THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS

EVIDENCE


OTTAWA, Monday, February 20, 2012

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-10, An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts, met this day at 12:00 p.m. to give consideration to the bill.

Senator John D. Wallace (Chair) in the chair.

[English]

The Chair: Good afternoon. I am John Wallace, a Senator from New Brunswick, and I am Chair of the Standing Senate Committee on Legal and Constitutional Affairs. Today we are continuing our review and consideration of Bill C-10, the safe streets and communities act. The overall goals and objectives of Bill C-10, as stated by Justice Minister Nicholson and Public Safety Minister Toews in their previous appearance before this committee, are to further enhance the public safety and security of all Canadians and to provide additional rights, privileges and protection for victims of crime, including those who have been victims of acts of terrorism.

The role and function of this committee is to carefully examine, consider and make recommendations concerning all the components of Bill C-10 that relate to the following matters: the production, trafficking, importation and exportation of illicit drugs; the international transfer of offenders back to Canada to serve the remainder of their foreign sentences; the entry into Canada of vulnerable foreign workers who may be involved in human trafficking and subject to exploitation or abuse; deterring acts of terrorism and providing justice for victims of terrorism; the commission of sexual offences against children; the commission of serious violent and repeat offences by youth; and proposed changes concerning the granting of conditional sentences or house arrest, parole and pardons.

Honourable senators, we are very pleased to have with us today a witness from the Assembly of First Nations, Mr. Roger Jones, Senior Strategist.

Welcome, Mr. Jones. We were expecting to have two witnesses, but unfortunately Grand Chief Atleo is between locations in the North and is trying to get to a location where he can connect to us by video conference. We hope that before this session is finished he will be able to join us.

Mr. Jones, we received and carefully reviewed the written submission dated November 22, 2011, that was provided by the Assembly of First Nations, AFN, in regards to Bill C-10. We thank you for that. It was very comprehensive and very well articulated.

I understand that you have an opening statement, and we would be pleased to hear it.

Roger Jones, Senior Strategist, Assembly of First Nations: Thank you, Mr. Chair, and good afternoon to all of the senators. Thank you very much for the invitation you extended to the Assembly of First Nations to hear First Nations’ perspectives on the bill.

As the chair pointed out, National Chief Atleo was scheduled, and perhaps still may be able, to appear before you via video link. He is currently back in his home community, Ahousaht. Arrangements were made at a facility there to link him up, but technology is failing us this morning. He was looking forward to this opportunity to share with senators the concerns of the First Nations peoples about Bill C-10.

Copies of the national chief's speaking notes were distributed, I believe. I will read only a portion of that into the record, because I know that you want to have an exchange about some of the issues that are raised in the submission we provided.

This matter is incredibly important for all indigenous peoples in Canada. As you know, the AFN made a request to appear before the House of Commons committee, but unfortunately we were not successful in being granted that opportunity. The national chief sent an extensive letter and attachment to the Minister of Justice, the Honourable Rob Nicholson.

First Nations are of the view that Bill C-10 will result in compounding the already unacceptable overrepresentation of our people in the criminal justice system. This conclusion is supported by a massive amount of evidence that documents how the system has been disrespectful of and ultimately destructive to the lives of our peoples.

The raw statistics also tell a clear story. While our population is 4 per cent of the general population, our peoples make up almost a quarter of the prison population. The inmates have largely grown up in poverty, have poor education and too often are young people suffering multi-generational effects of residential schools, the child welfare system and displacement from their families, cultures and homes.

In 1996, the Royal Commission on Aboriginal Peoples drew two conclusions: first, that there is a consensus that the justice system has failed our people, and second, that notwithstanding the hundreds of recommendations from previous commissions and task forces, the justice system was still failing them in 1996. Tragically and unacceptably, nothing has occurred between 1996 and now, a period of 16 years, that allows us to draw any different conclusions.

The failure that the royal commission pointed to is characteristic of all aspects of the criminal justice system, from policing to sentencing to imprisonment to post-release services. The current criminal justice system has profoundly failed First Nations peoples by failing to respect cultural differences, by failing to address systemic biases against our people and by denying them an effective voice in the development and delivery of services.

It is recognized that many of the deep social and economic challenges manifested in indigenous families and communities is the legacy of colonization and associated efforts at assimilation. The tragic legacy of residential schools, the dislocation caused by forced adoptions known as the Sixties Scoop, and cultural and socio-economic marginalization have all impacted First Nations people.

This legacy of past government policies has caused deep wounds that fester in the current generation. The dramatic overrepresentation of First Nations peoples' interaction with the criminal justice system, both as victims and offenders, is attributable to these past policies and the underlying social and economic conditions our peoples face.

Subjugation of indigenous peoples to a criminal justice system that is at complete odds with indigenous social and political organization and cultural values and beliefs aggravates and perpetuates the problem of overrepresentation.

Recent statistics further illustrate this point. When accused, our people are more likely to be denied bail. They spend more time in pretrial detention. They are more likely to be charged with multiple offences and often for crimes against the system. Our people are more likely not to have legal representation and spend less time with their lawyers. Finally, First Nations offenders are more than twice as likely to be incarcerated as other offenders.

Between 1998 and 200, federally incarcerated First Nations, Metis and Inuit populations increased by 19.7 per cent. In the Prairie provinces, 50 per cent of prisoners are indigenous peoples. Indigenous women in federal incarceration have increased by 131 per cent. In fact, the case of both First Nations women and First Nations youth is particularly alarming as these rates of overrepresentation are even more dramatic. Tragically, with Bill C-10 we will see the current very apparent problems be further exaggerated, creating greater costs and, more important, far greater harm to our peoples and our communities.

Bill C-10's sentencing regime means that a larger number of First Nations people will find themselves in mandatory custody for significant periods of time, notwithstanding their particular rehabilitative qualities. Justice requires recognition of the reality that First Nations people must overcome systemic discrimination, poverty and societal dysfunction to reach an acceptable level of well-being.

Let me just point out the major problems as we see them with Bill C-10, and I would encourage this committee to think very carefully through every opportunity it has to ensure oversight and assessment of the potentially devastating consequences of this Bill to our population, which already experiences the failure of criminal justice in this country.

We do go through certain parts of the bill, which we believe will compound the probleMs. That has been detailed in the written submission, so perhaps I will not repeat that part and will instead finish up with some conclusions so we can have more time for discussion.

one of the points we wish to implore upon you is that as parliamentarians you are aware that the Constitution Act, 1867 and the Constitution Act, 1982 have specific sections relating to First Nations peoples and their rights. You may also be aware that the courts have considered these provisions and observed that these provisions give rise to legal requirements, such as fiduciary obligations and maintenance of the honour of the Crown in dealings with First Nations people, both in an executive and a legislative context.

First Nations are certain that elements of Bill C-10 will have harmful impacts, and that is our principal message to you today.

The Chair: Excuse me, Mr. Jones; we have just been joined by National Chief Atleo by video conference. Chief, are you able to hear us?

Shawn A-in-chut Atleo, National Chief, Assembly of First Nations: I am.

The Chair: I am John Wallace, the chair of this committee, and we are extremely pleased that you are able to join us. I realize it has been difficult for you to get to the video conference, but this is wonderful. We are very happy to have you. I believe Mr. Jones is just in the process of finalizing what would have been your opening statement, and then we will move to questions. If we could, we will allow Mr. Jones to continue; then we would be very pleased to hear any comments you may wish to make in addition to that, Chief Atleo.

Mr. Jones: I will complete my comments by pointing out one of the statements made by Minister Vic Toews to this committee, which I read while reviewing the record of his appearance with Minister Nicholson. He said:

Predicting the future and the future impact of a Bill is always very difficult. We rely on the expertise of our officials to give us some indication.

It is obviously a reality that you cannot predict exactly how legislation will impact on people, but I think you can do a good job in forecasting or in trying to sense that it will produce an impact. one of the documents we looked at in relation to the preparation of our submission was a report that was issued by the Office of the Correctional Investigator, I believe in 2009. It is called Good Intentions, Disappointing Results: A Progress Report on Federal Aboriginal Corrections.

There are many important bits of information in this report, but one that is contained in the executive summary says:

With the Aboriginal population much younger than the overall Canadian population and experiencing a higher growth rate, the problem of Aboriginal over-representation in corrections continues to worsen rather than improve. Compared to non-Aboriginal offenders, the gap in positive results for Aboriginal offenders across the spectrum of correctional processes remains significant throughout sentence.

The offending circumstances of Aboriginal offenders are often related to substance abuse, inter-generational abuse and residential schools, low levels of education, employment and income, substandard housing and health care, among other factors. Aboriginal offenders tend to be younger; to be more likely to have served previous youth and/or adult sentences; to be incarcerated more often for a violent offence; to have higher risk ratings; to have higher need ratings, to be more inclined to have gang affiliations, and to have more health problems, including Fetal Alcohol Spectrum Disorder (FASD) and mental health issues.

I point out that some elements of the Bill are in fact directed at some of these issues, dealing with illicit drugs and protecting society against repeat young offenders and so on, so these changes will have an impact on our population.

The Chair: Thank you, Mr. Jones.

Chief Atleo, Mr. Jones gave an overview of the opening statement. He did not get into the details of each of the comments you had on the various components of Bill C-10. We have received, as you know, the copy of your submission from November of 2011. As I was saying to Mr. Jones, it is very comprehensive, very clear and well articulated, so we have had the benefit of that. Having said all of that, are there any opening comments that you would care to add?

Mr. Atleo: Thank you, Mr. Chair. I want to thank you and the Standing Senate Committee on Legal and Constitutional Affairs for inviting my colleague Mr. Jones and me. I am coming to you from my community of Ahousaht, which is a little fishing village located on Vargas Island, off the West Coast of Vancouver Island. Ahousaht is as far west as you can go on the west coast of Vancouver Island, and our little village has a tremendous amount of experience in some unfortunate ways with the criminal justice system, but in other ways using the systems that have always been in place here and ensuring that we seek to return our community back to a sense of balance, safety and security.

My village, like many First Nations villages, has been impacted tremendously by the trauma of the residential school era. Our detailed submission provides a glancing overview of the challenges, and yet for each of us, for Roger Jones or for me or for First Nations from coast to coast to coast, this is very personal. This is about our friends, our family and our relatives. The incarceration rates we are talking about include people that we know and that we care about.

To conclude, this coming week we are holding a national forum on justice in Vancouver. of specific note is the interest amongst the leaders to develop a national strategy in the area of justice, recognizing, as Roger Jones has articulated, that modifications of the present justice system cannot adequately address the problems that exist. Therefore, in the spirit of the First Nations gathering on January 24, there is a need for clear recognition and implementation of First Nations government jurisdiction. This is something that we are pursuing in areas such as education. There is a strong link between the notion of unlocking the education potential and savings to government expenditures of approximately $115 billion. For instance, if we were to close the education and labour market gap, in one generation it would constitute a contribution to Canada's GDP of at least $400 billion.

In this submission, and in that which Mr. Jones already presented, one of the questions we ask is this: Has there been an examination of the estimated costs of increased detention and incarceration of indigenous peoples, as well as the absolute requirement for culturally appropriate programming and supports through these proposed exchanges? We would submit, along with other areas such as education, child welfare and health — given the legacy wherein the Prime Minister rose in the house and gave an apology back in 2008 — that the era of reconciliation that I suggest we have engaged in calls for recognizing that First Nations governments and jurisdiction need to be supported so that we can do much better by our young people.

In my own community here, the legacy that we refer to is statistics; it is something that we understand intimately. We certainly would encourage the committee to look deeply into this issue and the implications of this bill. In the spirit of the January 24 First Nations-Crown gathering, as well as what the United Nations Declaration on the Rights of Indigenous Peoples articulates, which is that First Nations must be full partners in designing the way forward, we come to you and present in that spirit.

Thank you for the opportunity to add a few comments. I appreciate my colleague providing the remarks that I would have otherwise. My apologies for being delayed in being linked up.

