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Proceedings of the Standing Senate Committee on
National Finance

Issue 14 - Evidence - June 10, 2008

OTTAWA, Tuesday, June 10, 2008

The Standing Senate Committee on National Finance met this day at 9:33 a.m. to give consideration to the subject matter of Bill C-50, an Act to implement certain provisions of the budget tabled in Parliament on February 26, 2008, and to enact provisions to preserve the fiscal plan set out in that budget.

Senator Joseph A. Day (Chair) in the chair.


The Chair: Good morning and welcome to this meeting of the Standing Senate Committee on National Finance.


We have been studying for the last two weeks the subject matter of Bill C-50, with a view to having a clear understanding of what is in the bill prior to receiving it so we can participate in a thorough debate in the chamber. We understand, honourable colleagues, that last evening the House of Commons passed Bill C-50 so I anticipate that it will be received in the chamber and go probably into second reading I would anticipate this afternoon in the Senate chamber.

This continued hearing of witnesses to help us have a clear understanding of this rather extensive omnibus piece of legislation comprised of 10 parts, will deal with two parts this morning. I would like to thank our witnesses. One area we would like to look into deals with the amount allocated for transfer to the provinces with the view to hiring more police. We would like to get a bit of an understanding from the government representatives, from Public Safety Canada and Finance Canada, as to how that is anticipated to work. We also have representatives from the Canadian Bar Association, who are here to help us understand more clearly Part 6 on immigration.

I would now like to introduce our witnesses. From the Canadian Bar Association, Betsy Kane, Executive Member, National Citizenship and Immigration Law Section, and Kerri Froc, Legal Policy Analyst; from Public Safety Canada, Mr. Mark Potter, Director General, Policing Policy, and Krista Campbell, Senior Chief, Federal-Provincial Relations Division, Federal-Provincial Relations and Social Policy Branch.

I never cease to be amazed at the titles you develop for those various positions, but I am sure it was not you who developed that title and you are just pleased to be where you are.

I understand Ms. Froc may have some introductory remarks on behalf of the Canadian Bar Association and perhaps Ms. Kane, from National Citizenship and Immigration Law Section.

While they are making their introductory remarks, perhaps Ms. Campbell or Mr. Potter could think of a few introductory words to explain that section of Bill C-50 that deals with how it is intended to be used. That would be helpful to us and then we will go into question and answer session.

Kerri Froc, Legal Policy Analyst, Canadian Bar Association: The Canadian Bar Association is very pleased to appear before this committee today on Bill C-50, specifically to address Part VI, amending the Immigration and Refugee Protection Act.

The Canadian Bar Association is a national association with about 38,000 members across the country. The primary objectives of the organization are improvement in the law and improvement in the administration of justice, and it is in this light that we make our comments to you today. You have our written submission, which is the one we provided to the House Finance Committee. As that committee recommended no amendments to the bill, our concerns remain the same.

I will ask Ms. Kane who, as you stated, is a member of the executive of the National Citizenship and Immigration Law Section, to address the substantive issues in the bill.

The Chair: The letter you are referring to is the letter dated April 30, 2008, addressed to Mr. Rob Merrifield, M.P. That has been received and circulated in both official languages to the members of the committee.

Betsy Kane, Executive Member, National Citizenship and Immigration Law Section, Canadian Bar Association: Mr. Chair, members of the committee, the amendments to the Immigration and Refugee Protection Act that we are here to discuss today have been introduced by the government to stop the backlog of immigration applications from growing in future. However, these amendments do not address the problem of the current 925,000 applicants in the queue worldwide. These new changes will only affect applications filed after February 27, 2008; thus the 925,000 applicants and their families in the queue will still be there and will still have to be processed on the basis of the existing rules. This is one of the key points that needs to be stressed.

Clearly, the backlog is a serious problem that hampers Canada's competitiveness globally in attracting the best quality candidates. However, the issuance of ministerial instructions under the new changes as proposed is not required to address the backlog. With the excellent initiatives that this government has made on the temporary foreign worker side of the program, the government is offering skilled workers who are in demand in Canada fast-tracking under current immigration programs. This priority is offered through the current federal skilled worker program, the provincial nominee programs and the Quebec program.

Additionally, the new Canada experience class, set to be implemented later this year, will also serve to select and prioritize skilled immigrants currently working and studying in Canada. Further the minister currently possesses the authority to instruct visa officers on the priority to be accorded to certain applicants. This is currently happening for spouses and dependent children of Canadian citizens, and permanent residents, provincially nominated applicants and federal skilled workers with employment in Canada or who have jobs waiting for them on their arrival.

These changes are designed primarily to give the Minister of Citizenship and Immigration a tool to dispose of future applications without having a legal obligation to render a decision or to account to an applicant who otherwise would meet the regulatory criteria. This is despite their enormous investment of time, money and expectation that such an application would be considered and decided upon.

The government's stated intent is to modernize the system. It assures us that the process of instituting ministerial instructions will be public and Charter-compliant. However, ministerial instructions would be instituted without the ordinary process of stakeholder consultation and pre-publication required of regulations.

How can such instructions be modern when it returns us to a time when a visa was a privilege given on a discretionary basis?

Some of the key concerns of the CBA are the proposed instructions as they pertain to humanitarian and compassionate applications under section 25 for persons whose applications are pending outside of Canada. These will no longer have to be considered at all.

