arrive here they need a head start to find jobs and to integrate successfully. Ontario provides settlement services and language training, as does the federal government. Unfortunately, the federal mechanism for funding settlement services means that newcomers to Quebec are far better resourced than newcomers to the rest of Canada.This dual system discriminates against 85 per cent of new Canadians who come to our country. Federal spending on settlement programs must be equitable across the country and based on each province's share of new immigrants.

Ontario support's the bill's objective of reuniting families. Strong families are critical to the successful integration of our newcomers. However, we are also concerned about default of family sponsorship agreements. Family sponsorship criteria must be realistic. If family relationships break down and sponsored immigrants must rely on social assistance, the goals of family reunification are not achieved.

The legislation and proposed directions of the regulations will expand the family class. There are many implications of these changes for Ontario's social assistance, health, seniors' services and other programs. There are also implications for areas of provincial jurisdiction, such as adoption, age of majority and common-law relationships. These are areas in which many provinces have their own legislation. So far, there has not been adequate consultation on these matters.

Studies by Citizenship and Immigration Canada, CIC, shows that welfare dependency among sponsored immigrants increases with time spent in Canada. Yet CIC is shortening the length of the sponsorship period from 10 to three years. In Ontario's view, the sponsorship obligation should remain for 10 years, or until the sponsored immigrant becomes a Canadian citizen.

We also believe that income requirements for sponsorship do not reflect the true costs of meeting sponsorship commitments. CIC has a poor track record of enforcing sponsorship obligations and tracking down defaulters. Ontario is now being called upon to pay significant financial support for unanticipated and unintended expenses. These are generally long-term financial supports that in some cases begin upon arrival. The estimated cost to Ontario of failed family class sponsorship is up to $125 million, including the municipal share in social assistance costs in Ontario.

This information is not new to the federal government. My colleague, the Honourable John Baird, Minister of Community and Social Services, has written to the federal minister about these concerns, yet we have not seen any action.

The Government of Ontario, therefore, wants specific provisions that will: obligate federal responsibility for enforcing sponsorship agreements; establish a sponsorship registry to monitor whether sponsors are living up to their obligations; and where default has occurred, intervene with defaulters to encourage compliance.

Bill C-11 states that an applicant who might be expected to place an excessive demand on health and social services would be inadmissible to Canada. The criteria for "excessive demand" will be in the regulations. It is expected that the regulations will make a number of exemptions to this bar, including convention refugees from abroad and in Canada, members of the humanitarian class abroad and the protected class in Canada, along with spouses, common-law partners and dependent children.

In its rationale for these exemptions, the federal government states that the impact is expected to be relatively small. However, this statement is not supported by facts based on research. Ontario believes all these new exemptions could result in a considerable increase in the number of people who would become eligible for provincial health and social programs; as well, I might add, for long-term care or home care, for which the province receives not a penny of federal money.

Overseas medical screening of immigrants and refugee applicants must be accurate, not only to protect the Canadian public, but also to permit reliable assessment of long-term costs and appropriate treatment for the individual who is immigrating.

The federal government is entitled to make exemptions on humanitarian grounds. In doing so, it must also take responsibility for the financial impact on provincial health and social programs.

A substantial part of Bill C-11 is about Canada's refugee determination system. Ontario supports Canada's humanitarian tradition, yet that tradition need not come at the expense of prudence and good judgment. Our refugee determination system must be fair and well managed to ensure that those who truly need protection will get it and those who seek to abuse it are removed expeditiously from Canada.

The bill contains a number of changes that are intended to make the determination process more efficient and improve enforcement of the decisions of the Immigration and Refugee Board. On paper, some of these changes have merit. However, implementing them effectively is another matter. The lack of additional resources committed to this undertaking creates serious doubt about the success of the potential changes.

Ontario, along with British Columbia and Quebec, has publicly called on the federal government to substantially reduce the time it takes to make decisions and to remove individuals whose refugee claims have been rejected or who have committed crimes while in Canada and assume all costs for services provided to refugee claimants until the claimants are granted refugee status or are removed from Canada.

Any immigration system must, of necessity, include a process for enforcing the rules. Regrettably, Citizenship and Immigration Canada has a poor record of making that enforcement a priority - especially in cases where it is the criminal conduct that prompts the order of deportation. Further, even where such arrests occur, there is an equally poor record of following through to ensure deportation as our laws provide. Ontario has recently signalled our intention in this area and we call on Ottawa to join us in assigning the necessary resources to create a focussed approach to apprehension and removal of those persons who have broken the rules or have been refused permission to remain within our country.

In that sense, we are gravely concerned that Bill C-11 will eliminate the authority of the 50,000 sworn police officers of Canada to report inadmissibility for removal action and replace it instead with discretion vested only in federal immigration officials. This is a strange way to enhance enforcement, which we understood to be a major claim of the authors of this bill.

Ontario is also very concerned about the front-end screening process for the refugee claimants. The discretionary 72 hours proposed in Bill C-11 is not enough time to complete thorough security and criminal checks and is really no different from the current act.

Although Bill C-11 makes some attempts to streamline the refugee determination system, there is still considerable room for abuse of the system and opportunities for lengthy delays in the removal of individuals who are not deserving of Canada's protection.

In light of the September 11 tragedy, Canada should give more consideration to using the "safe third country" provision that is already in our legislation but has not been enacted. Further, it is unclear to us how Bill C-11 can proceed in light of the recent introduction of Bill C-36, the provisions of which obviously have relevance for the issues covered by Bill C-11. My officials and I will be pleased to provide specific examples of this during our discussion with you today.

In addition, the federal government has sole responsibility for the refugee determination and removal process, but does not assume most of the costs of services provided to refugee claimants. Ontario spends millions of dollars each year on social assistance and legal aid. There are considerable other costs related to health, housing, education and provincially funded settlement services. This is an important point. At the same time, refugee claimants are denied access to federally funded settlement services and language training. We cannot understand why this is happening.

To conclude, Ontario is proud to be the preferred destination for the majority of Canada's immigrants. We are proud that newcomers see this province as a place of opportunity and a place to establish new, productive lives. In turn, we expect newcomers to abide by the law and to contribute. We expect them to encourage their children to become good citizens and to participate actively in the life of our province and of our country.

Thank you for the opportunity to express these concerns. We would be pleased to respond to your questions.

The Deputy Chairman: When you talked about unanticipated and unintended expenses of $125 million, is that over and above all the other costs that you just outlined in the closing part of your statement?

Mr. Jackson: No, the $125 million is a figure that we believe are the additional costs. The unanticipated and unintended costs may be the ones that occur as a result of Bill C-11, so in fact that figure will rise substantially by virtue of the process of increasing numbers, but also by, in our opinion, reducing some of the security or enforcement components of the legislation. We see that number actually compounding.

The Deputy Chairman: Did you say that it included the municipal costs?

Mr. Jackson: As you know, social assistance is borne in portion by the municipal property, so it is on the property taxes in the Province of Ontario.