The Chair: We are pleased to hear your comments and are glad that you were able to make it.

Colleagues, we will now turn to questions from our senators. I would remind you that, as you are well aware, we have extensive hearings all week. They will continue this afternoon, through to Friday of this week. We have our next panel scheduled for one o'clock, so keep that in mind as you ask your questions.

For our first question, I would turn to our Deputy Chair, Senator Fraser.

Senator Fraser: Mr. Atleo and Mr. Jones, thank you so much for being with us. It is very important to hear your point of view. I want to ask you about the Gladue principles and section 718 of the Criminal Code, which brings them, to some extent, into the sentencing provisions of the code.

As we all know, there are some very high-profile court cases leading to and arising out of those principles. Can you give me any idea of the extent to which ordinarily, on a run-of-the mill basis, the courts actually take these principles into account when they are sentencing Aboriginal offenders and, in particular, the extent to which they use those principles to avoid incarceration and turn instead to other methods of sentencing?

The Chair: Before we begin, Chief Atleo, we are getting some interference on the transmission. I am not sure if there is any background noise happening in your office, but we are picking up something here. I am being told it is the audio, so we will continue.

Mr. Jones: Thank you for that question. Our concern with respect to the impact of Bill C-10 will be to take certain sentencing principles such as Gladue out of the hands of judges because of the mandatory requirements on some sentences. Our experience has been that where Gladue has been applied, it has produced the desired results. First, the sentencing judge does take into account the history, the background of the individual, to look at alternatives to incarcerating the particular individual. Obviously, there are situations where the nature of the crime is pretty serious and some incarceration is required. However, it is always best that the sentencing judge does have the benefit of knowing what this individual has lived through in terms of their childhood, their upbringing and their youth.

one of the realities about Gladue and I think any provision or any measure in the Criminal Code or in the legal system to try to address the systemic discrimination is in the fact that by and large Aboriginal offenders do not have the benefit of legal counsel who are going to utilize and apply all of the tools that are at their disposal to be able to get the best bang for the buck in terms of measures such as that.

At one time, I practised criminal law. I saw a lot of our people simply plea for the sake of getting it done and readily accept incarceration because they did not want to have to prolong it. They really were not very well-informed about their rights and their entitlements.

Sometimes individuals did not get the benefit of these, simply because of a lack of legal counsel. However, where they are applied, they do make a difference. I do speak with my brothers and sisters who are in the legal profession and who utilize these provisions in the code for the benefit of their clients.

Senator Fraser: To the extent that this bill, in various sections, overrides section 718, sets aside Gladue, it would be your expectation then that those very high statistics for incarceration of Aboriginal people go even higher?

Mr. Jones: That would be our assessment because, unfortunately, the nature of these crimes that are involved do involve drugs. Sometimes they are violent, serious offences. Unfortunately, that defines some of the people who will be impacted by this.

In some respects, yes, this is going to exacerbate a problem where, currently, if Aboriginal accused are represented appropriately and do have counsel that will do everything they can to provide adequate representation, these tools are there. After this Bill becomes law, then those tools will no longer be there for some of those cases and those people will end up in prison.

Senator Fraser: Thank you very much.

The Chair: We will move along now to Senator Runciman.

Senator Runciman: Thank you, gentlemen, for contributing to the committee's deliberations. That is very much appreciated.

I am curious about a couple of things. The mandatory minimums contained in this legislation are dealing with offences against children and focusing on drug trafficking. We do not have a breakdown of First Nations convictions falling into those categories. I am assuming the primary problem you are facing is with drugs. Maybe you could speak to that. When you look at these mandatory minimum penalties, we are focusing on linkages to trafficking of drugs and sex offences against children. Can you speak a little bit more about why you see this as such a concern within your communities?

Mr. Jones: With respect to sex offences against children, there is no argument with the need to protect and safeguard all our children. I think in the past it has been clearly established that indigenous children have been particularly vulnerable to sexual abuse because of the situations that they were put in, whether that was residential school or through the adoption of indigenous children outside of their own communities.

Absolutely, our children deserve as much protection as possible. That is something that we hope will, in fact, better protect our children. We have also been aware that at times our children have not had the benefit of having the law, whether it is the policing service or the Crown prosecutorial service, treat these cases as they would treat others. In fact, they would sometimes blame the children themselves for engaging in activity, whether that is alcohol consumption or drug consumption, for putting themselves in those situations. We hope that the entire administration of justice will in fact ensure the equal protection of our children by laws such as this.

On the drug trafficking side, one of the realities that perhaps we need to own up to is the fact that Aboriginal youth are getting involved in gang activity. In the larger urban areas, Aboriginal gangs are in fact a big reality and they are extending their reach into communities on reserve. No doubt they are engaged in some form of trafficking, so that those individuals will be caught up by these provisions.

As I pointed out, and as was pointed out by the report of the Office of the Correctional Investigator, many of these people are young people who get caught up in gang activity, either as a result of being incarcerated and exposed to gangs and gang leadership or, quite simply, on the street. They get caught up in these activities, not as a matter of preference, but in reality that is what life holds for them in terms of having to deal with all of these other factors like lack of education, lack of jobs and so on.

It is anticipated that it will, in fact, unfortunately, impact the young people to a greater extent.

The Chair: Excuse me, senator. We are having a problem with the translation. The translation is not working. I understand, unfortunately, Chief Atleo, the problem is that, with the video conferencing connection, we are not able to translate, and we do have to translate. I understand the only solution to that — and I really hate to say this — is that we would have to terminate the connection to you, chief, in order to do the translation. Would that be acceptable? I am truly sorry about that. Would that be acceptable to you?

Mr. Atleo: Absolutely. Maybe by way of concluding on my part, I want to thank the Senate committee again. You are in good hands with my colleague, Mr. Roger Jones. I am very concerned about the direction this Bill is taking us and feel strongly, as someone who has worked in the addictions treatment field in my own home territory, that it is really prevention, support, rehabilitation and overcoming the trauma and resulting addictions.

In the end, it is a comparable approach that we are seeing at the federal level, that there was a report done back in 2005 by the Canadian Council of Chief Executives that really spoke to the notion that you can only build economically sound and prosperous communities if those same communities are safe and secure.

The direction this is heading does not support the notion of First Nations creating safe and secure communities. These young people we are talking about right now are more likely to end up in jail than in school. That is certainly a trend we want to reverse.

Thank you again. I understand the technical requirements and support them. I will sign off at this juncture and I appreciate that Mr. Jones will undertake to represent the Assembly of First Nations for the balance of the hearing. Thank you.

The Chair: Once again, chief, our deepest apologies for this. To hear your words, as brief as they were, means a great deal to us and we thank you for that. We look forward to seeing you again. Thank you.

Mr. Jones, at this point we will have to move along to our next senator, Senator Jaffer.

Senator Jaffer: I had a question for Chief Atleo, and perhaps, Mr. Jones, you can answer it. If not, perhaps we could get a response before the end of this week.

I recently attended a meeting hosted by the government, and these meetings were widely reported in the media as an effort for the government to begin repairing relationships between Aboriginal people, Canadians and the government. The language that came across was positive, the language of reconciliation of Aboriginal people with the people of Canada and, of course, the Crown.

Can you speak to how Bill C-10 contributes to this reconciliation? What portions of the Bill work toward achieving the goals established by the government in the recent meetings with First Nations chiefs?

I will ask both of my questions, and if you cannot answer them maybe Chief Atleo can complete the answer. I have not completely decided, but I am looking to introduce an exemption to section 718.2(e) on the Gladue principle. If we introduced that and it was accepted, would it answer your concerns?

Mr. Jones: Thank you, senator. We searched high and low in the Bill to find elements of it that would move the relationship forward and deal with the situation that our people face in the criminal justice system.

First, no doubt we would find favour with any legislative amendments that would be designed to maintain and in fact enhance the ability of the criminal justice system to take into account the circumstances of Aboriginal offenders, as in the Gladue context.

There is also no doubt that measures such as the drug treatment court program are extremely helpful, because unfortunately a lot of the Aboriginal offenders are probably in need of some treatment, and the ability of a court, within the overall Canadian criminal justice system, to be able to deal with those situations is beneficial.

Unfortunately, I think, as in the case of Gladue and Gladue courts, drug treatment courts are few and far between. As I understand it, there are half-dozen of them across the country that do the job they are supposed to do. However, our people are everywhere, and not just in Toronto, Vancouver, Edmonton, and so on, where these facilities are. They are also required in our home communities. Drug abuse and drug treatment programs are also a requirement in our communities. Where our people are dealt with, when they are charged with offences under the Criminal Code, the nature of which we are talking about here, is often in the adjacent, non-indigenous community. There are no facilities there, because they are often very basic court facilities. Much like the system itself, they simply process people: get them in, get them out, and on to the next case.

The expectation around reconciliation is that more needs to be done to address, as the national chief spoke to, the governance capacity of our communities to be able to deal with these issues in a way in which people will be made accountable to their own people and to their own communities. When you get processed as an accused person in a town adjacent to where you live, there is no accountability back to your own people, even though it is your people you may have harmed by way of property or personal offences. These court systems that currently process our people are not operating in our communities. Therefore, there is no accountability.

[Translation]

Senator Boisvenu: Thank you very much for being here today, Mr. Jones and Chief Atleo. In western Canada, there is an overrepresentation of Aboriginal youth in the prison system. We really have to find ways to better support those communities and young people so that they can avoid a life of crime. Tightening the Criminal Code for this type of crime is not enough. We also need to provide communities with greater support in social matters, education and health.

Aboriginal leaders who have come here previously talked at great length about the reality in western Canada in terms of overrepresentation in prisons and crime; in eastern Canada, including Quebec, is the situation the same or is it different?

[English]

Mr. Jones: Thank you, senator. Unfortunately, I cannot speak to statistics from region to region, but I can certainly undertake to try and provide that information to you. I would generally point out that the situation facing our people, both as a general population and as the youth, is that we often see that it is a national reality and it is not restricted to the Prairie provinces or the Western provinces. At best, I can try to undertake to provide information to you and your fellow committee members as to what the statistical realities are from region to region.

The Chair: Senator Boisvenu, we will have to move along to the next senator. With the number on the list now, we will be able to have everyone who has indicated they want to speak to get on the first round. I am sorry about that.

Senator Munson: I will be brief. I wanted to follow up on Senator Boisvenu's question. On community-based sentencing, in your estimation, is it more successful? Can it be more successful? How can it be more successful? It repeats the question of finding out the success rate as opposed to incarceration.

Mr. Jones: I believe Minister Nicholson was quoted in this weekend's article that appeared in The Globe and Mail as reporting that measures like the Aboriginal Justice Strategy, which in fact is able to deliver these pilot projects of community or alternative sentencing, work; otherwise, the government would not continue to put investments into these kinds of initiatives. You will hear First Nations leadership and First Nations community people say, "Yes, they work."

Unfortunately, as in the case of drug treatment courts, the availability of these kinds of private projects is dependent on funding. These programs are often cost-shared by the federal and provincial governments, and there is never enough to go around. That is the unfortunate reality. Our message would be that perhaps if there were more investment in this kind of programming by the federal and provincial governments to make these programs more widely accessible and available, then perhaps the investment would pay off by lower incarceration rates, where in fact the cost is quite high to keep a person in the corrections system. That is a pretty high cost.

one of our messages is that you either increase your costs by putting more of our people into the prison system or you can invest in programs and initiatives aimed at trying to keep our people out of the prison system. There are programs and policies to build on that have been in place for a few years and have shown positive outcomes. I would suggest that perhaps you might want to investigate those avenues, in addition to measures such as legislative amendments to provide exemptions in clear situations where the offender is an indigenous person.

Senator Lang: I think we all share the real concerns across this country with the First Nations community and the challenges they face and the challenges that face government, whether they be First Nation, provincial, municipal, or federal. However, I just want to go back to the legislation before us. Senator Runciman touched on this in his opening questions in respect to the actual Bill and what it refers to, which is basically sexual exploitation and the trafficking of drugs.