The proposed provisions provide that any applications or requests which are not processed may be retained, returned or otherwise disposed of in accordance with the instructions of the minister. This effectively results in the elimination of the obligation to process applications for all categories of immigrants and compromises their ability to seek judicial oversight of these decisions; the erosion of transparency; and the risk of arbitrariness by the issuance of ministerial instructions, as opposed to legislation and regulation, to set processing priorities for the Government of Canada.

The government does not require the proposed changes in Bill C-50 to set priorities or set out SWAT teams to deal with the backlog. This is currently being done. Thus, the means are already at the government's disposal to accomplish its goals in a manner that preserves transparency and the rule of law. These are my submissions.

The Chair: Thank you very much. Of the programs you say are already in place, one is the federal skills program?

Ms. Kane: It is the Federal Skilled Worker Program, and the process under the Federal Skilled Worker Program begins where the applicant has a job already in Canada waiting for them. Let us say they are currently working in Russia but they know a Canadian company has already selected them for employment. Aalternatively, many of these federal skilled worker applicants are currently working here in Canada on temporary work permits just waiting for their applications to be processed at a visa office outside of Canada.

The Chair: The other one you mentioned was the provincial nominee program.

Ms. Kane: As you know, almost all of the provinces have provincially nominated programs where the province selects applicants, and currently provincially nominated applicants are red flagged — literally their files have red stickers on them. They are expedited in six to nine months following a receipt by a visa office outside of Canada.

The Chair: Was there another program?

Ms. Kane: Yes. For spouses and dependent children of Canadian citizens and permanent residents, the government is committed to processing these applicants in six months' time, and they are doing a very good job of it in most cases.

The Chair: Thank you. There may well be other questions, but I wanted to clarify the record on that.

Krista Campbell, Senior Chief, Federal-Provincial Relations Division, Federal-Provincial Relations and Social Policy Branch, Department of Finance Canada: Good morning. Part VIII of the budget bill deals with payments to provinces and territories. It establishes three trust funds, and I understand we are here today to talk about one in particular, the Police Officers Recruitment Fund. It provides $400 million over five years to provinces and territories in support of a Speech-from-the-Throne commitment to participate in assisting provinces and territories in putting an additional 2,500 police officers on the streets.

The Government of Canada issued operating principles with respect to the Police Officers Recruitment Fund. These are broad statements of federal intent with respect to how the funding is to be used. Provinces and territories are recognized as having responsibility for designing and delivering police officer services programs and for putting the officers on the streets. That is recognized in the operating principles so provinces have flexibility with respect to how they intend to allocate the funding and where they intend to make the investments. Provinces and territories are also encouraged to report directly to their citizens on how they go about making those investments.

In Budget 2008, the government asked that provinces and territories interested in participating make a public statement in line with these operating principles outlining how they intended to make their investments in order to become eligible to receive funding under the trusts. All 13 jurisdictions have made those public statements. The only outstanding process at this point is to determine Parliament's approval of the bill. Then the funding can flow to all 13 jurisdictions on a proportional basis, which means that the funding is allocated evenly over the five years in respect of population shares.

The Chair: Is that distribution over five years on an equal distribution per year?

Ms. Campbell: Yes.

The Chair: Thank you.

Mr. Potter, did you have anything to add?

Mark Potter, Director General, Policing Policy, Public Safety Canada: No, I think that covers it.

Senator Murray: I will not be long. I wanted to have a word with the witness from the Canadian Bar Association.

First of all, you acknowledge in your brief that the

. . .current backlog of visa applications and the need for labour, in particular strategic occupations, are urgent issues that rightly require the government's attention and action.

Have you turned your mind to the kind of action the government should take on these matters if not through this bill?

Ms. Kane: The government is currently taking progressive action in the design of the Temporary Foreign Worker Program. The government has taken proactive initiatives to help Canadian companies with the requirement for skilled labour across this country with temporary foreign worker initiatives and with the design of some provincially nominated programs that serve to expedite —

Senator Murray: That is sufficient in your view?

Ms. Kane: I do not say that is sufficient. There is always room for improvement and expansion, but in terms of meeting Canadian labour market needs, those initiatives are helpful and are being utilized. The issue here is whether Bill C-50 will complement that, and the CBA's position is that it will not.

Senator Murray: We heard that same point of view from witnesses the week before last when we began our pre-study of this bill. The government witnesses and others disputed the contention that they already have the tools they need to achieve the objectives that they say they want to achieve with this bill.

I do not know where that leaves us. Obviously, what they want is more discretion, and this of course is the point of your brief, that you object to legislative entrenchment of ministerial authority to issue unreviewable instructions without prior public debate or opportunity for stakeholder input.

My question is: What do you think we should do about this? The nuclear bomb is we could defeat the bill or perhaps find a way to sever that Part of the bill.

You speak rather favourably of what happened under the IRPA, Immigration and Refugee Protection Act, where Parliament required many of the regulations under IRPA to be tabled in the House of Commons and the Senate and then referred to the appropriate committee. Further, proposed regulatory changes are subject to pre-publication in the Canada Gazette which provides stakeholders with notification and opportunity for input.

Reading that, I would have thought there was a possibility in those comments of drafting an amendment that would make the ministerial discretion more reviewable.

Ms. Kane: There is currently ministerial discretion in the legislation as we have it now. In terms of Part VI, what the CBA would like to see is the issuance and rules pertaining to ministerial instruction form part of a regulation and not something where there is no ability for stakeholder consultations, pre-publications and where the checks and balances of ministerial discretion are reviewable in a court of law. Currently the discretion is there and there is no oversight.