Senator Andreychuk: You said that the federal funding for the language training and other costs were cut. When was it cut, and was it as a result of a negotiation?

Mr. Jackson: No, I believe that it has never been eligible. If you are a refugee claimant, you are by definition ineligible for settlement dollars and language training dollars. As the number of refugee claimants grows and as the preferred destination for refugee claimants is Ontario, we are left to bear those additional costs. Therefore, it is not that the federal government cut settlement and language training funds. They have never been deemed eligible. The number is getting rather large.

Senator Cordy: Thank you for your comments this afternoon. I was interested in your comments on family reunification because the minister has certainly said that family reunification is important in the department. The adjustment to a new community is much better if family members are around you.

You talked specifically about the area of family breakdown. As you stated, this bill reduces the terms of family sponsorship from 10 years to three years.

We had a number of witnesses who appeared before us who think that three years is too long a period for family sponsorship. The people who gave us that advice were talking about cases of spousal abuse. The wife comes to this country sponsored by her husband, but is in an abusive situation. Then she is tied into staying in that situation for three years because her husband is her sponsor to be in Canada.

You are saying that three years is too short. Could you expand on that?

Mr. Jackson: First, we do not see a correlation to being domicile and having financial responsibility. Our country is filled with situations of abuse where it is in the best interests of the family to be separated, but the ongoing financial responsibility of the partner is required under our laws. I see those as two separate requirements.

We are concerned about issues around enforcement of the current sponsorship program to ensure that those costs are borne in accordance with the agreement that was signed.

Senator Cordy: I agree that there are many people who are not living together who are being financially supported by the other spouse, but if you are new to the country, you might be a little nervous about leaving the home. You might be concerned that your spouse might drop the support or the sponsorship.

Mr. Jackson: It is not my understanding that you are required to be domiciled with the offending partner. I must go back to that point.

Senator Cordy: I would agree that that may not technically be correct, but a woman in that situation would be afraid to leave the home for fear that her sponsorship would be dropped. We will have to agree to disagree on that situation.

You also talked about the need to remove serious criminals quickly from the country. You mentioned "safe third countries" as being one way to do that. Is there anything in Bill C-11 that would allow a serious criminal to be removed from the country more quickly?

Mr. Scott Newark, Vice-chair, Special Counsel, Office for Victims of Crime, Province of Ontario: Senator, I was particularly looking at that. My experience came from getting an insight into immigration enforcement following the murder of a Toronto police officer, Todd Bayliss. We had an insight that, exactly the opposite of what you're asking about had not taken place.

There were substantive improvements in relation to expedited deportation for those convicted of serious criminality. There was private member's bill by a Liberal MP that would have taken the two tracks together - the federal removal process and criminal trial process. On defined specific serious offences after opportunity for full submission, the court could have said that it has listened to the submissions, determined the sentence and ordered the deportation. That could be appealed to the Court of Appeal. That would have been an expedited process that would have accomplished something.

I do not see a whole lot of that in this bill. There are some real concerns that I have when I go through it. As I am sure you know, when you get to the sections that deal with the grounds of admissibility, each one - whether security, organized crime or serious criminality grounds - has a little subsection that says that the minister can make an exemption for someone.

Equally, the act says that the regulations can define someone out of the applicability of those sections. There is initial ministerial override discretion to remove people from that, as well.

I am concerned that I see some changes in some of the places to which the appeal process may go. I do not see very much frankly that will result in expedited deportation of people convicted of those most serious offences.

Senator Di Nino: Welcome, minister and your colleagues. It is good to see you again.

First, I think that you identified two issues that have given this committee great concern. One is that this is framework legislation that allows the government to conduct "government by bureaucracy instead of by laws," as someone put it. You do have cause for concern because we do not know what will be in the regulations.

Second, a recurring theme of all of the witnesses has been, "Where is the beef? There is no money in the system." The resources that the system needs to accomplish the objectives articulated with the previous immigration bill and this bill are not available. These are two of the most serious concerns. We have been grappling with that.

You commented on your concern with the 72-hour requirement for an immigration officer to reach a decision. The response has been that if there is a concern about criminality, that person would then be set aside and transferred over to the security people.

If I understand you correctly, you are concerned that because the time is so narrow, that the mistakes may be made on the other side. That is, people will be allowed in within the 72-hour period because we do not have enough time to make a decision without doing a proper analysis of the individual applying.

Mr. Jackson: The short answer is yes because there is not much difference in this bill under the current guidelines, which state 72 hours. We believe that necessary time should be undertaken to ensure that persons with lengthy criminal records or extremely violent pasts are not allowed to enter the country as quickly as they would in a system that allows people in by default if that information cannot be secured. We do not think that is appropriate.

My colleague from the OPP has specific statistics on the kinds of numbers of individuals we are talking about currently in the province who have engaged in criminal conduct. A limited amount of research would indicate how they were able to get into Canada as foreign nationals who decided to stay or to declare that they were refugees.

We are concerned that the necessary time should be taken. We would also like access to the technology that allows us to do a much safer job. It strikes me that we have more sophisticated high-tech equipment in casinos in Ontario that can screen people who are known to be engaged in inappropriate conduct, or people who are known addicts, so that they are escorted out. Why we do not have this level of technology at our airports and points of entry to assist us is a question that Canadians are now asking.

Our government has pledged additional resources to try to help in this process. The 72 hours represent an opportunity to have the door opened even further when we are trying to backfill with resources to gather individuals who have gained entry this way and then have engaged in criminal activity. The numbers in Ontario are rather significant.

Senator Di Nino: Could we ask the officer to give us some numbers?

Mr. Frank Ryder, Bureau Commander, Investigative Support Bureau, Ontario Provincial Police: The Premier of Ontario has made an announcement that this government wants to have a system put in place that is similar to the one we have in Ontario called Provincial Rope Squad. This system provides a focussed approach to identify where unlawfully at-large personnel are located in Ontario. We currently have 241 unlawfully at-large individuals who are being sought by our Provincial Rope Squad. Of those 241 individuals, 52 also have immigration warrants. That shows how the two can sometimes be linked.

Following September 11 and following the premier's announcement, we are looking at ways to deal with this issue. Prior to September 11, in terms of those 241, there was a way to determine who was the most important in respect of public safety issues that we could focus our energies on so we could try to apprehend those individuals. Post September 11, we put two systems in place to extricate the 52 that also have outstanding immigration warrants. We also have a different kind of formula in place to basically elevate their priority so that we focus our efforts on identifying where those individuals are located. Currently missing from the enforcement of immigration issues is a concentrated effort to find these people.

Senator Cordy: Just a point of clarification on the subject of 72 hours. It is my understanding that the investigation is not completed within 72 hours, but that it is started within 72 hours. Therefore, at the same time, the case can begin before the IRB. In fact, if new evidence indicating that the person was not desirable in Canada showed up after the 72 hours while the case is before the IRB, that person would be deported at that time.