Not unlike yourself and the Chief of the Assembly of First Nations, I come from the North. I come from an area where the majority of communities are very small. We do have a drug problem. It is not just in Toronto or Vancouver but can be found in most of our communities in the North and northern parts of the provinces. We all share that.

Then to the question of sexual predators and sexual exploitation, I want to point out that I think a lot is being said about this bill, but I do not think the public is being told exactly what it says. There is mandatory minimum sentencing for offences that cross that moral line that we, as a society, are not prepared to accept. For example, if this Bill passes, sex exploitation of a young person will be mandatory one year. I have to ask you, as a representative of the Aboriginal community, what is wrong with a mandatory sentence of that kind for an individual who has obviously taken advantage of in most cases a young woman, a young girl, who has victimized her, and who has to go to jail for at least one year if proven guilty? It would seem to me, from the victim's point of view, that maybe that might give, in this case, her some comfort that there was a consequence to that action.

The Chair: Senator Lang, I think you have asked your question. Do you understand the question?

Mr. Jones: Yes, I do. Quite frankly, I do not think you can ever avoid looking at the circumstances of an individual in determining what the best thing is to do in addressing harms that have been inflicted. I think you still have to look at the circumstances. However, I agree with you on your assessment that perhaps the story about this Bill is not being properly told because perhaps there is too much emphasis on the mandatory sentencing part.

As we point out in our submission, we have problems with other parts of this Bill that relate to changes to the young offenders legislation, to corrections and conditional releases, and to the International Transfer of Offenders Act. When taken together, this will impact our people quite broadly.

I think you are right in that it is not just about mandatory sentences. This has a further implication for our people, and that is something we want the committee and the government to know, that that will ultimately be the effect and the impact.

Senator Cowan: The short title of this act is "Safe Streets and Communities Act," and all of us, whether we are legislators or leaders like yourself, would be in favour of doing anything we reasonably could to make our communities and streets safe. The issue we are struggling with is whether this particular piece of legislation in its many parts does in fact do that.

Earlier you referred to a statement by Minister Nicholson when he was asked about the effect of this legislation, and he said it was difficult to predict the future effect of legislation, and that is true. It is true that it is difficult to predict future performance, but you look at past performance and it is a pretty good indicator of future performance, is it not?

Mr. Jones: Yes.

Senator Cowan: I would suggest to you and ask if you agree with me that we have enough evidence now as to the impact of this type of mandatory minimum sentencing regime, which has, in my view, been a failure here and in other countries, to reasonably assume that perpetuating and expanding that will have a similar impact in Canada. I ask you particularly with respect to the devastating statistics that you referred to in the submission that you attempted to make to the House of Commons earlier but that has been submitted to the Senate here with respect to impacts of our criminal justice system on our Aboriginal peoples. Can you comment on that?

Mr. Jones: of course I would agree with the perspective that you put forth. I would in fact take it a step further and say that historically we have had countless examinations about the treatment of indigenous people by the criminal justice system in Canada, whether it is through the Royal Commission on Aboriginal Peoples or various provincial inquiries, right from Marshall to the inquiry that is currently going on in British Columbia regarding murdered and missing women, many of whom are indigenous. There are countless reports, studies and evidence that establish that fact. Many recommendations have been put forth about how to deal with that situation, yet it is status quo or in fact potentially worsening.

I think the reality we face is that this is nothing new; we keep driving home the same message, yet it is not producing any changes.

Senator Cowan: Mr. Jones, can you point us to any study, any review or any statistics that would indicate that this type of approach will make our communities and our streets safer?

Mr. Jones: No, I cannot.

Senator Frum: Thank you, Mr. Jones. When they appeared before this committee, Minister Nicholson and Minister Toews made it clear that the purpose of Bill C-10 is to focus on serious, violent and repeat offences. In the context of Gladue, we have heard testimony here that Gladue exists to reduce sentences for Aboriginal peoples. I want to ask you about a specific section of the Gladue decision where it was said that:

It is also unreasonable to assume that aboriginal peoples do not believe in the importance of traditional sentencing goals such as deterrence, denunciation, and separation, where warranted. In this context, generally, the more serious and violent the crime, the more likely it will be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is aboriginal or non-aboriginal.

I would like you to discuss that. I think that makes it clear that the Gladue decision really does not apply in most Bill C-10 offences.

Mr. Jones: I cannot comment specifically on statistics, but I know the point, and the point is that any offender who comes into conflict with the law in the nature that is described has committed a serious offence and should be held accountable. I think the name of the Bill is something that we all want; we want safe streets and communities, none more so than First Nations communities across this country, which we do not have the benefit of. The fact is that when it comes to deterrence and accountability, it is simply not there.

When our people are getting processed outside of their own community realities, they do not feel accountable to their community at all. When you are sitting in a courtroom in an adjacent town or city to where you have committed the offence or where you are being processed, all of those great principles of deterrence and accountability, unfortunately, do not apply. Not that they are not valued or valid — I think our communities would want those kinds of principles applicable, which is why I think our emphasis is on how to address the reality in this country that indigenous peoples are dealt with more harshly by the system. I think people believe that the solution lies in our communities taking responsibility for their own people and for those individuals to be accountable to them as well.

Senator Angus: Mr. Jones, it is good to see you here again, sir. You have indicated that, at least in the case of Aboriginal youth, these amendments would involve an element of discrimination against them. Could you make that a little clearer? When you say you feel, based on the mountains of evidence, that First Nation youth will be unfairly targeted and harmed by these changes, that is kind of a specific charge.

Mr. Jones: That point relates to the fact that statistically our youth, unfortunately, are falling victim to street life and gang life, and changes to the act, which means incarceration for repeat offenders, will impact those individuals.

Senator Angus: More than other individuals?

Mr. Jones: Yes. That is the reality. Statistically, those situations already exist. If in fact the Bill is going to deal with repeat offenders, those are the people who will get caught up in the change.

The Chair: That concludes our time with Mr. Jones; unfortunately, our time with National Chief Atleo was cut short.

Mr. Jones, thank you so much for your contribution to the work we are doing. We have certainly heard what you and the chief have had to say today. As we pointed out earlier, we received your written submission, and it will be very helpful to us.

Once again, thank you. We look forward to seeing you on your next visit to this committee.

Honourable senators, we will continue with our review and consideration of Bill C-10, the safe streets and communities act. The next portion of our consideration involves Part 5 of Bill C-10, which proposes to amend the Immigration and Refugee Protection Act to provide that the objectives of the act will be to protect public safety and to maintain the security of Canadian society. Additional proposed amendments would preclude situations in which foreign nationals might be exploited or become victims of human trafficking in this country. These amendments would provide immigration officers with the discretion to refuse to authorize foreign nationals to work in Canada if, in their opinion, the foreign national is at risk of being a victim of exploitation or abuse.

We are pleased to have with us as our next panel today, representing the Canadian Council for Refugees, Ms. Loly Rico, Vice-President; welcome, Ms. Rico. By video conference, we have appearing before us Mr. Benjamin Perrin, Assistant Professor, Faculty of Law, University of British Columbia; welcome, Professor Perrin.

Ms. Rico, I will start with you. I understand you have an opening statement you wish to make.

Loly Rico, Vice-President, Canadian Council for Refugees: Good afternoon. We want to say we do not agree with the amendments. We are opposed to the amendments, and the idea is that they will not stop the root problem of trafficking.

The Bill will stop vulnerable women who have been approved a work permit here in Canada, especially when it has been approved by the Department of Human Resources and Skills Development. one of the things that we said is that there should be more focus more on the work permit, especially for exotic dancers. They should check in Canada what the purpose of the work is, who the employer is, and they should be more focused in Canada on a way to make a decision at the visa office. one of our concerns is that the refusal has to be considered by two immigration officers, but sometimes in the different embassies there are not always two people. Sometimes they have meetings or they are separated, and when that happens, how will be the decision be made?

The other concern is that we are excluding women instead of protecting them because if they do not do not receive the work permit, trafficking will not be stopped because they will be in the hands of the traffickers, and they can come in other ways.

As Canada has been one of the signatory countries of the Palermo protocols, our focus should be on the protection here in Canada and to address that issue in Canada.

The Chair: Thank you for that opening statement.

Professor Perrin, do you have an opening statement?

Benjamin Perrin, Assistant Professor, Faculty of Law, University of British Columbia, as an individual: Yes, I do. I am honoured to appear before the committee today, and I appreciate the opportunity to do so by video conference.

Let me begin by stating that I strongly support the passage of Bill C-10, the entire legislation that you are considering. I have a very brief remark or two about that, and I will focus in my opening remarks on the current piece regarding the Immigration and Refugee Protection Act amendments.

There is a widely held sentiment I have seen in my time travelling across Canada for research, being in police stations as well as in victim services agencies that assist victims of serious and violent crime including sexual exploitation and human trafficking. There is a widely held concern that the criminal justice system has left victims and their families behind, and that our laws have failed to keep pace with the realities of serious crimes, that they have not been able to have the impact that we may have expected existing provisions to have.

I also want to highlight in general terms that, with respect to the package of reforms that the committee has before it, while it is often said that crime is on the decline in Canada, as the committee is no doubt now aware, the types of crimes that are the focus of Bill C-10 are actually increasing, both crimes of child sexual exploitation, an issue I also have some expertise in relation to, and drug crime, and the perception that I and many others have that human trafficking would also fit into that list of crimes.

This package of reforms in its entirety, in my view, is about rebalancing the criminal law in a way that enhances accountability of offenders. These reforms are overdue. They are important, and they are consistent with the expectations that many Canadians have about how individuals who commit crimes should be dealt with by the criminal justice system, both in terms of punishment and in terms of rehabilitation.

Now I will turn to the provisions related to what was formerly called the "protecting vulnerable foreign nationals against trafficking abuse and exploitation act." This proposed legislation, as the committee will be aware, has been before various house committees for several years now, and the remarks that I am presenting to you today were initially prepared almost three or four years ago in response to earlier versions of this piece of legislation. I feel quite confident in making them.

There are four main reasons I support the adoption of these proposed amendments related specifically to the changes to the Immigration and Refugee Protection Act under consideration.

The first is they advance Canada's international commitments to prevent human trafficking, and I disagree with my colleague and friend who is appearing before you today on that point, and I will elaborate in a moment on that.

Second, and most important, this proposed set of amendments confronts forms of human trafficking related to deception and fraud where the foreign national either does not know or is wilfully blind to the potential of exploitation in Canada.

Third, it is a preventive approach. It has often been said in the media by critics of Bill C-10 that it is not a piece of legislation that addresses prevention. Well, these amendments are a very good example of a preventive approach to crime, which is in everyone's best interest. I wholeheartedly disagree with the idea that it is better to allow a foreign national to be brought to Canada where we have reasonable grounds to believe they will be subject to exploitation, only to hope that we can identify them after the fact and hopefully have support services for them here.

Finally, this is consistent with the federal responsibility to conduct due diligence to prevent foreign human trafficking to Canada. I would be happy to elaborate on those reasons in the questions that I know the committee has. Thank you very much.

The Chair: Thank you, Mr. Perrin. We will now proceed to questions, beginning with our deputy chair, Senator Fraser.

Senator Fraser: Thank you both very much for being here. It is important for us to hear knowledgeable views on this bill.

My question is for you, Professor Perrin. You said that this Bill would require the immigration folks to do due diligence when they are assessing applications. How would you define that? I feel that we are flying blind, looking at this bill. The Bill says that Canadian immigration officers abroad can refuse to authorize foreign nationals to come if, in the officer's opinion, public policy considerations that are specified in the instructions given by the minister justify such a refusal. We do not have those instructions. We do not know what they will say. All we know is that, according to the bill, they specify public policy considerations. There is nothing in here about doing due diligence, about reasonable grounds or how you would establish reasonable grounds for the immigration officer to refuse entry. I do not want to bring people in who are being trafficked, and on this ground I suspect that everyone would agree. I am just trying to figure out whether this Bill will do what it says that we are told it will do and how we can understand, on the plain face of it, what it is going to do. Can you comment?