Senator Murray: Do I understand you correctly, then, that we should sever this Part, defeat it?

Ms. Kane: Yes.

Senator Murray: The government already has sufficient regulatory authority to achieve the objectives it says it wants to achieve and to do so in a way that would be more accountable?

Ms. Kane: Absolutely.

Senator Murray: That is it, Mr. Chair. The government witnesses are not briefed to discuss this issue I take it?

The Chair: No, they are not.

Senator Ringuette: In regards to the policing issue, I think Senator Eggleton had brought a particular concern to this committee in regards to how the flow of this money will work. I understand that it will be a per capita for the provinces and territories. In regards to the agreements with the provinces, how will it flow to municipalities? Many municipalities are the protection or policing authority. How will this occur?

Mr. Potter: Thank you for your question. This funding is provided to the provinces and territories, and the jurisdiction that receives the funding has then the discretion and the flexibility to meet their unique priorities and policing needs, including at the municipal level, should they see fit. The funds will flow to the provinces and territories, and presumably they will engage in dialogue within their own jurisdiction on how best to flow these funds.

Senator Ringuette: Could you provide this committee with the distribution of the funds? I gather that the trust has been put together or is in the process of being put together.

Ms. Campbell: All the administrative arrangements for the trust are in place. The accounting rules required that everything be established prior to March 31, prior to the end of the fiscal year. That was done. We can provide the committee with the official allocation schedule.

Senator Ringuette: Who will be monitoring? Who will be accountable?

Mr. Potter: As noted in the budget and in correspondence from Public Safety Minister Day to his provincial territorial counterparts, the provincial and territorial jurisdictions will be accountable to their residents for these expenditures and the results achieved with them.

Senator Ringuette: Is there no monitoring from the federal government and no accountability for the money in this federal trust fund?

Mr. Potter: The federal government will monitor the use of these funds but, given the flexibility of the fund arrangement, it has limited authority over the funding once it is disbursed.

Ms. Campbell: One of the elements of setting up a trust fund is that the financing flows to provinces and territories. They are recognized as having primary responsibility. They make public commitments, and then they are responsible for turning around and meeting those commitments in the eyes of their public. They are audited by their auditors general. They are held to account by their publics, who will elect them on the basis of how they actually flowed the funds with respect to the commitments they made. The federal auditor is able to look at the trust fund and see that it was allocated according to what the government commitment was, but the federal auditor or other body does not then subsequently re-audit the provinces or territories.

Senator Ringuette: It strikes me as bizarre. For many years, the past government was criticized heavily for setting up trust funds, but we see a proliferation of them. Why? What is the purpose of setting up a trust fund? Why can it not be managed without a trust within Minister Day's department? There then would be accountability federally for 400 million federal dollars.

Ms. Campbell: A trust fund is a particular type of financial vehicle, and it has advantages and limitations, like any other type of financial mechanism that the government could choose to use. If the government wants to have an ongoing policy role with greater conditionality and greater control, that speaks to setting up some kind of ongoing program.

A trust fund has the advantage of allowing the government to use year-end surplus funds to provide for a specific, short-term targeted purpose for, for example, beneficiaries like provinces and territories. An ongoing commitment cannot use year-end surplus funds in the same manner. There are advantages and disadvantages or limitations to any financial vehicle that the government would choose to use. Trust funds have the advantage of allowing this sort of flexibility to support a program, and there is accountability in the sense that the federal government is fully accountable for how it spent that money. It went to the provinces and territories in the manner outlined in the budget. Provinces and territories are then fully accountable to their citizens, the same citizens, through their auditors and parliamentary legislative assemblies for the money that they spent in accordance with their public statements.

It is a two-tiered process of overall accountability, I agree, but that is the limitation of a trust mechanism versus something like an ongoing program. An ongoing program has a limitation in the sense that it is not flexible enough to use year-end funds.

Senator Stratton: My question is addressed to Ms. Kane of the Canadian Bar Association. I am sorry I was late for the meeting and did not hear the entire presentation. However, I did hear you say that the government now has authority to solve the problems that it currently faces.

As you know, we have a waiting list of over 900,000 people trying to get into the country, and it is expected to grow to 1.5 million in fairly short order unless something happens. Could you point out to this committee where the government has authority to solve this problem and why it has not solved the problem in the past? I am talking about both governments here. Why has it not been able to solve the problem, and why is it taking the route it is currently taking?

Ms. Kane: I cannot speak to the issue as to why the government has not solved the problem. Resources are always an important element.

The minister, with the use of instructions, is hoping to reduce overlap. If someone has filed multiple applications, they are seeking to have the instructions to enable one application from that applicant to be processed as opposed to multiple applications, which is an important goal. However, at the same time, the breadth of these instructions goes far wider than simply addressing the backlog. The backlog and the ability of the growing backlog to be there and to grow can be dealt with by utilizing SWAT teams, which is something both governments have done and continue to do, by fully resourcing the offices abroad, and perhaps by increasing the points required for immigrants or increasing the quality of the connection to Canada so that a more limited pool of applicants would qualify in future.

Senator Stratton: I find it surprising that you would think that governments would not have already done that, but the list continues to grow.