Mr. Newark: That is true and, theoretically, we have the capacity to detain at the border, in custody, to ask those same questions and to attempt to determine identification. This bill also permits entry into Canada while the investigation will be ongoing. In response to the previous questioner, much of what I do is involved in criminal justice - in fact, I will return to present before a Senate committee next week on Bill C-7. The true refrain that is constantly heard is that when we do things right at the beginning, it tends to work out so much better than if we wait until after the fact, when everything goes wrong. In that case, you have to spend much more time.

The same is true here, so that the better we do the job of screening the entry in at the outset, the much greater the benefit in the long run. I encourage you to go through the provisions of division 3, where I believe this is all laid out. The concern is that someone whom you do not want in the country, but you do not know is in the country, can be out on bail and can disappear. The fact is that we have 27,000 apparent warrants outstanding. It is an indication that we may have some problems in respect of tracking people down. That is where the difficulties begin to compound.

I would suggest, as a principle, that it is a good idea to focus at that front end before the entire system is engaged and all the other things that we certainly intend to keep in a rule of law society about how we make those subsequent decisions. That front-end decision-making is critically important, whether it is by using existing power such as, for example, in section 44 of the regulations, to fingerprint individuals who are seeking admission or readmission into Canada. We generally do not do this. Or, as the minister explained, to use enhanced technology and to ensure that it is used not only with the Americans but also with many other nations around the world. In that way, we know which people are not wanted in their countries and to which country they were deported. Focus on the front end is important for what will follow and the amount of money it will cost.

Senator Cordy: The point is that there seems to be a misconception that all these decisions are made and the final decision is made within 72 hours.

Mr. Newark: The legislation is clear. The intention is that people will be released on bail or into the country after the expiration of that 72 hours period. We are making the point that we must ensure that we are able to do the job necessary in those 72 hours, if that is the time limit that will be set.

Senator Di Nino: May I have clarification, minister, on a comment you made. Both of the officials from the department and the minister made some firm comments about the consultation process that went on for the last two or three years in the preparation of this bill, which was Bill C-31 which died on the Order Paper during the previous parliament. You used the words "not adequate" or "spotty at best." You are suggesting that you have a different view of the consultation process than the view of the departmental officials and the minister. Is that correct?

Mr. Jackson: Yes, those words did stylize the concerns in Ontario. My ministry officials have been talking with officials from CIC, but at the political policy level, we have not really had a meaningful discussion. I wrote to my colleague, the Minister of Intergovernmental Affairs, and I wrote to Ms Elinor Caplan, Minister of Citizenship and Immigration, on September 28. I can leave a copy of that letter with the committee if you would like. In this letter, we lay out a series of concerns that required a more fulsome discussion to address some of the outstanding concerns about how well we are accommodating new Canadians in this country. That is a joint, shared responsibility of the federal and provincial governments.

In the letter I stated that Ontario is interested in establishing over the next few months a more flexible arrangement with the federal government, formalized in a Memorandum of Understanding that will ensure regular bilateral meetings between senior, Canada and Ontario staff.

We believe that a process of this nature should occur, given that 60 per cent of all new Canadians come to Ontario. In many respects, when Canada is set out at the United Nations as a model country, they are, in effect in a microscopic way, saying that Ontario is the jurisdiction of choice for this great experience. As Canadians we know that it is essentially an Ontario-based experience. So, the elements of tolerance and understanding, language compatibility and new settlement support are vitally important to the success of this public policy commitment.

Thus, we need to have those channels completely open so that we can work together, whether it is about the death of Mr. Todd Bayliss, Police Officer, or whether it is the failure of a physician from Eastern Europe, who came here wanting to be a doctor and found out that he would need three to four years of language training to do that.

Senator Di Nino: I have some questions on the economic side. I alluded to the lack of resources from this government - particularly since September 11 - although there has been some movement towards putting some more money in the system.

The open border that exists between the Province of Ontario and the United States of America is, I understand, of huge importance to the economy of Ontario. I understand that unless we take the need to scrutinize the entry points to Canada more seriously than at least the Americans think we have, that border may not stay as open as it has been. That would have a major impact on the economy of Ontario. Can you comment on that?

Mr. Jackson: First, you summarized it very well. About 60 per cent of all of our economic activity occurs with the State of New York and the Great Lake states. Prior to September 11, I participated in an economic summit with Governor Pataki and our premier.

Our challenge is that so many jobs in Ontario are dependent on the free flow of goods across that border. The Americans will be responding in more specific ways about the free flow of goods and services and people.

There are also huge implications for tourism in the frustration that people might encounter at the border. There is a very strong, compelling argument for the economic health of our province and our country, since our growth numbers are supporting rather extensively so much of the federal infrastructure, without going into the detail of that argument.

However, there are other concerns. For example, we are concerned that we lack creativity in our federal thinking and our policy development. Human Resources Canada has a larger budget to assist Canadians with income support, income stability and employment opportunities than we have to run our entire province for all of our people. That one ministry has a larger budget.

It strikes us as odd that we do not have the resources to help our economic agenda as a nation, but when we need skilled workers from wherever we can find them, we do not have the resources to help get them here quickly. We are finding businesses are actually going abroad and trying to do that work.

We have a skills shortage because our economy is strong. We want it to continue to be strong. We see a paradox in public policy in that we are not using even some of Human Resources Canada's dollars to assess these people who are going to be Canadians very quickly. We have a skills shortage.

We need a dual tracking system for people whose company has already done the pre-screening of credentials, where someone has flown to London, England to interview those die-casters or whatever, and then get them here. I have not memorized the number, but I understand the backlog is pretty extensive on economic immigration.

We cannot even point to a specific class of immigrant whom we are processing in a fashion that has shown improvement in the last few years. Clearly, for Ontario's purposes, we take pride in bringing in those immigrants who help our economy. We take very seriously the notion that people come to this country as foreign nationals who then break our laws such as in the murdering our citizens, and we lack the capacity to have them deported quickly for the ongoing safety of Ontarians.

Those two areas of concern are paramount in the Province of Ontario.

Senator Roche: First, might the letter of September 28 that you just quoted from you and your colleague, the Minister of Intergovernmental Affairs, to Minister Caplan, be tabled and circulated to the committee as soon as possible?

Mr. Jackson: Yes.

Senator Roche: I would like to read it tonight.

Minister, I was struck by your comment that, as I understood you, you do not think it is such a great idea to proceed with Bill C-11 in light of the Bill C-36 legislation now before us. You would probably find much company in that view.

However, we are facing a house order in the Senate that this bill will be voted on at third reading on Wednesday, October 31. Thus, we must proceed, even though some are not terribly happy about moving this quickly.

That being the case, I am struck by the fact that Ontario is such a major recipient of immigrants, at 60 per cent. I am at a loss to understand why there was not proper consultation with the Government of Ontario. It is so important to the successful assimilation of immigrants into Ontario and into Canada, and it is so important to hear the Government of Ontario's views. I speak as an Albertan: so important is Ontario to this subject.