Mr. Perrin: Absolutely. The structure of these amendments is consistent with how the Immigration and Refugee Protection Act is generally structured, I would submit. IRPA is a framework piece of legislation that has frequent references to both regulations and guidelines that are both promulgated by the minister and, as with these amendments, published in the Canada Gazette to ensure transparency and openness.

I considered this, senator, and it is an excellent question. Should some of this be in the act itself, or what piece should be in these publicly disclosed guidelines? Based on my research and what I have found, traffickers' tactics are constantly changing and the schemes that they deploy and use adapt rapidly. This Bill is not limited to sex trafficking. It mentions sexual exploitation, but we have a significant, growing problem with forced labour trafficking in Canada, including with male victiMs. That is an example of a phenomenon that is only recently being disclosed. Having this in guidelines rather than having to go through Parliament every time a new tactic or method is identified allows for an appropriate level of flexibility. I do support the concept that most of the meat of this set of response would be in those guidelines, and I am comfortable with that because of the fact that they will appear in the Canada Gazette both on adoption and on repeal so there will be a level of public transparency. I will be very supportive of the department consulting widely, both among its own officials as well as with the RCMP, municipal police and non-governmental organizations, to identify some of these tactics. That is the first response to your question.

More briefly, the second response, my research was a three-year study on human trafficking in Canada, primarily published in a book called Invisible Chains: Canada's Underground World of Human Trafficking. As part of that study, in addition to interviewing officials, I also obtained tens of thousands of pages through Access to Information. one case I found, which I have on my computer, and I will not elaborate unless the Senator would like this, is an example of a situation where an immigration official in Budapest was the one who had identified and determined through his due diligence the information that identified an ongoing scheme that was being involved. It is an example of where we do not actually know where the information of potential exploitation will come from. In fact, it will likely come from many avenues. This Bill takes the view that the person closest to the ground where the application is being made is the best person to be the decision maker. I think that is the right approach.

Senator Fraser: I would still like to see the instructions before we pass the bill, but I guess that will not happen. Chair, could we ask Professor Perrin to provide for the committee the case he was referring to? We do not have time to discuss it now.

The Chair: Would that be possible, professor?

Mr. Perrin: I can give you a snapshot or paragraph that I could read into evidence, if that is helpful now.

Senator Fraser: It would be faster if you could just transmit it to us.

The Chair: If you could give a citation to our clerk, that would be helpful. We would appreciate that.

Mr. Perrin: I would be happy to.

Senator Runciman: Thank you, witnesses, for appearing. Ms. Rico, I do not want to be unfair but it strikes me, from looking at your submission and hearing what you have said here briefly today, that what you are suggesting is that the government should allow our immigration process to be used as a vehicle by criminals to engage in human trafficking and the horrendous abuse that is caused by it, especially to women and children. Is that essentially what are you saying?

Ms. Rico: No, I am not saying that. I work here with victims of human trafficking, and I was a refugee from El Salvador 22 years ago. I know, from experience, the process with the visa officers. This is not only sexual exploitation. A lot of people come with a work permit as a temporary worker and can be in a situation of human trafficking. Just making a stop from the visa officer does not stop human trafficking. What we say is that HRSDC, at the time that they issue the work permit, approves that work permit because they do the labour market opinion, and that is when they have to go through the process when they approve the employers contracting these temporary workers. That is what we say. The challenge using the visa officer is that sometimes you will stop someone who is coming to work genuinely, and they will use other ways that they will come here, as we say, underground.

Senator Runciman: Professor, what I think Ms. Rico was saying is that we should not try to prevent persons at risk from being brought to Canada in the hope that we can have a 100 per cent rescue rate once they are here. You made some passing reference to that earlier. Could you comment on that?

Mr. Perrin: Absolutely. To begin with, Ms. Rico is saying that we would somehow be able to know at the stage of a labour market opinion, which of course is a very general economic view about a particular sector of the economy, which employer or employers may be going to subject their victims to trafficking. I think that is the wrong approach. The reason for that is that we see examples of human trafficking in many sectors. We have documented cases from the construction and food processing sectors, live-in caregivers and, of course, in the various outlets of the sex trade. At least, within the former category, not the sex trade, of course, you will have legitimate construction companies but some who have chosen to take advantage of our immigration system and horribly abuse people. Prosecutors can make a claim of modern-day slavery. That is why I think an individualized approach like this Bill adopts is the right one.

In terms of the point about detection, in Canada, we have very low identification and detection rates for human trafficking. Our research found that at the University of British Columbia, and the RCMP conceded to that in its March 2010 report, called Project SECLUSION, which was an extensive national criminal intelligence exercise. We absolutely cannot and should not take the approach of all we will do is help people after they have been exploited. We have to both prevent the crime and prosecute the traffickers. It is not enough simply to protect sex victims after they have been harmed. That is not just my opinion, but that is what the United Nations protocol against trafficking in persons recognizes as well. Specifically, Article 11(1) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which Canada ratified on May 13, 2002, says that states parties shall strengthen, to the extent possible, border controls as may be necessary to prevent and detect human trafficking. That is why this Bill is consistent with what we have agreed to do internationally as well.

Senator Jaffer: I welcome both of you. It is good to see both of you again. Ms. Rico, the concern that you raise is very much a concern of mine, because virtually the only way that women can come to Canada is through the live-in care program. Very rarely can women come to Canada on their own or in other categories. I am concerned that after the woman has gone through the whole process two visa officers can still decide that she needs protection.

My bigger concern is that we have not seen what instructions the minister will be giving. He has not specified what the instructions will be or how they will be stated. He says they will be published later. My concern is that Parliament will have no oversight of the minister's instructions.

Will you please comment on that?

Ms. Rico: This is also the concern of the Canadian Council for Refugees. We have not seen the instructions or any guidelines, nor that there will be any consultation by the minister. Our main concern is that this deals with women, who are the most vulnerable people.

I understand that we need to prevent human trafficking, but that is not the way to do so. This is closing the door more and more for people who want to come, for example through the live-in caregiver program. The Canadian Council for Refugees has a proposed amendment to the Immigration and Refugee Protection Act that would provide more protection for female victims of human trafficking. It would allow them to stay in Canada and be protected.

Without seeing the regulations and the instructions, we do not know how visa officers will make their decisions. Who will provide them the information? Will it be a subjective decision by them that this is not possible?

We need to look at the root causes. one of the challenges that we have with temporary workers, even in the live-in caregiver program, is that they come to work with a specific employer. They do not come with an open work permit. If they had an open work permit and found themselves in a situation of exploitation, they could make a complaint and change jobs. This Bill will not stop human trafficking. It will exclude people who want to come to work here in order to sustain their families overseas.

Senator Jaffer: Professor Perrin, you have done much research. Do you know how many women are trafficked into Canada through the work permit process?

Mr. Perrin: It is not possible to answer that question due to lack of detection. However, we do know that people have been trafficked through the work permit system. In response to inquiries for our study, Citizenship and Immigration Canada stated that legitimate work visas have been used by traffickers to bring victims into Canada.

Senator Jaffer: Did I understand you correctly to say earlier that you had come across one case?

Mr. Perrin: That was an example of a case. There is more than that.

Senator Jaffer: How many cases have you come across?

Mr. Perrin: I have not tabulated that figure.

The Chair: Professor Perrin, can you comment on the question posed by Senator Jaffer about the minister's instructions as they relate to public policy considerations?

Mr. Perrin: Thank you for the opportunity, chair. I am referring to clause 206 of Bill C-10, which would create section 30(1.4) of the Immigration and Refugee Protection Act. It reads as follows, in reference to these instructions:

The instructions shall prescribe public policy considerations that aim to protect foreign nationals who are at risk of being subjected to humiliating or degrading treatment, including sexual exploitation.

It is not the case that the Bill says only that instructions will follow. The proposed legislation does more than that. It clearly sets out that there will be public policy considerations, which term has a particular meaning within the Immigration and Refugee Protection Act. It is not the case that the Minister of Immigration could use these to say, for example, that anyone who likes the colour blue could not immigrate to Canada. This is an example of a legislative framework that provides for specification.

This Bill goes further than only speaking of public policy, which includes things like national security, health and safety, and criminality. It specifies that those considerations must be directed toward protection of foreign nationals. This is not some anti-migration scheme being contemplated. This government has increased immigration more than any other in the past.

Furthermore, it is focused on risk prevention, and that is specifically related to humiliating or degrading treatment, which suggests a very high threshold of a very particular form of problematic conduct.

Senator Lang: Mr. Perrin, in the remarks you gave us, in reference to the safe streets and communities act you state:

There is a widely held sentiment that Canada's criminal justice process has left victims and their families behind, and that our laws have failed to keep pace with the reality of serious crimes, including terrorism, organized drug crime, human trafficking and predatory pedophiles. This is not merely a sentiment but, in many cases, a reality.

I would like to hear you expand on why you make that statement and what experience you have had to justify it.

Mr. Perrin: I first started working on issues of domestic violence and abuse when I was a young boy. As a teenager I volunteered my time at a centre for abused women in Calgary. Twelve years ago, I founded an organization called The Future Group, which is a non-governmental organization that confronts issues like human trafficking and other forms of serious abuse against children.

As a professor of law for the last four and a half years, my focus has been on issues of child sexual exploitation and human trafficking. Through that, as I indicated earlier, I have travelled across the country visiting recovery centres. I have met 14-year-old Aboriginal girls in Winnipeg recovery centres who are close friends of the missing and the murdered. I have shared meals with them. I have donated funding from the sale of the book I mentioned to support two of those young women when they became 18. I have met with them to talk about how they are doing. one is doing very well and one is doing very poorly. My experience has been very interesting personally as well as in terms of my research.

I am told repeatedly by police and victim service workers that our current laws have not been able to keep pace. In many cases, victims are reluctant to come forward with evidence of the crimes that they suffered because many of them view things like house arrest as an adult version of being sent to your room. When I give public talks and have question and answer periods, people, unprompted, raise issues about how it is that someone can be out on the street after they have been convicted of these types of crimes.

Changes that have been introduced in recent years have started to give me assurance that this is beginning to change. one change is Bill C-268, which I was involved in the formation of, which gives mandatory minimum sentences of up to five years to human traffickers of children. The committee will be pleased to know that that legislation is now being used.

We are seeing a shifting tide, but this has been a long-term problem. Things like victims of serious criminals not being given legislative rights before parole board hearing have confounded the families of victiMs. Not seeing serious jail time for the making and distribution of child pornography and the imposition of house arrest for sexually assaulting a child with a weapon or abducting them are examples that, when brought forward to me, make me conclude that the public has these concerns about our justice system.

All the examples I have just given are things that this legislation would go a long way towards addressing.

Senator Munson: Thank you, Ms. Rico, for being here. I have a brief question. In your written submission on behalf of the Canadian Council for Refugees, you use the words "condescending" and "moralistic" and you say it is demeaning for women to have a visa officer decide they should be kept out of Canada for their own protection. Who should make the decision? Someone has to make a decision.

Ms. Rico: Yes. That is why I am saying that when Human Resources and Skills Development Canada does the labour market opinion, I know they make an economical decision, but they should see what kind of job the women are coming to do. We are putting forward the example of exotic dancers. If you go to HRSDC, even here in Ontario, they have a specific office to give the labour market opinion for exotic dancers. It is a kind of job that we said is degrading. Why do we allow that kind of labour market opinion? That is when we are saying it is not the visa officer who should make the decision. The decision should be made here in Canada.

I believe one of the things we need to do to stop human trafficking is to have national legislation where we can cover the kind of jobs that the person will do, how they can be protected and how we can do the prevention. Right now we are making different changes in small pieces that will not bring protection.