The Canadian Federation of Independent Business constantly does surveys. I used to be a member years ago and, as a small business, you were constantly being asked to put forward responses on various aspects. One survey that struck me as quite interesting is that the long-term job vacancy in various provinces is quite extraordinary. Ontario is 44,000, as an example. In my province of Manitoba, it is 14,000, long term. New Brunswick, as I pointed out to Senator Ringuette, has around 11,000 to 14,000, long-term jobs they cannot fill. That list of over 900,000 people is log-jammed because they cannot find the skills that are available overseas to fill these long-term vacant jobs. The fundamental issue of this whole part of the bill is exactly that. We are desperately short of skilled workers in Manitoba. We cannot find them in Canada, yet we cannot get them quickly enough with the process that currently exists in the Department of Citizenship and Immigration because there are over 900,000 applicants on the waiting list, and that number is growing to 1.5 million. How do you explain that?

Ms. Kane: Manitoba in particular, as well as many of the other provinces, is able to address their labour market needs through the provincial nomination programs. Employers in those regions can go to their provincial ministry and nominate applicants. If those applicants are in the current queue of the 925,000, if they can prove that there is an employer waiting for their skills in Canada, their application gets bumped up in the queue.

There is currently a mechanism in place in which people in the backlog, if they can get a job offer or if they can come to Canada on the temporary foreign worker program, they can move to the front of the queue and utilize their skills in Canada.

Part of the problem with the backlog is that many of the applicants do not have job offers or prospects in Canada or they do not have a job waiting for them. The government is seeking to utilize the temporary foreign worker program to actually help Canadian businesses address their labour market needs. Many of those needs are not necessarily from the current backlog, but perhaps in the future we can somehow match up the skills of the applicants in the backlog to the demands in the current labour market.

Those skills are already there, as I said, with Federal Skilled Worker applications, the new Canadian Experience Class and the provincial nomination. The tools are there already. Bill C-50 does not appear to in any way augment the existing tools in the government's tool kit.

The Chair: We have a supplementary on the issue.

Senator Ringuette: What you have just said in regards to ability is true, except that last week, when the officials from the department appeared to explain what they will be doing over the next little while, it seemed to me the problem was technical because the current backlog of applicants have not been identified as per their skill set in the database. Therefore, the matching you are talking about cannot occur. They indicated it was to be their priority to contact the current applicants in the backlog to ensure that the skill sets have been identified in their application and in the database.

That is an IT issue. I agree with you in that it has nothing to do with this ministerial instruction issue.

Ms. Kane: Every applicant must identify their occupation and the province of destination.

Senator Ringuette: However, they have not put that information into the system.

Ms. Kane: The ministerial instructions are not required to make that identification at all. The information is in the file.

Senator Stratton: It is easy to say that, but when you look at the issue of over 900,000 people on the waiting list, growing to 1.5 million, when you look at the submission of actual survey data from the Canadian Federation of Independent Business talking about long-term job vacancies, not a month or two but long term, you cannot tell me that what is there works. I have not heard anyone tell me that the system works. If the system worked, we would not have over 900,000 people on the waiting list. We would not have 14,000 long-term job vacancies in Manitoba. No one has answered that.

Ms. Kane: The backlog is there. It is a problem. It needs to be addressed, absolutely. There have always been different levels of the backlog, and this is certainly very high.

Senator Stratton: It is growing as well.

Ms. Kane: Yes, but if Canadian business needs skills, they have the tools and avenues under the current regime to bring them in temporarily, or if they are not coming in on a temporary basis, to identify them and have those applicants fast-tracked for permanent residence.

Senator Stratton: We agree to disagree. If that were true, it would be happening in Manitoba and we would not have 14,000 long-term job vacancies.

The Chair: That is the great thing about our democracy; we can agree to disagree.


Senator Chaput: My question is for Ms. Campbell and is about the police officers recruitment fund, the trust fund that has been set up and that will be administered by a third party. A while ago, in answering Senator Ringuette, you said that one reason for selecting this type of fund is that it is very flexible, if I understood correctly, in the sense that it is not a permanent program but rather an initiative with a beginning and an end.

Here is my question: How can we be sure that the provinces will spend that money on the recruitment of police officers? Is there something at all to give us the assurance that the provinces are really going to hire police officers with that money and not use it for something else? Will they have to report to the federal government? Will the money be provided yearly? Will it be automatic or will it depend on what the provinces will have provided as reports on their expenditures?


Ms. Campbell: The answer will be somewhat repetitive in the sense that the provinces and territories have all made their commitments to spend the funds with respect to or in keeping with the broad outline of the operating principles.

Provinces and territories are not required to report to the federal government. Provinces and territories are encouraged to report to their citizens, to their public. Provinces and territories will have to tell their parliaments or legislative assemblies how they have spent the money. Their auditors will audit the funds.

They do make public statements on a regular basis, but there is no government-to-government reporting requirement. This is quite consistent with how the federation has developed over the last decade or two, and it is in keeping with the terms of the Social Union Framework Agreement and the move towards a more public accountability model where elected responsible governments are responsible to their public to do what they said they would. There are press releases that provinces have issued stating what they will do, and they will be held to account through their public.

Federal accountability is with respect to raising the money, making a commitment and allocating it appropriately as outlined in the budget, the budget bill and the terms of the trust indenture.


Senator Chaput: That is what I had understood the first time but I wanted to make sure. In other words, no agreement has been signed between the federal and provincial governments?

Ms. Campbell: No, there are no signed agreements.