Faced with the exigency that this bill will be voted on - and perhaps I will find the answer in your letter - is there anything we can do in an amendment that would ease the concern of the Government of Ontario at this time?

Mr. Jackson: There are several things. First, Senator Roche, thank you for your comments. I think Minister Manley has brought much to this discussion and I want to publicly acknowledge that. He is working very hard and effectively. He is working in consultation with our government. I believe that there may be some opportunities under his leadership to raise the very question you are raising. I will set that question aside.

As one who is faced with these political decisions at a provincial level, I know that our federal counterparts always have the opportunity to say that we can proceed to increase the number of immigrants to Canada - which is their plan - in the absence of this legislation being passed in late October. Therefore, it could be subject to further consultation, to further public input or any number of options. That is available.

Our concern is that we need to examine not just what the cost implications are. The real costs are the failure to provide the services, and there are gaps in service. I particularly underscored the refugee one. There is a major deficiency in public policy if a program denies refugees access to language and settlement services, and yet we have those programs for persons who are here under sponsorship. People are eligible also if they are economic immigrants, and they are comforted in the knowledge that they have secured a job in Canada. The very class that is having the greatest difficulty is not provided these services. That should be reviewed. For whatever reason, these issues are now coming under closer scrutiny. The learned members of this committee also have the opportunity to give additional recommendations with your report. It would be Ontario's view that it is better to do it right and look at the implications of bringing the two pieces of legislation together to complete a proper analysis before a final bill is secured in our federal house.

We could offer some follow-up material, if you so chose, on the issues regarding security. We put those in the form of a question because we do not have the answers to some of these questions.

Senator Roche: I would certainly welcome that information.

Mr. Newark: Regarding the original question about the context of Bill C-36, some of the things that pertain to this bill obviously are relevant to it. For example, if there is a list of terrorist organizations kept, it might be wise to reference that as a group that cannot sponsor someone to come into the country. Whatever those decisions are, you will need to cross-reference them to the bill itself. It makes sense to reference these and other offences in the legislation. For example, if someone were a participant, supporter or a member of one of the listed organizations, surely that would logically be grounds for inadmissibility in the security sections of the bill.

We have a large number of enforcement issues that are relevant because of the nature of the Bill C-36. We would be happy to supply them to you. That may be of some assistance.

You may ask for the production of regulations on which so much of this bill appears to be dependent. You may want to review section 94 of the current bill, which lists all the things that the minister is obliged to report. It looks more to me like the good news list as opposed to including the potentially bad news list. Items such as the number of warrants issued, the number of exclusions from the application of the inadmissibility were issued and all the things that pertain to enforcement information. That, frankly, would give the legislative branch the information to do its job as opposed to the executive branch holding on to the information.

Those are things that would concretely improve overall both the legislation and the means by which it interacts with Bill C-36, in whatever form it takes.

Senator Roche: Thank you. That is very helpful. The question of resources, Minister, has been widely discussed in this committee. I think the observations that the committee is thinking of making in connection with the return of the bill to the chamber, may well be included.

I have had a chance to glance at the letter of September 28, 2001. It deals largely with consultation. You will find a reflection of some of these thoughts in at least one third reading speech.

I did not follow you with precision when you opened up the discussion of your concern that Bill C-11 would remove authority for the enforcement process. Could you or your officials point me to one or more of the relevant clauses that represent your concern?

Mr. Jackson: The current act refers to "police officers;" the new legislation states an "officer."

Mr. Newark: I refer to section 27 of the current Immigration Act and clause 44 of the proposed bill. These deal with inadmissibility and what happens when law enforcement has information that someone is inadmissible to the country. This actually resulted from a particular case of an individual that came to the attention of the RCMP about 18 months ago. There were Interpol arrest warrants for him. People wondered how he had been here so long.

There were some issues around that. Based on my days with the Canadian Police Association, I went to look at these sections. I found that in the Immigration Act, peace officers, sworn police officers, and officers, federal immigration officers, had a positive statutory duty to report, if they had information that someone was inadmissible, to the deputy minister for further action in relation to potential deportation.

I was surprised to see that Bill C-11 now refers to "an officer" rather than a "peace officers" or "police officer."

Senator Roche: Who is the officer?

Mr. Newark: I looked in the definition section for "officer," and it is not there. Clause 6 notes that an officer is whoever is appointed by the federal Minister of Immigration. By the way, the previous duty "shall report," is now discretionary.

With respect, I would suggest that in regard to resources, you potentially have taken 50,000 sworn police officers away from the positive duty of starting the process of engaging removal on inadmissible people in this country, which I find hard to fathom as a good idea when we are talking about enhancing enforcement.

Senator Roche: Is it your view that clause 44 should read a "peace officer."

Mr. Newark: Yes, sir.

Senator Roche: Minister, does the Government of Ontario have a policy on the question of the Canada-U.S. border and the need to have easy access for all the economic concerns that are apparent? The question of how to maintain easy access has begun to loom before us, particularly with respect to keeping it safe.

Does the Government of Ontario have a policy on what is called the North American perimeter - a perimeter around North America? Could you enlighten us on the views of your government on how the Canadian government and the United States government could be assured that there is sufficient control on the border that does not result in these backups? Also, would you comment on the position that promoting the idea of a North American perimeter would make Canada and the U.S. more closely allied in our treatment of immigrants?

If that question is not precisely focussed enough for you, I will try it again. What does the Ontario government say about a North American perimeter?

Mr. Jackson: On September 24, 2001, the premier made a strong statement about the need for a North American perimeter. He did so after he had had discussions with both the American and Canadian ambassadors and discussions with Governor Pataki.

The events of September 11 have clearly in the minds of Canadians indicated that we consider security of both sides of the border a critical issue. Our efforts should not necessarily be harmonized. People are saying that a greater level of security is warranted at this time. Many reports in the media over the last few weeks, as investigations of who was involved in the September 11 events continue, have pointed to foreign nationals being illegally in both our countries. From a continental point of view, people are genuinely supportive of having systems that enforce one other.

I reluctantly give you a terrible example. I come from Burlington, Ontario, where the DeVilliers family is from. Theirs is a terribly tragic story. Jonathan Yeo, who murdered Nina DeVilliers, was caught crossing the border into Buffalo with a loaded gun in his car. The American officials had sufficient information to know who he was. They turned him away from entering the United States. Our immigration officials, who were telephoned with the warning that he was coming back, waved him through.

As someone who carries the burden of public responsibility at a provincial level, I have difficulty sleeping at night knowing that is the kind of system we have to protect our families. I am sorry to be so dramatic, but I come from a community where we have lost too many people this way.

My community is very much aware that we have a different standard and should be cooperating more with the federal jurisdiction. Our government's position is very clear. We support a North American perimeter, as do several other premiers.