I am saying that because we have been working in my office with victims of human trafficking. We do not see that many international non-citizen human trafficking victims because there is no specific legislation that will give them permanent protection, only temporary protection. When we talk moralistically, sometimes we are talking to women who are vulnerable. Some of them come under the live-in caregiver program and they are coming to work to sustain their family. It is legitimate work.

Senator Munson: How does this process start, then? Someone with the instincts of a visa officer, whomever, has to start the ball rolling and make the recommendation and start moving it through to, as you say, the decision should be made in Canada, but from my limited reading of this there has to be something, yes or no, or a vague area, from the country where that citizen is living.

Ms. Rico: I am familiar with that process. When an employer wants to hire a foreign worker who is not in Canada they have to apply for the labour market opinion in HRSDC. They have to prove that they have enough income to hire someone. However, one of the conditions is that they have to prove they have been looking for someone here in Canada who can cover that job. After they have been doing that and they cannot find a person who has that specialization, that is when they apply and they approve the labour market opinion. With that labour market opinion, the person can go and make an application for a work permit at the visa office abroad.

We are saying that we should do it here in Canada, where we can check who these employers are. Having the visa officer deciding at the end will not stop the human trafficking. If the employer is involved in trafficking, the RCMP and the police have to be involved here. As it is presented right now it is the women who will be prevented and who will be punished. It will again be the women because they may be applying for legal work, they are coming to work, but if the visa officer says, "I have a suspicion," and stops that work permit, they will not be able to come and work here in Canada. That is when we are saying that this is not the possibility. We have to start doing this from home, here, to make this process.

[Translation]

Senator Dagenais: My question is for Ms. Rico. Correct me if I am wrong, but you are saying that the Bill with the possible amendments would broaden the right of visa officers to refuse, which might encourage some organizations to operate illegally.

Have you heard of specific cases where visa refusals have forced people to do things illegally? You talked about exotic dancers and women doing domestic work.

[English]

Ms. Rico: I do not have specific cases.

I am sorry I cannot answer in French. I wish I could speak in Spanish.

one of the cases we can bring as an example that was not using the work permit is a case right now in Hamilton that is before the courts. The people were from Hungary. There were 17 Hungarian people who came in small groups as visitors and they made them claim refugee status. In that way they put them to work in construction and they were in a situation of exploitation. The RCMP is involved and now they have received some sentences and they have nine people who have received punishment.

Most come in through the work permit in a way that they will suffer human trafficking. Most of the cases come either as a visitor or the ones we know. They have been crossing the border and they start working illegally here in Canada.

[Translation]

Senator Boisvenu: I would like to thank both of our guests for their opening remarks. My question is for Professor Perrin.

The Bill will ensure that the checks will be done beforehand rather than afterwards, which I think is a very good thing. My first question has to do with changing the way the checks are done by giving more discretion to visa officers. Would this not make it easier to stop more people with criminal records from entering Canada?

And my second question has to do with the checks taking place beforehand rather than afterwards. Could this spare Canadians from having to pay for people who have blended into the general population and are staying here illegally because we did not discover their real status until after they arrived here?

Mr. Perrin: That is a very good question. I will answer your second question.

[English]

In responding first to your second question, it is absolutely advantageous to prevent this at the earliest possible stage. It is, in my view, completely indefensible to suggest that we should allow people to be brought to Canada when we believe there are grounds to suspect or to believe that they will be exploited, hoping they will be identified and incurring all the additional misery that they may suffer en route or in Canada and, as you allude to, the significant costs for providing them with assistance for recovery, if that support is even available where they are found; and then there is the process of having them either voluntarily returned to their countries or deported. It is absolutely advantageous to prevent this crime.

I find it remarkable that the Canadian Council for Refugees does not in principle support a more preventive approach that involves visa officers in the home country because CIC, Citizenship and Immigration Canada, has a global reach. Other than Foreign Affairs Canada, they are the most internationalized department. They have assets in these countries, including in countries that are known source countries for human trafficking and, as a result, are best placed to be the decision makers in these cases. They, of course, draw upon information provided to them from sources in Canada as well.

I agree with the additional point that you make about this being an approach that could benefit us in Canada. I think the information obtained through the reviews that are contemplated in this proposed legislation could work in both ways. It could either be information that comes from law enforcement investigations that provide the information to Citizenship and Immigration Canada — and I have seen evidence of that in the Access to Information reports — but it could also work in the opposite way, where schemes are identified in source countries and that information is brought through CIC back into Canada and is used to further investigations.

My final point in response to your question is that this Bill should be considered in the context of a broader response. The federal government has announced that it will bring forward a national action plan to combat human trafficking this year. That draft plan has been circulated to the provincial and territorial governments. In our province here of British Columbia, there has been one-day extensive consultation with all stakeholders that will be fed into that process.

The Chair: Professor Perrin, a question for you. If Ms. Rico would care to comment, we would appreciate any thoughts she might have.

In your opening comments, you indicated one of the reasons you support this Bill is because it would confront deception and fraud used by traffickers. Could you expand upon that? From your experience, what types of deception and fraud are you aware of that take place in the context of these foreign workers entering Canada?

Mr. Perrin: The reason I focused on deception and fraud is because that is the aspect of the types of trafficking that would be captured by this legislation. It would not be captured by an individual making a decision to come to Canada on their own. We know that there are cases of deception and fraud that have been used in a whole range of situations. I will give a few examples.

one involved a young teenage girl from the Caribbean who came to Canada believing she would be working as a babysitter. She came on a visitor visa in that case and then was both forced to provide domestic servitude-type activities and sexually abused by the man of the house for extended periods of time. In our research, we also interviewed police officers, including the Calgary police department vice unit, which even in their own investigations that are focused on drug trafficking and the sex trade found that criminals were misusing legitimate work visas. An example was a furniture company identified bringing workers into Canada under the guise that they legitimately believed they would be working in upholstery and carpentry to build fine furniture in the Calgary area. However, when they were brought into the country through that method, they were subjected to sexual exploitation and other degrading and humiliating treatment.

The police are telling us that traffickers are using deception and fraud. In my view, that is the preferred approach. If someone will bring you through an airline or boat or across the land border into Canada and if you know or suspect that you are destined for a situation of severe degradation and humiliation, there is a greater chance that you are going to be detected at the border or you may attempt to seek help or resist. It is in the best interests of traffickers to bring people to our country believing that they are coming for legitimate purposes so they will not know. It is not patronizing to say to someone, "You simply do not know because you could not know." I disagree with the idea that this Bill is, somehow, patronizing at all. We are dealing with sophisticated criminal networks here that it takes police and immigration a lot of effort to uncover, so how could we expect some individual in a developing country to be able to know that they are destined for exploitation? This Bill gives the legal authority for CIC to intervene, which it currently does not have at this stage.

The Chair: Thank you, professor.

Ms. Rico, have you experienced examples of this type of deception and fraud that would be used by those involved in human trafficking, experiences you might share with us?

Ms. Rico: We have seen cases as Professor Perrin said, where they have been coming in as a visitor with a visitor visa and they were exploited here. one of the things related to the work permit is that the Minister of Citizenship, Immigration and Multiculturalism made changes in the regulations on the temporary work permit, which were implemented in April 2011. This penalized someone to pay to find a job. For example, with the live-in caregiver, it is the employer who has to pay all the agencies in a way so that they can recruit employees. I believe this is something that, if implemented, will prevent human trafficking a bit.

That is one of the ways we can do it. We are still saying that it is not the solution or the prevention, however, because they can come here with a work permit. As Professor Perrin was saying, and this has been my experience, traffickers use different ways. Even if they get the work permit and they come here, if the purpose is to humiliate or degrade the person, they will do it.

one of the things that we should do — and I have not seen this at the embassy that I have been going to in Guatemala — is awareness about human trafficking at the embassies. There is a way we can do it. For example, I have experience with the region of Central America. All of us know about the corruption of the different countries. If you prevent that, if the visa officer were to refuse the work permit to the person, then the traffickers will use other ways to bring the person either to Canada or to another country. We are not tackling the issue. I know that Canada has been very involved in the region, providing training for officers and for the immigration officers, but the level of corruption in that region is such that you cannot stop the entrance abroad.

The Chair: Would you agree that this type of human smuggling is not an imaginary problem but a real problem in our country? Would you agree with that?

Ms. Rico: I agree that they are coming. one of the challenges we have here in this country is that we do not see that many cases in the court system. The women who are in that situation are afraid to come out because there is not a permanent solution to protect them here in Canada.

Senator Fraser: Professor Perrin, this is a supplementary to my first question about the instructions. I have a couple of questions.

First, you said, and I think you are right, how can you expect someone in some Third World country to know what he or, more probably, she, is actually coming to in Canada? Good question. How can you expect the immigration officer there to know either, though? My understanding is that immigration officers abroad do not have vast investigative resources available to them. They are abroad, not here, so why would they know any better than the person making the application?

Mr. Perrin: The individual, the applicant, is not well placed to make any sort of assessment with respect to the kinds of information we are talking about. However, Citizenship and Immigration Canada, through the access to information filings that we receive through our research, is in regular contact with various law enforcement agencies in Canada. of course, through Interpol, Canada has a connection to foreign intelligence.

one of the examples that we found of this in our research was literally a list of strip clubs in the Greater Toronto Area largely that had been identified by police as known destinations for confirmed human trafficking cases. When you have that kind of information, if you have legislation like this, you are able to immediately stem the flow and prevent that. Then, of course, in Canada, you have the additional work of holding those organizations accountable beyond the individual perpetrators, the people themselves, but actually those entities.

That is the type of information that comes up. In my mind, when those visa officers have this sort of information, they should be entitled in law to act upon it, subject to review by a second officer.

Senator Fraser: My second question has to do with this phrase "humiliating or degrading treatment." It would seem to me that humiliation and degradation are things that lie, to some extent, in the eye of the person involved. Treatment that I might find humiliating someone two seats down might not, similarly degrading. All we good, middle-class folks tend to think that anything remotely involved in the sex trade is, by definition, humiliating and degrading, but we know there are people involved in the sex trade who say they are not humiliated or degraded. I may not agree with them, but it is their life.

It seems to me you are asking the immigration officers to make a judgment that, in a way, they cannot: Is this person in fact going to feel humiliated or degraded? Would it not be preferable to revamp the system rather more dramatically than this Bill is proposing to ensure that the person who is making the application to come here actually knows what they are coming to? Are they coming actually to be a babysitter? Are they coming to be an exotic dancer, and does that mean what we used to call stripping or does it include what is euphemistically called lap dancing, or does it include work in a textile factory? I do not know.

If we had a more elaborate system of specifying what these persons are coming to, and of follow-up, of protection once they get here, would that not in the end be more effective than simply saying that if we think they are going to be humiliated, we will not let them come?

Mr. Perrin: I think the starting point of viewing this as a subjective exercise I am not as concerned with as you are, senator. I think the words "humiliating and degrading treatment" in here, when they are coupled with a reference to public policy considerations and a non-exhaustive example of sexual exploitation, will be, as all legislation that you are considering, subject to interpretation.

As I suggested in my earlier remarks, these set the bar very high. "Degradation" suggests to me, and "humiliating" together, humiliating and degrading treatment —

Senator Fraser: It is "or."

Mr. Perrin: Thank you, "or" — both of those terms suggest something that is tainted with illegality. It suggests to me that legal work that is permitted and authorized in Canada could not be said to be humiliating or degrading. I think that is a reasonable interpretation, and certainly what I take this to mean.

Really what this Bill is designed to do, as it suggests, is prevention. It is designed to ensure that people are not subjected to humiliating or degrading treatment, which would fall beyond the scope of what we would ordinarily authorize people to come to Canada to do. This is providing a moment of intervention, a moment of pause, to assess whether what the person has actually come to Canada to do is what Canada has authorized them to do, not, as you have put the question, what they would like to do.

Senator Fraser: I am not sure that is quite what I said.

Are you aware of — and if so, can you give us the references to — any jurisprudence that establishes what "humiliating" or "degrading" means in law?