The Chair: As a point of clarification, we have been dealing in respect to the Police Officers Recruitment Fund, clause 136 at page 122 of the bill as passed in the House of Commons. Subclause 2 of clause 136 states that the amount that may be provided to a province or territory under this clause is to be determined in accordance with the terms of the trust indenture establishing the trust.

As I understand it, Ms. Campbell or Mr. Potter, you indicated that that trust indenture has been signed and is in place?

Ms. Campbell: That is correct.

The Chair: Is that with an independent arm's length —

Ms. Campbell: Financial institution.

The Chair: Of the $400 million over five years, is there an administrative fee that is paid to the trustee in this instance?

Ms. Campbell: The Department of Finance has a competitive bid process that it runs through for the trust funds. That was done in the winter. A trustee is selected. The fees for the trustee are paid by the Department of Finance. They are paid from the government and not from this $400 million.

The Chair: That was my question. That is helpful.

The act provides clearly in subsection 2, "in accordance with the terms of the trust indenture." Presumably that trust indenture could be made available to us?

Ms. Campbell: We can have it sent over.

The Chair: Thank you. That would help us understand more clearly how this is supposed to work.

If a municipality hires a new police person with funds from this, that cost will continue after five years. What will happen then, or do you anticipate that they will be hiring these 2,500 new frontline police officers for only five years and then they will be out of work?

Mr. Potter: This funding is provided as a significant federal investment to help provinces and territories meet their unique policing needs. It is providing $400 million over five years.

The Chair: I understand. Are you agreeing with me that the municipalities will have to find another way to pay the costs of those police after that time or cease their employment?

Mr. Potter: One advantage of this financial mechanism is that it allows the provinces and territories, depending upon their financial and auditing rules, to use the funds for a period beyond the five years.

The Chair: Can they use it for administrative purposes or to increase the salary of existing police officers, or are there restrictions on that?

Mr. Potter: The purpose of the fund is to hire additional police officers. That is the intent of the funding.

The Chair: It is for that purpose only?

Mr. Potter: Yes.

The Chair: Presumably that will be all outlined in the trust indenture you are providing to us, or is that outlined in the government's stated principles that are a non-binding, non-signed agreement between the federal government and the provinces?

Ms. Campbell: The federal intent for and how the money is to be used is contained in the operating principles, which are the non-binding statement of federal intent. The trust indenture is a financial contract between the Government of Canada and the financial institution. It is the paperwork on how to set up a trust account.

The Chair: The ability to put last year's extra money into a trust that the federal government has no control over makes it a trust and not a program. The federal government must divest itself of any control of that money after the trust is created?

Ms. Campbell: That is correct. The funding has to be irrevocable. All conditions must be met by March 31 in order to use year-end funds and account for the funding against 2007-08. It would not necessarily automatically convert it into a program under a grants and contribution scheme, for example, but it would be judged by the Auditor General of Canada to be outside of the rules for use of booking funds against 2007-08.

The Chair: Thank you. That gives more of an understanding of that.

Senator Ringuette: At the outset you mentioned that there are three trust funds in Part 8. One is for policing. What are the other two for?

Ms. Campbell: There is also $500 million over two years for public transit investments. It was created under the same model as the police officer recruitment fund in the sense that the commitment was made in Budget 2008. Provinces and territories were asked to publicly opt in by making a statement indicating how they intended to use the funds. All 13 jurisdictions made those statements prior to March 31. The funding will be allocated over those two years on a per capita basis.

The third trust fund is $240 million for Saskatchewan, to be spread over five years, and it is for a carbon capture and storage demonstration project there.

Senator Ringuette: Was there a press release on that too?

Ms. Campbell: There were discussions with Saskatchewan. There is a press release with respect to what they intend to do with the funding, how the demonstration project would flow, and a commitment by Saskatchewan to share the knowledge gained more broadly.

Senator Ringuette: These three trusts were set up in the budget of March. A few weeks prior to the budget, a trust of $1 billion was set up for communities. These four trusts combined amount to about over $2 billion over the next few years, and they were all set up based on press releases. There are no federal-provincial agreements; it is press releases.

As a taxpayer, it disturbs me to see that the government has a policy of giving away billions of dollars based on press releases. There are no more meetings or agreements. I know that you cannot answer on policy issues, but this new way of doing things is disturbing, because there is no accountability in this. There is no legal recourse for resolutions of quarrels that may arise. There is no reporting mechanism.

Is there a request mechanism? You say it will be on a per capita basis and for five years. What is the request mechanism in this trust for the provinces and territories?

Ms. Campbell: I am not sure I understand the question. Are you asking about requests from the provinces to access the funds?

Senator Ringuette: Yes.

Ms. Campbell: The administrative arrangements are done with the financial institution and the provincial governments. The provincial governments are kept informed of the progress of the bill. Royal Assent would be the trigger for payment. The money would then be deposited into the provincial trust accounts. Once that deposit takes place, provinces are able to access the funds through the trustee. They are owners of that trust account and they manage the funds themselves.

I am not sure that I understood your question.

Senator Ringuette: I am not sure that I understood your answer. I was under the impression that it was one trust fund, but it seems that you are now saying that there are different trusts for the different provinces and territories.

Ms. Campbell: There are separate accounts for each province and territory. It is just an accounting method for the financial institution. The funds are kept separate for each beneficiary, but that is a minor administrative arrangement.

Senator Ringuette: How will the requests flow, and who will evaluate the requests?