Senator Roche: What does a North American perimeter really mean? Is Bill C-11 sufficiently strong to give you the assurance that the control points will be adequate without recourse to something called a "North American perimeter" that no one understands and many people are deeply concerned about with respect to Canadians values?

Mr. Jackson: No, the bill does not do that.

Senator Roche: Bill C-11 is not sufficient?

Mr. Jackson: Bill C-11 will not do that. In my view as a legislator, security legislation that is unclear and cumbersome, as this is, tends to play into the hands of bad people and the people who defend them in our courts.

Mr. Newark: With regard to the Yeo case, I recently attended a violent crime investigators' conference where we saw a dramatization of that incident. The customs officials did not just wave him through, they hid in the booth because he was armed. As you know, our officers are not armed. For their own security, they actually hid in the booth when the vehicle went past.

I agree with the minister with regard to whether Bill C-11 will be adequate to deal with the issues raised. Prior to the events of September 11, it was not a tremendous improvement on what existed before. If anything, September 11 raised the stakes for us in appreciating how precious the liberties we had previously taken for granted are, including what they mean in terms of economic commerce.

The challenge will be how we deal with that at a border to maintain the free flow of goods and people while putting into place different security measures. I do not think it needs to involve compromising sovereignty. It is time to start exercising our sovereignty at our borders.

We were talking earlier about digital imaging technology and using a database to share information. That is the kind of thing that should be in this bill. Someone asked earlier about security concerns. It should be mandatory to use the law we have and take fingerprints.

The bill needs to target the real concerns. It is not surprising that it does not because the bill was drafted long before September 11. The world has changed, and the legislation needs to as well.

Mr. Ryder: Probably the biggest challenge for the OPP following September 11 was how we had to assist at the border crossings. A tremendous amount of resources from the OPP and our municipal partners were allocated to assist immigration and customs at the borders. That is not normally our job. It became apparent how under-resourced they are.

Senator Roche: Was the Government of Ontario invited to testify before the House of Commons committee studying Bill C-11?

Mr. Jackson: I do not believe so. I will check to be sure, but I do not believe we were. I have been the Minister of Citizenship since February, and I do not recall being asked.

Senator Roche: Madam Chair, is that not a remarkable statement? Ontario, which is pivotal to immigration, did not give its view of Bill C-11 before the House of Commons passed it.

The Deputy Chairman: As a proud Ontarian, I agree with that.

[Translation]

Senator Robichaud: The witnesses have said that they asked to appear before our Committee, which agreed to hear them. If the witnesses had asked to appear before the House of Commons Committee, I have no doubt that they would also have been welcome there. While I cannot really confirm this, I would not want people to think that the witnesses were not invited to appear or that we prevented them from giving testimony.

[English]

The Deputy Chairman: Perhaps you are, but we can check.

Senator Romkey: Mr. Jackson, I have heard the term "North American perimeter" a lot. How would you define "North American perimeter"? "Perimeter" suggests encompassing the area. Yet, in addition to protecting the shores, we want to enhance or modify in some way the longest undefended border in the world.

What do you mean by a North American perimeter?

Mr. Jackson: I do not know what is meant by a "North American perimeter." I can give you a better response to what a North American security perimeter is. Minister Manley is currently in discussion with the government in the United States. Ontario is contributing through former RCMP Commissioner Norm Inkster and retired Major General Lewis McKenzie who have been assigned to look at security issues.

We have pledged to give our full support to the federal government in all discussions. We are vitally interested in securing the safety of our province and will work with any level of government that will allow us to do so. The premier has said that he is willing to discuss the concept, but it is a security perimeter rather than a geographical or North American perimeter.

This is currently being discussed at a high policy level between Minister Manley, our government and other provinces. I believe that Alberta, British Columbia and New Brunswick have already indicated their support for exploring the discussions around how to secure the safety of our citizens.

For the record, we did receive a letter from the federal government early in September requesting our feedback on Bill C-11 with a deadline of September 20. Two weeks was not sufficient time for Ontario to present all of its concerns to the federal government. We have on record a series of meetings and dialogues with the federal government but - unfortunately for us - we have not been able to elicit a response to our concerns. So, that is the situation in which we find ourselves.

We have requested a move to a bilateral process, where we can have Memorandums of Understanding so that new Canadians, under whatever terms and conditions they come into our country under the legislation, do not fall between the cracks.

The Deputy Chairman: By the date of that letter, the bill was in the Senate and not in the House of Commons. That would have answered the committee issue.

I thank all of the witnesses for appearing before us today.

Our next witness is Mr. Serge Charette, National President, Customs Excise Union.

Mr. Serge Charette, National President, Customs Excise Union: Thank you. We greatly appreciate this opportunity and we hope you will find our contribution of benefit as you deliberate on Bill C-11.

Annually, 110 million travellers, many of whom are immigrants and refugees, enter our border areas. They are cleared by customs through the travellers' stream. Many try to enter illegally, and some of those are successful. That is not because of the work of our members, but for reasons that I will explain.

Canada has 147 land border crossings, 13 international airports and 15 seaports. Processing at these points is set up in a two-tier system. The first tier is the primary inspection line, PIL. All who seek entry into Canada must come through the PIL. We maintain that the PIL must only be staffed by customs officers. They, and only they, should release individuals or refer those who are questionable or who lack proper documentation, to "secondary" - the second tier. There, travellers are asked more thorough questions and they or their personal belongings may be subject to physical examination. Officers from immigration, the RCMP, and/or CSIS may also staff secondary, but only at specific locations or under specific circumstances.

Between the 175 entry and exit points, jurisdiction falls to the RCMP. Our testimony today will not, nor is it meant to, address the RCMP's jurisdiction.

It is extremely important for us to explain, in respect of Bill C-11, that customs officers on the PIL act as Canada's front line immigration officers. This is the case when we refer individuals to immigration officers in secondary. It is even more the case when there are no immigration officers at secondary, such as at remote ports.

I represent 3,500 customs officers across Canada. There are 2,600 officers who work in the travellers' stream. They want me to tell you that border security is an illusion at their workplace. It is a myth; and it does not really exist.

Customs officers at Canadian border points have expressed frustration with their current lack of proper computer equipment, the antiquated state of some equipment, their lack of training, chronic under-staffing and other problems identified in the Auditor General's April 2000 Report. Long before the terrible events of September 11, Auditor General Denis Desautels said that, with more than 110 million travellers each year transiting through the country's border points, the risks to Canada's safety and security were high. In respect of customs officers, Mr. Desautels wrote:

Their main role now is to ... protect Canadians against illegal activities such as smuggling of contraband or the unlawful entry of inadmissible people. ... Our audit raises some concerns about how well these risks are being managed.

Those are concerns that our members have had for many years.

As recently as a few weeks ago, the Canadian Police Association even warned against perpetuating a false sense of security. It called for staff increases at the border and a more serious approach to enforcement. In fact, I believe the previous witness made that statement himself. We loudly echo those sentiments here today.