Mr. Perrin: I have not done any research into that question, so I cannot provide you with any sort of citations. Even if I had, the way that the Supreme Court of Canada requires the Immigration and Refugee Protection Act to be interpreted is that simply using this word in one context in another act or section of the act cannot be imported wholesale anyway, so that information would not be helpful to the committee.

This legislation will be interpreted by the court in its own right, based on the purpose of Parliament in adopting it, and transcripts from committees like this will no doubt be used to derive that purpose, which, the government has been very clear, and I agree with them, is a preventive one. The term should be interpreted in that way.

Senator Runciman: I was going to ask you about the national action plan, but you have already referenced that. You said strip clubs in the Toronto area were a major problem. If "exotic dancer" were removed from the approved job list, how helpful would that be? Is that appropriate?

Mr. Perrin: My understanding is that the federal government, some years ago, removed the blanket labour market opinion, which had a significant and dramatic effect. Once the so-called exotic dancer visa, which was under that previous blanket opinion, was removed, the number of foreign nationals being brought to Canada was reduced to a small handful on an annual basis. The history of that is not before the committee, but essentially it was recognized that the vast majority were coming from Romania, and there were significant concerns of exploitation. That was a positive step being made.

The removal of the "exotic dancer" job category, in my opinion, would be an appropriate step to take. That is not what is proposed in this legislation, but that is something I would certainly support, because exotic dancers do not do that. What police tell me they do and what the cases demonstrate is that so-called strip clubs are really the fronts for sex acts that take place in the back room or other venues, and that they are much like walking by a department store's window. That is what you see. That is the advertisement, and where the real money is made is in the illegal purchase and sale of sex and bawdy houses and that sort of thing.

Senator Runciman: I want to ask you a quick question, since we have a law professor from British Columbia here. You talked about mandatory minimum penalties. We had a witness earlier, an RCMP officer, talking about drug cases and individuals charged in Nova Scotia, where he was stationed at the time, applying to have their cases transferred to British Columbia because of the leniency of the courts. We know there are significant problems in the illegal drug sector in British Columbia. Could you talk about, from your perspective as a law professor, how you view the mandatory minimum penalties as they relate to the challenges facing the country and perhaps, more significantly, British Columbia, with respect to this issue?

Mr. Perrin: Certainly British Columbia has become a global exporter of illegal narcotics, and that has brought with it the involvement of organized crime. In my research on Bill C-10, I came across an excellent report that was already made to this committee earlier by Len Garis, the fire chief of the city of Surrey, British Columbia. It is dated November 4, 2009, and it is entitled Combating Canada's Marijuana Grow Industry: Stronger Penalties and Other Deterrents. It was submitted to the Standing Senate Committee on Legal and Constitutional Affairs on what was then called Bill C-15.

I am referring to that because I agree with Mr. Garis's assessment. He cites extensive research that shows that even in what is considered to be a less serious illegal narcotic, and certainly the narcotic that is frequently cited in the media with respect to the debate on Bill C-10, very few individuals ended up actually imprisoned. A study cited in this report on page 3 says:

. . . from 1997 to 2003, an average of 16% of those convicted in B.C. marijuana cultivation cases were imprisoned. The percentage of convicted growers sent to jail dropped steadily each year, from 19% in 1997 to 10% in 2003.

He demonstrates as well that these are not mom-and-pop operations; these are organized crime. The Organized Crime Agency of British Columbia estimates that 85 per cent of our province's marijuana trade is run by organized crime, and they are also involved in illegal weapons smuggling; cocaine; ecstasy, also known as MDMA; and illegal tobacco smuggling.

Most of the illegal marijuana cultivation in Canada is destined for the United States, up to 80 per cent of it, according to this report, so we have serious transborder criminal issues as well.

The punishment and separation from society of those who are members of organized crime, who are cultivating illegal narcotics and fuelling violence in our communities has to be addressed. I was astounded when I heard reports when we were in our peak of the weapons violence problem in Vancouver. I would be driving home in one could say very nice areas of town keeping track of where these public shootings were. We hear of fine restaurants where gang members go in and execute other gang members.

I have to tell you as a father, as a husband, I keep track of this information, and I cannot just stay out of that part of town now in Vancouver because any restaurant on any street corner is a place where we could see violent crime with illegal weapons erupt, and the information you hear through the media and police reports is this is tied to control over the drug trade.

Do these people who cultivate this need to be imprisoned? Absolutely they do, and it is not happening in any significant number, as the research shows.

Senator Lang: I know we are coming to a conclusion here, but if I could just follow up with the mandatory minimum sentences and the schedule that you are obviously very familiar with. We had testimony earlier last week in our hearings where at least one witness stated that they felt that in some cases the minimums were not severe enough for the nature of the offence, for example in the question of sexual predators, in the question of trafficking.

The position was put forward that if the Canadian public knew more about this they would probably in some cases be asking for more of a sentence than what is being put forward in the legislation. Do you have any comments on that?

Mr. Perrin: I do agree with the need for stronger minimums for child sexual exploitation offences. one of the recommendations that many people have made and that I support is amendments to the Criminal Code to change the term "child pornography" to instead refer to "child sexual abuse imagery." When the committee has an opportunity to speak with officers who work on these files, what you will hear, without even ever being exposed to any of the images through those police training education exercises, just by having those images described to you, the images are seared in your mind's eye.

We are not talking about individuals who are close in age to 18. Some of the cases that are being prosecuted and where the police are attempting to identify the victims involve intrusive sexual assaults against infants, as an example. That is the kind of cases that the police are coming up against. To call that child pornography is at minimum to mislabel it and at worst to completely undermine the gravity of what is happening.

I personally am very supportive of stiffer sentences with respect to child sexual exploitation. I think more work could be done on that issue more broadly, but what we have here is at least the beginning, and so I am very supportive of a number of the sentencing changes here, for example, where you now have a minimum six months' imprisonment for making and distributing what is called child pornography, up from 90 days. I agree that could be much more, but I am supportive of the direction in which this legislation is heading.

The Chair: We have Ms. Rico and Professor Perrin for about another 15 minutes. On second round I have next Senator Jaffer and Senator Boisvenu, and I have a question as well.

Senator Jaffer: Ms. Rico, I want to clarify something you said. You said you had the experience of someone being trafficked for visitors visas, but have you ever had the experience of someone being trafficked for work permits under the live-in care program?

Ms. Rico: No.

Senator Jaffer: Professor Perrin, I wanted to clarify some things that you said. I know how much work you have done on trafficking, and we certainly appreciate the work you have done, but in your experience, the same question I asked of Ms. Rico, have you ever, and you have done extensive research on trafficking, in all your research seen people being trafficked under the live-in care program? That is my first question.

Mr. Perrin: Yes, I have. We have documented cases of that sort of exploitation. The sort of research that I do is to interview people who have had experience working with these cases; so for example, I had the pleasure of interviewing Ms. Rico about the cases of human trafficking that she is familiar with in her part of the country, but I also travelled to approximately eight to ten other cities doing the same thing with other organizations, so we did document cases of human trafficking.

Senator Jaffer: I am just talking about the live-in care program. This is a program that assists us in helping to look after our children and our seniors.

Mr. Perrin: That is right. The Philippines certainly came up in a number of cases, and that is not surprising, I would say, given the proportion of Philippine nationals who participate in the live-in caregiver program. Certainly organizations in B.C., for example the West Coast Domestic Workers' Association and some of the other immigrant service agencies, have raised repeated concerns about exploitation within that program itself but of course recognizing the importance of that program to both the families of those workers who are not mistreated and to the Philippine economy. The expatriate labour force is a huge portion of their GDP globally.

Senator Jaffer: I want to clarify one more. You stated that you very generously supported two girls in Winnipeg. Those were Canadian girls; am I correct?

Mr. Perrin: That is right, yes.

[Translation]

Senator Boisvenu: Professor Perrin, correct me if I am wrong, but I think Canada was one of the first countries to publish statistics on human trafficking crimes. Earlier you said that those types of crimes are on the rise. As Canadians, we do not want to see newcomers exploited. But some jobs are performed in environments that are more at risk. For example, exotic dancers find themselves in environments at higher risk than dishwashers or servers. Is it not true that those activities are more controlled by organized crime and that is really where we see a weakness in the current system?

The other part of my question is: will this Bill help exploited women in situations where those responsible have fallen through the cracks of the new regulations? Will this legislation enable more victims to report cases of abuse?

Mr. Perrin: Research was conducted on the sectors most prone to human trafficking. Research published by the International Labour Organization has indicated three specific features that describe the industry sectors where we are likely to see this.

[English]

In English it is the three Ds — dirty, difficult, and dangerous.

[Translation]

These three elements characterize the industries where human trafficking is most likely to occur. Some industries are more likely to present these three elements. You talked about sexual exploitation. The construction and hospitality industries, domestic workers and agriculture are other areas likely to give rise to these three elements that foster human trafficking.

You mentioned the problem of the trafficking of Canadian citizens, particularly young women who are being sexually exploited. This is a bigger problem in Canada, which is why the federal government launched a national plan that targets human trafficking.

Senator Boisvenu: Professor Perrin, do you think that this Bill will encourage victims to speak out against abuse situations?

Mr. Perrin: Some programs are in place to protect victims of human trafficking from other countries. There is a program with temporary residence permits for victims of human trafficking that continues to improve the situation for victims from other countries.

For the most part, the assistance services that the victims need are the responsibility of the provincial and territorial governments, and some provinces continue to increase the services they provide to human trafficking victims, for example here in British Columbia, as well as in Ontario.

It is essential to have a good national response and good coordination among the NGOs, governments and police forces. This is another reason to create a national plan — not a federal plan, but a national plan — to fight human trafficking.

Senator Boisvenu: Thank you, and congratulations on your French.

Mr. Perrin: Thank you.

[English]

The Chair: I have a question that I will direct to Ms. Rico and then Professor Perrin, if you wish to comment.

one other aspect of Bill C-10 — and it is included in clause 205 — would amend the objectives of the Immigration and Refugee Protection Act by referring to what the objectives would be in the protection of public health and safety. It is my understanding that the purpose of that amendment is to protect public health and safety and maintain the security of Canadian society in immigration matters.

I am wondering if you have any comments to make about the public health and safety aspect contained in the bill.

Ms. Rico: I do not think the amendments will cover the public health and safety of the country. The act already in place contains different aspects that the Minister of Immigration has applied in the last two years to try to protect Canada. one aspect, for example, is under the Safe Third Country Agreement that they have removed wherein in order for people to be able to claim refugee status at a port of entry, they must have a relative in the country.

The other aspect is that the Canada Border Services Agency, when you arrive in Canada by plane, thoroughly checks your passport and whether you have all the relevant paperwork. I do not think having a visa officer checking immigrants' work permits will really make a big difference in public safety.

The Chair: Professor Perrin, do you have any comment?

Mr. Perrin: I am not certain, Mr. Chair, that I appreciate the nature of the amendment and the rationale behind that particular piece. I refer to the existing provision, which says "to protect the health and safety of Canadians and to maintain the security of Canadian society." The proposed change to that would read "to protect public health and safety and to maintain the security of Canadian society."

To me, I do not see this as reflecting any major change of policy, perhaps simply to recognize public health and safety in the context of the types of serious communicable diseases that CIC deals with routinely, but that is actually a public health global issue and not really limited to Canadians. Therefore, I do not see this being a controversial change in any way at all.

The Chair: Thank you. Thank you very much, colleagues and our guests. That concludes our time with this panel. It has been very useful.

Ms. Rico, we thank you so much for being here and taking the time to come to this hearing today. Professor Perrin, it has been a pleasure to hear you from the West Coast. Both of your input has been very valuable to us and we thank you.

Mr. Perrin: Thank you very much.

The Chair: Colleagues, we will continue with our consideration of that portion of Bill C-10 that is focused on proposed amendments to the Immigration and Refugee Protection Act. We are pleased to have with us, as part of this third panel, joining us by video conference from the Wilfrid Laurier University, Associate Professor Jenna Hennebry, and I believe, although I do not see her on screen, that we also have Professor Audrey Macklin from the University of Toronto. Welcome. We are pleased to have you here.