Ms. Campbell: Provinces will be able to access the funds as soon as they are deposited. Provinces will then have to account for the money through their auditors and legislative assemblies. They will be audited on having received this funding, on having allocated it to various priorities, and on how effectively it is used.

Senator Ringuette: Audited on what; a press release?

Ms. Campbell: They will be judged against those public statements.

Senator Ringuette: The disbursement and use of money is based on the policy and the framework around it for auditing purposes. There is no framework; there is no federal-provincial agreement; there is only a press release, so the provincial and territorial auditors will be auditing based on a press release.

Ms. Campbell: They will be audited on the basis of how the provinces and territories meet the public statements they made, and then the provinces and territories will flesh out those public statements in their own budgets, in their own departmental plans and in how they spend the funds.


Senator Chaput: May I ask a supplementary about the police officers' fund? Section 136 of the bill refers to 2,500 additional frontline police officers over five years, or 500 per year, for all the provinces and territories.

What happens if a province needs more than the number it has been allocated? Is the total number shared equally or is it based on population? I am referring to the 2,500 number.


Mr. Potter: The broad objective is to hire an additional 2,500 police officers over the next five years, and the funding that has been provided is to assist and to support provinces and territories in achieving that objective.

Senator Chaput: Is the 2,500 the objective for all provinces and territories?

Mr. Potter: That is correct.

Senator Chaput: Will they decide on the number of police that they will be hiring, according to the money that you are giving them?

Mr. Potter: In developing this fund, we engaged in fairly extensive consultations with the provinces and territories on the best approach, as well as with stakeholders such as police associations and representatives of police. Given the responsibility of the jurisdictions for policing and the administration of justice within their jurisdictions, given their diverse priorities and public safety needs, this model of the trust fund was felt to be the most appropriate to allow them to meet their diverse needs. In several jurisdictions they already have particular new initiatives to hire police officers to tackle particular priorities. In Ontario, in Quebec, in B.C., for example, we have wanted to respect their desires to focus on certain priorities, so this fund gives them the flexibility to assist them in achieving those objectives.

Senator Chaput: As an example, I am from Manitoba and, if I understand correctly, as a citizen of Manitoba if I want to make sure that my province, my provincial government, hires a certain number of police, how do I make sure that it happens, seeing that the federal government has no signed agreement with my province?

Mr. Potter: To elaborate on the comments made by my colleague, Ms. Campbell, two things happened immediately after the budget. The first was Minister Day wrote a letter to all of his provincial and territorial colleagues indicating the intent of the fund, the purpose of the fund, which was to hire 2,500 additional police officers. In that letter he also indicated that in order to participate in the initiative, provinces and territories should write back to him, confirming their desire to participate and their intention to respect the objectives of the fund. All provinces and territories did write back within about three to four weeks after the budget indicating their intention to do that.

The second thing they were asked to do was to make a public commitment via a press release to achieve the objectives established by the initiative. As mentioned, they would then be held accountable to their publics for achieving those objectives.

Senator Chaput: There has been an exchange of letters between the federal government and the provinces and territories, and then will the public communication be done once they get the money?

Mr. Potter: The public communication has already taken place. It took place before the end of the fiscal year.

Senator Di Nino: It seems to me that there is a slight misunderstanding of this program and I hear my colleagues, and I must admit even myself, probably have been thinking about this money to hire 2,500 new police officers across the country. I believe on two or three occasions you said it was to assist the provinces and effectively the municipalities. These funds, if I understand correctly, could very easily be commingled with the budgets of the municipalities, the budgets of the provinces, and together could add in effect more than the 2,500 if that is what the provinces wished. Do I understand that correctly?

Mr. Potter: Yes, that is correct.

Senator Di Nino: We should not look at this as money to hire 2,500 people. We should be looking at this as a certain number of dollars contributed by the federal government to the provinces and territories who have expressed an interest, and I understand they all have, to be able to increase the number of police officers that we have across the country, with the objective of increasing that number by at least 2,500, and it could be much larger. If I heard your answer before as well, there is some flexibility that the program could be extended for a longer period than five years if the province so wished. Is that correct?

Mr. Potter: On your first point, the broad objective of the initiative is to hire additional front line police, with the goal of enhancing public safety. In terms of your second question, that would be a matter for future ministers and governments to decide.

Senator Di Nino: Did you not say that that money could be spent for a longer period than five years and there is some flexibility?

Mr. Potter: Within five years the money will have to be removed from the trust fund that the federal government has established. The provinces and territories then have the flexibilities within their jurisdiction, depending on their auditing and accounting rules, to spend the money as they are permitted to do.

Senator Di Nino: Thank you for the clarification.

For another clarification, the bill that we are asked to pass here, clause 136(1), states "to support the recruitment of." That is the wording, not "to hire" but "to support the recruitment of."

Senator Murray: Ms. Kane, to sum up here, so I can get my mind around these provisions in Part 6. The offensive clause in your mind, when that is combined with subclause 3, is 87.3(2)? Subclause 87.3(2) reads:

The processing of applications and requests is to be conducted in a manner that, in the opinion of the Minister, will best support the attainment of the immigration goals established by the Government of Canada.

Ms. Kane: That is one aspect, but coupled with subclause 5, which is:

The fact that an application or request is retained, returned or otherwise disposed of does not constitute a decision not to issue the visa or other document, or grant status or exemption, in relation to which the application or request is made.