It is a sad reality that Canada does not have enough customs officers to do the job our members are called upon to perform. At a minimum, Canada needs at least 1,200 more customs officers - an investment of $60 million - the breakdown and analysis of which is provided to you as an appendix.

The fact is, officers not only fail to receive enough training, but they also do not receive the right training. In his April 2000 report, Auditor General Desautels said of long-term staff that "60 per cent had not received immigration training." Sixty per cent, Madam Chair. I reiterate that customs officers are the acting immigration officers at our country's borders.

Sadly, many customs officers do not have computers, and many have computer hardware and software that are inadequate. This means they do not have access to good and timely enforcement information. On October 15, Mr. Myron Thompson, Alliance MP from Wild Rose, stood in the House of Commons and said that the customs officers in Victoria presently do not have a single computer. They are operating out of a 35-year-old trailer and are still using lists on 30-year-old clipboards. Clip boards! More than 1 million travellers pass through Victoria annually.

Senators, 45 per cent of all land border crossings are electronically isolated. This means they do not have direct access to either customs or other databases. What is the impact? Enforcement efficiency depends on the ability of officers to recall information that appears on one paper list after another. For example, isolated offices receive twice a week several pages of licence plate numbers that customs officers must be on the look-out for.

At the ports equipped with licence plate readers and a network hook-up, only 70 per cent of the machine reads are accurate. It is a situation that is made far worse during the winter when plates are obscured by snow.

The Integrated Customs Enforcement System, ICES, contains data on persons and vehicles with a record of customs, immigration and Criminal Code violations. It also contains look-outs generated by customs, immigration, RCMP and CSIS. However, these look-outs are not updated on a continuous basis. They often contain information that is three to four months old.

Access to the Canadian Police Information Centre, CPIC, does not exist anywhere in Canada on the PIL. Travellers must be referred to secondary before a criminal background check can be carried out or authenticity of identity can be established.

Customs officers do not have the right tools to do their job. Every law enforcement officer along the Canada-U.S. border, including the RCMP, U.S. Customs, U.S. Immigration and Naturalization Service, and the U.S. Border Patrol, is equipped with a firearm. Yet, more and more of our members are expected to intercept felons, murderers, terrorists, rapists, child abductors, thieves, drunk drivers, et cetera. While customs officers could not do most of this prior to the passage of Bill C-18 in May 1998, our government now expects them to do so with a baton and pepper spray - a far cry from a firearm.

Madam Chair, would you or any member of the committee ask an RCMP officer patrolling our border not to carry a firearm? Would any of you do the job of a customs officer under similar conditions?

Moreover, the low number of flexible response teams and dog handlers limits the use of weapons and contraband detection tools and detailed vehicular searches. Dog handlers, for example, are rarely called out due to costs. Similarly, large ports can only have one or two dog handlers. Again, that is due to costs.

During the summer months, one-half of our 2,600 members working in the travellers' stream are replaced by students, most of whom are in their late teens or early twenties. They receive two weeks of training; long-term staff receive about 12 weeks of training. The Auditor General further stated, "because students lack experience but make critical decisions at PIL, we are concerned that reduced training time could pose an unnecessary risk for Customs."

Customs officers apply more than 70 different pieces of legislation and regulations for other agencies and departments. Do you not wonder, like us, what training students might receive to deal with immigration matters, when they also have everything else to learn in that short time? With 60 per cent of long-term officers not trained in immigration and with one-half of the remaining 40 per cent of officers replaced by students, only 20 per cent - at best - are trained to deal with immigration matters during the months of July and August. That is one in five.

There are 2,600 customs officers in the travellers' stream, and we will provide you with a breakdown of the figures on a chart. I will not bother to repeat the same information.

It is no wonder immigration officers question the quality of referrals from the PIL. It is no wonder that an EKOS study commissioned by immigration, reported in 1991 that each week an average of 12,500 referrals from PIL to secondary were missed during a four-week study - the month of August.

On any day, customs will process more than 40,000 commercial transactions and 300,000 travellers, many of whom are immigrants and refugees. Management tells us that volumes are expected to increase and we have been told that the plan is to keep resources static.

How will this be possible? The Minister of Revenue and management of customs say that technology is the answer. The plan is to automate in order to expedite the border, all at a time when Americans acknowledge the value of human interaction and intelligence over increased reliance on technology. Technology is great when called upon to check a tax return. It is no match for any customs officer when it comes to detecting a bead of perspiration, failure to maintain eye contact or many other signs of deceit. We agree that technology and automation are great tools, but they cannot be used to replace people when detecting deceit is the goal. The answer is having more qualified officers trained in the use of the latest technological tools.

The American government is responding to the September 11 events by investing almost $1 billion Canadian, or $609 million U.S., along our border, half of which will go to triple the number of enforcement officers they have from 1,773 to 5,319, an increase of 3,546. The rest of the money will be used for new equipment like night vision goggles and motion detection sensors.

Our government believes that $15 million Canadian, or $9.5 million U.S., will do the same thing. One hundred and thirty customs officers and a bit of equipment will not increase security at our border. Such a response is an understatement beyond comprehension.

To be unequivocally clear, customs needs more staff. We need 1,200 officers. We need the right staff - not students. We need more and better training, in particular in immigration. We need the right equipment to access current information, including computers and good databases. Like other officers of the peace we need the right tools - firearms. We need adequate facilities - holding cells. That is how we will improve customs, not by replacing people with technology.

When an American senator holds up an orange rubber traffic cone at an U.S. congressional committee hearing and says that this is the U.S. answer to border security with Canada in some locations, and we know that we do the same thing on our side, we know things have to change. The time has never been more right. An orange cone is not security. You cannot have a secure border unless your entire border is secure.

In conclusion, we support going back to a proposal made some years ago that would have seen customs, immigration and other enforcement groups regrouped in a single agency or department. Customs has a dual and opposing mandate - security versus facilitation. The current imbalance in favour of facilitation needs to be reviewed in an environment that is oriented towards enforcement. That does not mean facilitation must be ignored; it simply means that it needs to be done without compromising security.

Of course, proper interdiction would require a greater number of customs officers or things would slow down. The choice is clear. Canadians want and deserve greater security. Business wants and needs more facilitation. Both groups will be satisfied with more officers. The time has come for change. We must invest wisely.

The Deputy Chairman: Thank you very much, Mr. Charette, for that very good presentation.

Senator Morin: Would the answer be to decrease the number of entry points and make them more efficient?

Do I understand correctly that you do not think that the figures given by Minister Cauchon recently for increases in resources are sufficient?

Mr. Charette: We do not think they are sufficient. We need about 10 times as much as has been provided for. We have provided you with a breakdown in an appendix that shows why we believe that.

Senator Morin: Are you referring to the recent increases announced by Mr. Cauchon?