Ms. Hennebry, I will start with you. Do you have an opening statement you wish to make to this committee?

Jenna Hennebry, Assistant Professor, Communications Studies, Wilfrid Laurier University, as an individual: Thank you very much for inviting me to come before the Senate to provide my perspective on Bill C-10 and some of the changes that are proposed. I am here in my capacity as an associate professor with the Balsillie School of International Affairs where I am also the associate director of the International Migration Research Centre. It is a centre that focuses on trying to facilitate policy-relevant research. I am glad to be here today to talk about this proposed change.

I will give you a two-second background on my research so you know where I am coming from today. I have been researching and writing in the field of international migration with a focus on Canadian and European temporary foreign worker programs for more than a decade. This research has involved quantitative surveys of 300 employers, nearly 600 temporary foreigner workers or migrant workers in agriculture, as well as the administration of a survey and qualitative interviews with live-in caregivers and international students as well. This research has also involved hundreds of detailed qualitative interviews with migrants from a range of sending countries including Mexico, Jamaica, Guatemala, the Philippines, Thailand and others, as well as with families of migrants in home countries.

The Chair: Ms. Hennebry, if you could slow down a bit, our translators are having a bit of difficulty.

Ms. Hennebry: You should see what my students have to say.

The Chair: You obviously have a lot to say, and you will get it in. If you could slow down a bit, it would be appreciated.

Ms. Hennebry: The gist of it basically was to tell you that I come at this from a lot of empirical data, qualitative and quantitative data that I have been collecting over the last decade. This type of forum does not lend itself well to presenting all of that data, obviously, but I will try to point to some things that I am concerned about, and then hopefully in discussion some of that can come out if you have particular questions. Needless to say, I am talking about interviews with hundreds of workers, surveys with workers, interviews with government officials in sending countries as well as in Canada, interviews with recruiters as well as with the International Organization for Migration, and quite a number of other NGOs and others working with migrants and supporting migrants, both in Canada and in sending countries.

This research has basically demonstrated that there are few options for lower-skilled migrants who would like to come to Canada, which is an obvious result of the points system that gives preference to the highly skilled and educated. The primary program streams of the Temporary Foreign Worker Program through which these particular migrants, the lower-skilled migrants, come to Canada are through the Seasonal Agriculture Worker Program and the pilot project for occupations requiring lower levels of formal training, which for now I will call the low-skilled pilot project.

Some of these migrants are some of the most vulnerable migrants to exploitation. My research over this period, as well as the research of many others, has shown that these migrants face particular vulnerabilities when they come to Canada in terms of potential exploitation and abuse from employers, as well as heightened health risks. The research has also shown that they have a higher propensity towards vulnerability to exploitation from recruiters, and this largely happens prior to coming into Canada.

For all of the program streams that I have been talking about here, there are policy instruments in place that are designed to protect or to make an attempt at protecting workers when they come into Canada. They do things such as assess the veracity of the job offer and ensure employer compliance through the labour market opinion process, which I will call the LMO process from now on. The problem with the LMO process is that it does not protect workers from exploitation, abuse and heightened health risks. Even recent amendments that were introduced in April 2011 and January 2012 to the Immigration and Refugee Protection Regulations did not significantly strengthen the LMO system to provide adequate protections for these workers. I can get into some of the examples around that. I am doing this to try to illustrate that, although we have policy procedures in place that are sort of aimed at trying to protect workers, they do not go far enough. Then beyond that, we have some legal frameworks in place to protect workers from exploitation prior to coming into the country or from recruiters in the process, and also those who may be in Canada as well, but both are leaving a gap with respect to regulation and protection, a gap that I do not believe will be filled by the proposed amendments to Bill C-10.

Research basically shows that the lower-skilled temporary migrant workers are fearful of loss of employment and loss of the right to work in Canada and stay in Canada and are therefore much less likely to report unsafe working conditions and abuse and are much more likely to face heightened health risks, both from employers and from recruiters. In our survey of nearly 600 migrant farm workers in Ontario, we found that over 50 per cent would work whether ill or injured because of fear of loss of employment. That is a pretty big motivator to accept just about any kind of conditions you find yourself in.

The other point is that the majority of those people we speak to send money home. Remittances are what they are here for, and their families depend on them. That dependency also makes them much more vulnerable to accepting difficult working conditions and also that heightened vulnerability with respect to recruiters.

one of the problems is how we regulate and how we enforce the regulations we have in order to protect workers. Recruitment is not something easily regulated just at the domestic level. However, there have been moves to try to do that. We have seen that happen at the provincial level. For example, Manitoba’s Worker Recruitment and Protection Act has made changes that make a difference in the recruitment process by ensuring that recruiters have been vetted to some extent by the province before employers can engage their services in order to hire workers.

That is a tangible example of how we can make a difference in terms of protecting the rights of workers and not leaving them vulnerable to unscrupulous recruiters as well as to trafficking and exploitation more generally.

We could better protect these migrants through improved policy instruments such as strengthening the LMO process. For example, recruitment could be built in to the process more stringently than it is now. Currently there are only advertising requirements of 14 days in certain occupations and 30 days in others. That is simply trying to ensure that employers have tried to hire Canadian workers. That is not doing anything to ensure the safe recruitment of foreign workers. There are really no teeth in the policy frameworks that we have to protect workers.

Changes to clauses 206 and 207 under the IRPA will effectively pass the buck even further on the responsibility of protecting migrants by shifting the burden to developing countries and to migrants themselves, the very migrants who will put up with unsafe working conditions in order to get an opportunity to work in Canada. Many of those migrants have paid thousands of dollars for this opportunity. In qualitative interviews I have done with Thai and Guatemalan workers, they have indicated they have taken out significant loans in order to be able to pay fees to recruiters for what they think will get them access into programs we have in Canada, and in some cases they have ended up not even getting a work permit.

These proposed changes would download the burden onto the migrant. Instead of addressing exploitation in the system, particularly in the Temporary Foreign Worker Program, the changes will punish migrants by denying them access to visas, which will arguably do more to heighten their vulnerability rather than make a tangible difference to protect them.

It is not clear in section 31.4, which outlines the ministerial instructions, to what extent we will be looking at public policy considerations that determine whether a work permit can be refused. To what extent will these considerations go beyond issues of trafficking or the protection of migrants? How will we ensure that that is the case?

If the federal government is truly concerned about exploitation of these workers, these proposed changes are either too powerful or meaningless or problematic if it means that visa officers have the discretion to deny visas to migrant workers who are vulnerable to exploitation. Research has demonstrated that farm workers, for example, are a group of lower-skilled migrants who are particularly vulnerable to exploitation, both in the recruitment process and from employers in Canada. Does this mean that visa officers will be denying them visas when they come to meet with these officers?

Furthermore, what are the criteria and guidelines being used to determine that these migrants are indeed vulnerable to exploitation? What evidence will be used? What training will these visa officers have to determine that these migrants are vulnerable? If they are determined to be vulnerable, how is simply not letting them into the country doing anything to slow the process of the violation of human rights for migrants?

The Chair: Professor Hennebry, I am sorry to interrupt you, but if you could abbreviate your opening comments a bit, it would be appreciated. We were expecting opening comments in the range of five minutes.

Ms. Hennebry: Have I exceeded that?

The Chair: Slightly. This is all important, but if you could keep that in mind, because we want to allow as much time as possible for questions, and of course we want to hear Professor Macklin's opening statement as well.

Ms. Hennebry: of course. I have finished except to say that we need more willingness to regulate recruitment and enforce compliance at the federal level. I do not think that the changes proposed do much for migrants and instead simply remove responsibility from the state.

The Chair: Thank you very much for that, Ms. Hennebry.

Please proceed, Professor Macklin.

Audrey Macklin, Professor of Law, University of Toronto, as an individual: Thank you very much. I appreciate the opportunity to address you.

The provision with respect to the discretion of visa officers to deny work permits in the face of an assessed risk of exploitation is concerning for two reasons. First, as a matter of policy, will this advance the goal of protecting vulnerable workers from exploitation? I will not summarize what Professor Hennebry has articulately laid out as the limitations on a policy like this. Instead, I will summarize what I take to be the animating idea behind this grant of discretion to deny admission to someone for fear that they will be exploited, by a Canadian employer presumably.

The idea seems to be that we can protect foreign workers from exploitation by Canadian employers, or Canadian or foreign recruiters, or Canadian customers by denying those foreign workers entry into Canada. By analogy, it is similar to the idea that we can protect women from sexual harassment in the workplace by forcing them to stay home. This seems like an odd way of pursuing the objective of protecting people from exploitation.

In addition is the concern expressed by Professor Hennebry that visa officers are ill-equipped to make that kind of assessment. My view is that this provision probably resides primarily in the realm of symbolic politics, that is, it gives the appearance of concern about exploitation of foreign workers but in fact will do very little. I expect it will be rarely invoked and, in the event, will do very little to protect those who are admitted to Canada from exploitation. The tool is only a tool of barring entry.

The other concern that I want to address is more specifically legal and democratic, if you will. This provision, on the one hand, grants a visa officer discretion under law to deny entry to someone for fear of exploitation. At the same time, it makes this discretion subject to mandatory ministerial instructions. Ministerial instructions are a peculiar instrument. They seem not to constitute law in the way that is conventionally understood. They do not exist under the Statutory Instruments Act; they are specifically exempted from it. They appear to give the minister the authority to make law by decree. This is unusual and exceptional but is making more frequent appearance in the Immigration and Refugee Protection Act. This seems to allow the minister, by decree, to set out criteria by which a visa officer shall exercise discretion to refuse entry, but those criteria are not available to us.

Here we are trying to assess a law that contains a giant loophole for ministerial instructions that we cannot see or comment on. Here I think is evidence of the democratic deficit of ministerial instructions.

By contrast, for example, laws have to be subject to a process of publicity and debate prior to passage into law. Similarly, when Parliament delegates its authority to the Governor-in-Council — cabinet — to make regulations, those regulations also must follow a certain set of practices that ensure publicity and an opportunity to comment before they are passed into law. For example, under the Immigration and Refugee Protection Act, regulations have to be subject to notice, an opportunity for input and a regulatory impact statement that accompanies the proposed regulation. As you can see, none of that is available to us with respect to ministerial instructions.

This democratic deficit, I hope you can appreciate, should be of concern, quite apart from what you make of this particular provision. Whether you think it is good or bad, the idea of permitting the minister to make law by decree that is opaque, and yet which we are expected here to authorize, is problematic.

In furthering this concern, which I think is arising regarding ministerial authority, I would like to draw your attention to another aspect of Bill C-10 that I think is also illustrative of that, and that is the Transfer of Offenders Act. Here again, using the device of ministerial discretion, we see a grant of wide, unaccountable and subjective discretion to a minister to exercise authority under the act to approve or deny a request for prisoner transfer, again with no statutory or even regulatory articulation of those criteria, much less a mechanism of accountability.

I hope you can appreciate that, in addition to the concern that Professor Hennebry has adequately laid out, as a means of protecting foreign workers from exploitation this policy is useless and probably only resides in the realm of symbolic politics. Quite apart from that, the mechanism by which Parliament seeks to incorporate this policy into law in turn grants ministerial authority to create law by decree, which in some sense is inimical to our understanding of how laws get made, implemented and applied in Canada.

Senator Fraser: Thank you both, Professor Hennebry and Professor Macklin for thought-provoking presentations that are very helpful to us.

Professor Macklin, I wonder if I could pursue your point a little further about instructions. You said they are becoming more common in the immigration and refugee system. Can you give us any other examples?

Ms. Macklin: Yes. Under our Immigration and Refugee Protection Act, foreign nationals are permitted to apply to immigrate to Canada as skilled workers. Under the act and the regulations, Canadian citizens and permanent residents are entitled to apply to sponsor family members.