By not constituting a decision, there is no judicial mechanism to oversee the decision to retain or otherwise dispose of. If you have an application in the queue, and the Minister of Immigration decides that they are either going to retain, perhaps for future consideration, or dispose of your application —

Senator Murray: There is no judicial recourse.

Ms. Kane: As a prospective immigrant you are putting an application into the system, you have paid money for that application, you have invested your time and effort in getting that application, and the minister, in his or her discretion, has the power to dispose of your application. When they exercise that ministerial discretion to dispose of your application that is not a decision for which you can seek judicial recourse.

Senator Murray: The whole purpose of sub clause 5 is to deny judicial recourse.

Ms. Kane: I do not know that it would deny, but if it is a decision then there is recourse to judicial review, but if it is not a decision then there is no recourse because there could only be judicial review on a decision.

Senator Murray: What other purpose would there be for subclause 5 except to eliminate the possibility of judicial recourse? The request can be retained, returned or otherwise disposed of. However, that is not a decision.

Ms. Kane: No, and after you have had this application in the queue —

Senator Murray: What other purpose would there be in this subclause except to eliminate the possibility of a judicial recourse?

Ms. Kane: I cannot comment on that other than to say —

Senator Murray: Please do. You are here as a representative of the Canadian Bar Association. Help me.

Ms. Kane: They are saying that they want to dispose of the application to reduce the backlog. If there are 925,000 applicants in the queue and they can put yours in a shredding machine, then they have disposed of it and do not have to account for it.

Senator Murray: It is not a decision.

Ms. Kane: It is not a decision. They could return your application and say, "Here are your funds. I am sorry; not this time."

Senator Stratton: The person may have died. The person may have moved to another country and is no longer interested because they have been in the line-up for five years. They will go to Australia.

Senator Murray: We are talking about after February 27. Let me come back, Ms. Kane, to subclause 3 because I want to be clear about this. For the purposes of subclause 2, that is the one where the processing of applications will be conducted in a manner that in the opinion of the minister will best support the immigration goals.

For that purpose, "the minister may give instructions with respect to the processing of applications and requests, including instructions, (a) establishing categories of applications or requests to which the instructions apply."

Am I correct that your view is you would have no objection to that being done under the present regulatory authority of the government, if the government did that under its present regulatory authority? Your view is that it has the authority to do that presently?

Ms. Kane: It establishes categories, and that is by regulation and the legislation, yes.

Senator Murray: Sure. "(b) establishing an order by category or otherwise for the processing of applications or requests." Can that be done under the present regulatory authority of the Governor-in-Council, and would you have any objection to it being done that way?

Ms. Kane: Presently, the requirement under the legislation is that all applications must be processed first come, first serve. The only action the government is unable to take under the current legislation and regulatory framework is to return applications unprocessed. That is the only thing they cannot do under the current act. Establishing an order, they have done so already.

Senator Murray: "By category or otherwise."

Ms. Kane: "By category," yes. I cannot comment on "otherwise."

Senator Murray: Who know what it means. What do you suppose it means?

Ms. Kane: I cannot comment on that. By category, they do process family class applications; spouses and dependent children of Canadian citizens and permanent residents have high priority as provincially nominated applicants have high priority.

Senator Murray: They could change those priorities by regulation?

Ms. Kane: They could.

Senator Murray: "(c), setting the number of applications or requests by category or otherwise to be processed in any year." The government has that authority, and you would have no objection to their doing so if they exercised it in the process that is now laid down?

Ms. Kane: The government currently sets the number of applications or requests that they would process annually in their reports to Parliament.

Senator Murray: By category or otherwise?

Ms. Kane: In the overall category of the number of immigrants they will accept. In terms of establishing a quota system, we do not have a quota system at the present time.

Senator Murray: You mean an overall quota system?

Ms. Kane: By category. I do not know the details on that. I cannot speak to the actual numbers, but right now everyone who puts in an application can expect a decision at some point. The problem is we have a backlog, and so these decisions are not being rendered as fast as we would like. However, everyone who puts their application in can expect a decision. If you set a quota or a number by category, perhaps they will not be able to get a decision.

Senator Murray: Ever. However, under the present law, the Governor-in-Council has the legal authority to regulate as indicated in subclause 3(c). That is your testimony. They could now, under their present regulatory authority, set the number of applications or requests by category or otherwise to be processed in any year.

Ms. Kane: They have an overall number. I do not know if it is determined by category, and setting a number of applications or otherwise is not explicit enough for me to comment on.

Senator Murray: But by category.

Ms. Kane: There are overall numbers, but they are not saying we are only taking 10 family class.

Senator Murray: But they could.

Ms. Kane: I cannot comment on that.

Senator Murray: Your testimony is they have the authority.

Ms. Kane: They report their annual numbers to Parliament. Perhaps Ms. Froc can deal with that.

Ms. Froc: I think what we are saying in our submission is they have the authority to have all the powers they are seeking under the bill except for the power to reject applications unprocessed.

Senator Murray: In other words, subclause 5.

Ms. Froc: Exactly. That is what they do not have now that we take issue with.

Senator Murray: What does subclause 3(d) mean? The minister may give instructions with respect to the processing of applications and requests including instructions, "(d), providing for the disposition of applications and requests including those made subsequent to the first application or request."