Mr. Charette: Yes. He announced an increase of $9 million, which I am told translates roughly into 130 new customs officers. However, in a briefing last week, I was told that most of those resources would go to airports, that a few would go to sea ports, and perhaps two or three to postal facilities. Therefore, this will have absolutely no impact on the border per se.

The resources are primarily for airports and are basically to massage passenger manifests that will be provided to Revenue Canada. They are not provided at this time, however with the passage of other pending legislation, they will be provided. The vast majority of those 130 people will be hired for the purpose of analyzing that information.

Senator Morin: There has been some talk of having one set of border personnel at the border with a facility shared by the U.S. and Canada. What are your views on that?

Mr. Charette: We already have some shared facilities and that works very well. They are small facilities where one officer was working alone. Having the officer from the U.S. and the officer from Canada working together has provided our officers with an increased sense of security - mainly because the American customs inspectors are armed while ours are not. We like that idea, but that only works in small locations. Once a certain size is reached, it is no longer feasible because one facility would have to handle the traffic on both the Canadian and the American side. We would need a much larger facility to house hundreds of people at one time.

The Deputy Chairman: Did you answer Senator Morin's first question about having fewer border crossings? Is that economically feasible?

Mr. Charette: That was done during the 1990s. At that time, quite a few border locations were closed down. At that time, people contacted their MPs to complain that they had to travel further to get to a border crossing. It made things difficult for travellers.

In Ontario, we could not do that because of the Great Lakes and the fact that we must cross the border via bridges. That would require massive numbers of people at one location. Fewer locations may be better as long as it does not inconvenience the Canadian public. We have been told that the number has been decreased as much as it could be without inconveniencing the travelling public.

The Deputy Chairman: It would seem to fly in the face of the free movement of goods and services.

Senator Cook: Mr. Charette, I am trying to bring this to its simplest form so that I may understand it better. If I arrive on a flight from outside the country and I am in a line-up at the airport, is the first person I meet the customs officer?

Mr. Charette: Yes, that is correct.

Senator Morin: It will be in the PIL.

Senator Cook: Under whose jurisdiction is the form that I fill out?

Mr. Charette: The form that you filled out?

Senator Cook: The form that asks if you are a Canadian citizen; have you visited a farm; and will you be visiting a farm? Does that form belong to Customs or to Immigration?

Mr. Charette: It belongs to several areas of jurisdiction. The questions on the form are asked on behalf of a number of other departments and agencies. If you have visited a farm, we ask that on behalf of Agriculture Canada. If you bought anything, we want to know that ourselves.

Senator Cook: You would expedite the necessary information to those who need it.

Mr. Charette: Yes. If we detect anything that is questionable, then we would refer the person to secondary for immigration purposes, for example.

Senator Cook: You say you are not cross-trained with immigration officials. Do you have a copy of their protocols? At what point would I trigger a response to which you would send me to an immigration officer?

Mr. Charette: It varies from individual to individual according to the responses to questions we ask. For example, with regard to your country of origin, we will if you are a Canadian. If you say no to that question, we will proceed further and ask where you are from. Then, we will look at your passport. Refugees, who usually arrive at border points without a passport or identification papers because they were lost or stolen, are automatically referred to immigration. We also have lookouts. If we receive information that a certain individual needs to be sent to immigration, we will react to that as well.

Senator Cook: Would you advocate a multidisciplinary team of people at that point of entry? Could you roll the job descriptions into one, so that there would be one person who would have the professionalism to move people through the system, rather than have a customs officer, an immigration officer and a police officer? Would that help the process?

Mr. Charette: That is the way it is set up now, basically. Customs inspectors do the preliminary work for 70 different pieces of legislation. We do it for immigration, the Atomic Energy Board of Canada, Agriculture Canada, Fisheries and Oceans and for many other departments. If we find meat, for example, then we will refer you to Agriculture Canada; if you are sick, we will refer you to Immigration or, if you are a Canadian resident, to Health Canada.

It depends on what we see and what is there before the customs inspector. There can be many possible reactions. You only have about 30 seconds to make the final decision.

Senator Cook: That is what I am trying to equate. That being said, why would you not be cross-trained or be familiar with the responsibilities of others? Is there any way that we could add a different protocol at our borders?

Mr. Charette: In theory, all of our customs inspectors need that training, and they should have it. The problem during the 1990s became a question of staffing. It reached the point where the staffing matched so precisely the need for people to be on the line working that we could no longer afford to send them for training. That is why we say, in our appendix, that we suffer from chronic under-staffing and that we need an additional 15 per cent, just to ensure that there are replacements available so that people can take training to acquire the skills and knowledge that you talk about in respect of other agencies and departments.

Senator Cook: At the minimum, would you not need the protocol or the job description of the immigration officer?

Mr. Charette: Not completely. We perform only a portion of their duties as the first line of contact. Through our questioning, we determine that this particular individual needs to be referred to Immigration, and then we refer them. However, we need the training that will allow our people to more easily and quickly detect whether an individual needs to be referred to Immigration. That is what we are lacking right now. The EKOS report pointed that out in the early 1990s when we missed 50,000 during a one-month period.

The Deputy Chairman: Senators, I ask that you please keep your questions short. Thank you.

Senator Roche: Mr. Charette, you made it clear that the border control system is not working very well. Have you come to make a plea - legitimately so - for more resources, which has been a subject of great concern in this committee? Do you have any feeling about Bill C-11 itself with respect to its ability to respond to your concern? Do you like Bill C-11, or do you want anything changed in the bill?

Mr. Charette: The content of Bill C-11 is not a major concern for our members because we will apply the legislation the way it is provided to us and in the way that we are trained to apply it. However, we see a great need for our members, in particular in light of the modifications proposed by this bill, to be properly trained so that they can apply the legislation as required. There is a particular need for the students who only get two weeks of training. We are concerned that that is the case.

We have a service MOU with all other agencies and departments whom we represent. The MOUs are worded in such a way that indicates that only customs inspectors or customs officers will be performing those responsibilities. Nowhere is it stated in any of those MOUs that students with two weeks of training may replace customs officers. We are concerned about that.

Senator Roche: You mentioned the American senator who held up the orange pylon. I suppose we all saw that on television. Does that really happen? At these remote border control points, when 10:00 p.m. comes and everyone goes home, do they put an orange pylon in the middle of the road? What is to stop anyone from driving around the cone and entering either country? What is to stop that?

Mr. Charette: Very little, in fact. On the American side, at some of those locations, they have sensors and they do some monitoring. However, on the Canadian side, basically, there is nothing that would prevent that from happening. The RCMP may have patrols, and they may intercept people. As we all know, they, too, have been curtailed significantly.

Other than the RCMP, who may be present, there is really nothing to stop someone from entering that way.

Senator Roche: Is that why you are asking for a 24-hour patrol?

Mr. Charette: Yes.

Senator Roche: With regard to guns, you are advocating that Canadian officials in the PIL be equipped with guns. That would be a hornets' nest. Have there been any instances when the lack of a gun in the possession of an officer was detrimental to Canadian interests? Did someone escape? Where is the evidence that guns are necessary?

Mr. Charette: Like the previous presenters, I will give you the example of Nina DeVille, who was shot by someone who was turned away at the American border and re-entered Canada with a weapon.

Customs inspectors are not armed. Obviously, the security of officers is a prime consideration. If an inspector feels that his or her security will be threatened in any way, shape or form, the standing instruction is to allow the people in and then try to get the RCMP, the local police or the provincial police to intercept them somewhere down the road. Obviously, in that particular case, that proved to be a major failure.

We do not know how many of these individuals would resist or would cause any kind of a reaction. What we know is that we are peace officers and we want to do our job. The only way that we can do our job is not by turning a blind eye and telling people, "Okay, go down the road," and as soon as they go you call the police. That just does not work. Either we enforce the law or we do not. Obviously, at this point, we are not enforcing it.

Senator Roche: Surely, the extra training required of officers in the proper handling of guns and ammunition, et cetera, would present a tremendous complication to a system that already needs more resources in the form of more people to do the job rather than equipping them with guns.

Mr. Charette: Senator, we seize weapons by the thousands each year at the border. All of our officers are trained in gun handling. We seize weapons and ammunition. We seize some weapons that are loaded. We had an accidental discharge just a couple of weeks ago. A student was trying to take the bullets out of a pistol. It accidentally discharged. Obviously, a student should not have been asked to do that. We were concerned about that.

Senator Di Nino: Mr. Charette, I have a couple of quick questions. Since September 11, the minister has stated - and I stand to be corrected - that you are now in the highest state of alert. I would like you to tell us what that means. I would also like you to tell us what training has gone on or is going on at the present time vis-à-vis the use or the handling of anthrax and/or other substances that might be even worse?

Mr. Charette: With regard to anthrax, I believe a document was issued this week. Our health and safety committee discussed this over the weekend. I do not have that information. However, one of our national VPs is in attendance today. He might be able to shed some light on that because he was provided with copies of the documentation and his committee had an opportunity to analyze it. Unfortunately, I have not been able to do that at this point.

Senator Di Nino: I am quite surprised. Are you telling me there has been no real training by all of those who are involved in securing our borders on the handling of materials that may be deadly? Is this what you are saying? I do not want to put words in your mouth, but that is an awful thing if it is what you are saying.

Mr. Charette: Basically, there is some training at our college in Rigaud. It is very limited and was not specific to anthrax or to the current set of circumstances.

Senator Di Nino: What does it mean for the minister to say that you are in the highest state of alert? Is it just a statement?

Mr. Charette: The highest state of alert means we will interrogate pretty much 100 per cent of the individuals showing up at the border during that period of time. The number has declined since then. It also means we would be looking at the content of all the vehicles that came to the border. It also means that we had to have the RCMP, the OPP or local police forces assisting us at the border so that we would not have to let the people pass through only to be arrested later on. They would be able to arrest them on the spot. That is one of our concerns.

We would like to be able to do that ourselves. We would like to have detention areas and have the ability to do that. However, if they have a weapon, obviously, with pepper spray and batons we will not be in a position to do that. We will just allow them to go through as per our instructions and call the police.

Senator Di Nino: That is not very reassuring, Mr. Charette. I do not mean this as a slam or a criticism to you against you or your people. I think you are victims here like everyone else.

Senator Rompkey: I have a brief question. In testimony earlier, you referred to a passenger manifest. In incoming flights, do you get a passenger manifest? Do you have any advance notice at airports of who is on the aircraft? I know you have a profile in the computer about certain people. Do you know in advance if someone coming in might fit that profile?

Mr. Charette: We do not at this particular point in time. With Bill S-23, which is also before the House and which will be up for third reading shortly, that will be provided. There will be a legal basis.

Senator Rompkey: Then you will receive a passenger manifest, will you?

Mr. Charette: Yes. All airlines will have to supply us with one. That is what I was saying before about the more than two-thirds of the 130 individuals who are being added will be used to go through those manifests and identify people who potentially should or should not be allowed into the country.

Airlines are in the business of moving people and not verifying the identity of the people they move. There is no guarantee that the information being keyed into their systems is accurate. For example, I noticed today that my surname, which is Charette is spelled with two Rs. I spell it with one. If it happens to be spelled that way on the passenger manifest, I will get through.

[Translation]

Senator Robichaud: Firearms scare me. Despite that, you provide invaluable services to Canada. You say that you need more resources. And yet you do a remarkable job, which is exactly what we would expect you to do.

A shoot-out at a border point, where there are lots of people trying to cross, could quickly set off a general panic and result in a loss of life or injuries. When in doubt, would it not be preferable to advise police, so that the suspects could be arrested elsewhere?

Mr. Charette: You raise a valid concern. We believe that if all customs officers were armed, no one would dare use firearms or try to intimidate us, knowing there would be an immediate reaction on our part.

That often happens at Customs. According to our instructions, if some guy 6 feet tall comes through the border, we have to let him through. These people are not always armed. They come to a border point, and because they are familiar with the system and know how it works, they may try to intimidate someone who seems frail or who is alone by saying: "I'm going through. There's no way you're going to stop me!" Whether the individual is armed or otherwise, we have to let him through.

Senator Robichaud: But if the customs officer has a firearm, what is he going to do? Order him to stop?

Senator Morin: And if the individual does not stop, despite your having ordered him to do so, are you going to shoot?

Mr. Charette: No.

Senator Morin: Then what's the point of having a firearm?

Mr. Charette: The point is that the other guy will realize that we can take additional measures. We could fire a shot in the leg, for example, as a warning. That would allow us to immobilize the individual until police arrive. It doesn't mean we're going to start to shooting at everybody.

According to a study released by Revenue Canada in the mid-1990s, 78 per cent of Canadians have the impression that Canadian customs officers are armed. When they cross the border into the United States, they see that American customs officers are armed.

Senator Robichaud: How often would access to a firearm have made your work easier?

Mr. Charette: I can't really answer that. However, I do know that situations like that occur fairly often at small border points.

Senator Robichaud: And would most of your members agree to carry firearms?

Mr. Charette: Yes.

Senator Robichaud: That isn't a hypothetical answer?

Mr. Charette: No. A study in 1991 showed that 85 per cent of our members were in favour of carrying firearms, although they wanted it to be voluntary. That made things difficult for us. So, we did another survey that clearly showed that the majority of our members wanted us to continue asking to be allowed to carry firearms. I regularly receive e-mails from members to that effect.

Senator Robichaud: Would that become a condition of employment?

Mr. Charette: We would have no choice.

Senator Robichaud: I encourage you to seek solutions other than carrying firearms.

[English]

The Chairman: Mr. Charette, I would like to thank you on behalf of the committee for your excellent brief and the many questions you took. I remember being on a committee three or four years ago when the issue of firearms was raised.

The committee continued in camera.