Ms. Kane: Perhaps you were a skilled worker and made an application at our Canadian consulate in Damascus, Syria, where the wait times are extremely long, and then in the interim you were nominated by the provincial nomination program in Manitoba and were fast-tracked for a work permit and came to Manitoba and started working. You find now you have made this application beforehand. It is pending at our Canadian consulate in Damascus. Now you are in Canada on a work permit. You are no longer stuck in that region of the world where you are forced to utilize that office. You can simply come to Canada on an interim work permit and make a new application under the provincial nomination program and file that application in a visa office closer to where you are living in Manitoba. The closest Canadian visa office that would process that would be in the United States, and so you could technically file another application. The Government of Canada then says, "You have multiple applications. We want you to stick with one application." They have the power to dispose of perhaps the one in Damascus, and if you were the applicant, you would want to dispose of the one in Damascus because it will not be processed any time soon. If you were proactive, you would put your application into the provincial nomination program in a consulate in the United States.

Senator Murray: Is there an objection on your part to subclause 3(d)?

Ms. Kane: That provision is problematic in that I believe the government is trying perhaps to limit the amount of applications someone could utilize in the humanitarian and compassionate classifications, because clause 25 limits a humanitarian compassionate application and consideration to those in Canada and is not required to make a decision on humanitarian and compassionate applications outside Canada. Perhaps the government's objective is to ensure that someone is not seeking to make multiple applications and somehow get around the instructions.

Senator Murray: You are an executive member of the immigration and citizenship section. Is that of the Canadian Bar Association?

Ms. Kane: Yes.

Senator Murray: What is that? I would not be eligible to be a member of your association, unlike some people here, but how does that work? Lawyers who are specialists in immigration and citizenship law simply join up to that section of the Canadian Bar Association?

Ms. Froc: That is correct. In the Canadian Bar Association, there are various grouping sections around different areas of law. For example, the citizenship and immigration section would be practitioners of that area of law. I believe there are 1,100 of them across the country. It is a democratic process. That group of lawyers elects people to the executive who are the leaders of that section and are the authors of this paper that you have before you today.

Senator Murray: Would policy, to the extent that there is policy, be decided upon by that section or by the CBA at its annual convention?

Ms. Froc: Correct. There are two processes. There are resolutions that are voted upon by council and many of our submissions are based on that policy. I believe that some of that policy went into this submission as well.

In terms of the submission you have before you, that was voted upon by the section, but the Canadian Bar Association as a whole had approved that as a statement of the section.

Senator Murray: Apart from monitoring various legislative initiatives in this field, has the Canadian Bar Association done anything of a longer-term basis on immigration law? One hears that the whole area needs a complete rethink. Has the bar association ever tackled something as long-term and as profound as that?

Ms. Froc: Yes. The Canadian Bar Association will do various reports from time to time and I believe that there have been some done on immigration law, but nothing very recently. Our most recent very thorough review of immigration legislation would have been around the time that IRPA was introduced in 2001. However, your comments are valid, that the section would agree that immigration law needs an overhaul and that the backlog is an indication of that.

Senator Murray: Have you seen Tom Kent's op-ed piece in The Globe and Mail on April 26? You know who he is. He is an immigrant himself who rose to become, among other things, Deputy Minister of Citizenship and Immigration. He is now retired. Its headline reads: "Citizens with duties. Canada is much more than a hotel. If they are not ready to commit to a citizenship that has real consequences, immigrants should move on."

As you might expect, it is a well-thought-out piece. Have you seen it?

Ms. Froc: I cannot comment on it. I think I saw the headline, but unfortunately I did not have the opportunity to read the article.

Senator Murray: It raises longer-term, broader and more profound questions that one would hope eventually the Canadian bar and others would try to tackle because we seem to be coming up dry in terms of political will to tackle long-term problems that are there.

The Chair: As a point of clarification, Ms. Kane, you were going through the various subsections of section 87.3 of the act, at page 96, with Senator Murray. The heading for that section to which all of these subsections apply is that "the Minister may give instructions". Senator Murray was saying with respect to each of these they had the regulatory authority under the existing act.

That highlights the point you made at page 3 of your letter of April 30. With regulation and the regulatory power, there is a pre-publication in the Canada Gazette so that everyone can see what the minister is proposing. Changes can be made. Is that correct?

Ms. Kane: Commenting on it, giving advice based on experience. Basically, notifying the public and giving the opportunity to provide input instead of a unilateral decision by the minister: "These are my instructions."

The Chair: As I understand the regulatory process, the final regulations are published before they are effective?

Ms. Kane: Correct.

The Chair: In subsection (6), do you see any requirement that these instructions be published before they are effective?

Ms. Kane: The instructions have to be published.

The Chair: When? They could be published after they are in effect.

Ms. Kane: The instructions are not pre-published.

The Chair: They are not pre-published. There is no pre-effective consultation, no opportunity, so in effect, what could happen here is that a person or group of people could make an application. The minister decides that she wants to exclude those people, so after the applications have been made, she could publish instructions that would exclude those people.

Ms. Kane: Correct.

The Chair: Is that the typical due process we have in our legal system?

Ms. Kane: Not at all.

The Chair: Are there any other questions arising from those questions?

Seeing none, I would like to thank each and all of you for coming on short notice. We have been studying the subject matter. The information you have given us with respect to the two aspects of Bill C-50 today will be helpful for us in deliberation. I anticipate that the bill will be referred to us and we will refer to all of this information that we have gathered to our study.

We look forward to seeing you again in due course on something else.

This meeting will pause for two minutes and then we will deal with the report on infrastructure.

The committee continued in camera.

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