In creating these entitlements to apply, there is a correlative obligation on the Minister of Citizenship and Immigration to process those applications. That is what the law says. Through the device of ministerial instructions that purport to manage the prioritization of applications and timing and so on, the minister has suspended the entitlement of Canadian citizens and permanent residents to apply to sponsor parents and grandparents. That is to say the minister has not just set out a prioritization of how those applications will be processed; the minister has announced a so-called temporary pause, which amounts to an evisceration of the entitlement that is granted, under law, to citizens and permanent residents to apply to sponsor parents and grandparents and therefore the duty of the government to consider those applications.

Similarly, with respect to applications for skilled workers, the act and the regulations set out criteria and eligibility that through ministerial instructions the minister has set out 29 occupations and said that no one else who lies outside of those occupations can apply. The problem is those ministerial instructions are not law. They are being applied as if they are law, but they are not acts of Parliament; they are not delegated authorizations by Parliament to the Governor-in-Council to make regulations. They exist somewhere out there in the ether as a matter of ministerial decree, with no legal pedigree. What they do is purport to contradict and even overrule what the act and the regulations state as a matter of law.

Senator Fraser: That is fascinating. In the particular instructions that are called for under this bill, the minister's instructions, we are told, shall prescribe public policy considerations that aim to protect foreign nationals who are at risk of being subjected to humiliating or degrading treatment, including sexual exploitation. I have been trying to wrap my mind around what those words "humiliating or degrading treatment" will be taken to mean in practice. Do you have any guidance for us on that?

Ms. Macklin: No, I do not. Indeed, the fact that we do not know what these words mean, but that the minister is ostensibly being given power to create law by decree about what those words will mean and how they will apply, is precisely what we should be concerned about.

Let me just suggest that there are other alternatives for dealing with this that are conventionally understood as legally available. For example, the government could have laid out in its amendments to IRPA precisely what it means by "degrading" and "humiliating." Alternatively, Parliament could have delegated authority to cabinet, the Governor-in-Council, to make regulations that set out what is "humiliating or degrading treatment" and what "sexual exploitation" means.

Finally, it would be possible for the Department of Citizenship and Immigration to come up with guidelines to assist decision makers — visa officers — in interpreting the terms "humiliating" and "degrading." In that last case, however, guidelines are not law. They do not have the force of law. At most they can guide the interpretation of what the law means, but they cannot bind or compel. All of those options were available here. None of them was pursued. Instead, what is pursued here is the grant of an unfettered, unaccountable mandate to create law by decree.

Senator Fraser: That is particularly interesting to parliamentarians because Parliament does have the right to scrutinize and indeed overturn regulations, but not ministerial instructions. It is fascinating.

Senator Runciman: Ms. Hennebry, you talked about people who wish to come to Canada under this process and are rejected, and it heightens their vulnerability. I am wondering what you mean by that. Heightening their vulnerability in their country of origin is what you are referencing, I guess. Perhaps you could elaborate on that.

Ms. Hennebry: What I was alluding to there is particularly for the low-skilled migrant who has applied, let us say, through the low-skilled pilot project to come and work in meat-packing somewhere in Ontario; they have very few alternatives for being able to get into the country. For them, this was quite obviously something they put a lot of effort into in order to be able to come. They may have borrowed money. They have had to sacrifice a great deal already in order to get to this stage. For them to then be rejected makes them even more likely to pursue other options. These could include seeking out paths to come into Canada without proper documentation.

What I am referring to here is that when we close down more doors, all we do is put more pressure on the system. We cannot stop flows where people want and are interested in work, when there is work and work is needed, and where there is a labour shortage or a labour demand. Combined with high unemployment and poverty, you will have lots of pressures. What I am pointing to here is that we may just put more pressure on the system, making those migrants even more vulnerable to traffickers.

Senator Runciman: The intent of the legislation is to curb human trafficking. I guess I raised this with an earlier witness, that government has an obligation not to allow our immigration process to be used as a vehicle by criminals to engage in human trafficking because it impacts, especially on women and children. Do you disagree with that concept?

Ms. Hennebry: of course, I do not disagree with that. I agree wholeheartedly that the government has an obligation to do so.

Senator Runciman: Well, that is what the government is attempting to do here.

Ms. Hennebry: I do not see how simply giving a visa officer discretion to say, "You might be a vulnerable worker and therefore cannot come," will do much to stop trafficking or to stop any of these human rights violation. It will shift them around and basically mean that the government has done nothing apart from not opening its door to that particular individual.

Senator Runciman: We just heard a witness earlier, Professor Benjamin Perrin — and this deals with our second witness today and her concerns with respect to ministerial instructions — who indicated to us that they were going to be based on public policy considerations. I believe he said that that is the best, maybe the only way to tackle this problem because it allows the immigration system to adapt to changing circumstances, and ministerial instructions will be published in the Canada Gazette, which is how we will know whether the considerations will be related to the factors they are supposed to be related to.

I am having trouble understanding why you think that is a bad idea. That was for our second witness.

Ms. Macklin: The problem is that there is no advance notice of those ministerial instructions. They are published after the fact in the Canada Gazette. There no notice, no opportunity to comment on them, and no accountability to the requirement of a regulatory impact assessment. So, sure, as any decree would be, it will be announced, but there is no democratic mechanism underlying it. I would venture to say that it is on tenuous grounds in terms of its legality.

The idea that one cannot undertake a transparent process in order to issue guidelines or regulations or law on the public policy considerations at play, I think, is simply not tenable. We do it all the time.

Senator Runciman: I think the Canada Gazette is pretty transparent.

Ms. Macklin: But it is only after the fact.

Senator Baker: Thank you to the witnesses for the excellent job they have done here today. My question is to Ms. Macklin. Before I do question her, I have to congratulate her on her great contribution, I believe, to Canadian law in that she is quoted extensively in our courts and the judges usually quote her with approval. I want to congratulate her for that. Keep up the work; keep up that exuberance that you have.

Getting back to the mandatory minister's instructions, the law by decree, as you put it, Ms. Macklin, first, is there a privative clause in this act?

Ms. Macklin: The Immigration and Refugee Protection Act does not have a privative clause. What it does have, however, is a requirement that if one seeks judicial review of a decision made under this act, one needs leave of the Federal Court in advance. If you will, this is a mirror image of a privative clause. A privative clause is Parliament's attempt to preclude the courts from reviewing decisions by administrative decision makers. This grants the courts the power to gate-keep by imposing a requirement that a judge first says this is a case worth hearing, and only if leave is granted can there be judicial review of that decision.

Senator Baker: If leave were granted, what degree of deference is shown to the decision maker in this particular enactment?

Ms. Macklin: The Supreme Court of Canada's jurisprudence about deference has been evolving in recent years. Following the Dunsmuir decision, it is probably fair to say that the standard of review that is level of deference shown to decisions made about the interpretation of the statute in the regulations, or the exercise of discretion under the act or the regulations, should be assessed against a standard of reasonableness. That is relatively deferential.

Having said that, however, the Supreme Court of Canada's jurisprudence also suggests that what "reasonableness" requires will vary according to the kind of decision it is, who the decision maker is, whether it is a question of law, whether it is a matter of discretion.

I guess the short answer is that most decisions under the statute and the regulations will be assessed against a standard of reasonableness, but there appears to be an emerging continuum, if you will, within that term "reasonableness" where some kinds of decisions will still be scrutinized more closely than others. It is difficult for me to say with any greater precision than that how a court will approach particular decisions made under the statute and the regulations.

Senator Baker: It is at the point where if, in fact, an appeal is allowed to the court on application of the applicant, we will learn about the regulations or the instructions given by the minister. At that time, when that is heard, those instructions will be judged on the basis of reasonableness to make up the decision of the official, which decision could be under review at that time. Am I correct in that?

Ms. Macklin: The question I expect that would arise, if a decision were challenged, would be something like this: Did the visa officer exercise his or her discretion reasonably, taking into account the requirement to apply the ministerial instructions? What that question does not come to is what is the legal status of those ministerial instructions. That is the problem that I am hoping to raise with you and that I hope is independent of your evaluation of the merits of this particular provision.

In other words, an ordinary judicial review of the exercise of discretion under this provision will not get at the problem that I am identifying, which is the legal pedigree of those instructions. Certainly, that could be a subject of legal challenge as well.

Senator Baker: Or the reasonableness of those instructions. Is that what you are saying?

Ms. Macklin: No, the legality of those instructions. Not whether it is a reasonable instruction, not whether the minister reasonably interpreted what "humiliating" and "degrading" treatment might mean.

Are these instructions lawful? The concern here is that something called "instructions" is purporting to override a lawful grant of discretion. It is not clear where the legal authority resides for something called a ministerial instruction to override what is clearly a matter of law in the Immigration and Refugee Protection Act.

At the top of our little hierarchy of law you have the Charter and the Constitution. All law has to conform to those. Then have you statutes. All statutes have to also conform to the Charter and so on, and then there are statutes and regulations. All regulations have to conform and cannot exceed the power granted by the statutes that authorize them. Regulations are ultra vires, outside the authority of the Governor-in-Council, if they exceed the mandate given by the statute.

What we have here are ministerial instructions, which, as I read them, purport to trump the Immigration and Refugee Protection Act's grant of discretion. It is not clear to me that there is authority in the minister to make a decree that trumps a discretion granted under the act. That is the kind of pedigree problem I am trying to advert to.

Senator Jaffer: Thank you for your presentations. I found them very useful.

For years I have worked with live-in caregivers and migrant workers, especially Mexican migrant workers. I can see that clause 206 of Bill C-10, proposed subsection (1.4), sets out that one is subjected to humiliating or degrading treatment.

You both have experience in this area. What I find difficult is how an immigration officer will know that a prospective person who will be getting a work permit will be treated in a humiliating and degrading way, except if there is a history of the employer treating his farm workers, for example, in that way. In the end, who gets punished? The person who is applying. I would like you to comment on that.

While I am asking you to comment on this section, if I have time I have another question of you, and I am really struggling with this. I have read clause 206 proposed subsection (1.4) a number of times and the wording "humiliating or degrading treatment, including sexual exploitation." Does that mean that the degrading and humiliating treatment includes sexual exploitation, or is that in addition? I would like your comments on that.

Ms. Hennebry: Thank you, Senator Jaffer, for your valuable concern.

I also agree that there is some concern regarding being able to leave it to a visa officer to determine whether something is humiliating or degrading treatment.

The other thing, when I was reading through this, is that I was wondering whether we are talking about the worker or the individual being vulnerable to humiliating and degrading treatment once they come into Canada, or is it that it has been in the process of procuring a work visa, and how are we going to differentiate between the two? What mechanisms are already in place that are supposed to be doing this?

In fact, we are seeing the mechanisms that are in place now, for example, the LMO process, and we also have labour contacts. Neither of those seems to have the teeth to be able to do anything about any of the humiliating and degrading types of treatment that we have seen, and we have evidence, with respect to migrant workers certainly in agricultural, of live-in caregivers, and also among exotic dancers, for example.

How do we say that this new discretionary power to the visa officer, who will be given some ministerial interpretation of what humiliating and degrading is, will actually get at any of those things? This is much more about needing to have a twofold approach that has some teeth in migration management, and that means teeth in the actual policy framework and the program regulations and enforcement. We do not have that in our temporary farm worker program.

The only enforcement that really ends up existing, the only consequences for an employer, either come from something that is complaints-based, when a worker or individual is able to lodge a legal complaint, and obviously they are quite vulnerable and not often in a situation to do that, or it comes from the LMO process. That simply means a slap on the wrist and you will not be permitted to have foreign workers for two years following.

What does that do in terms of actually stopping these kinds of problematic treatments? Not very much. Then we also can think about new legal frameworks to get at these problems that I think are quite different. I think that, simply, this will not solve either of them, whether we are looking at issues of trafficking or abuse and exploitation from employers. This is not getting at either.

Ms. Macklin: I will add a few words to what Professor Hennebry said. Senator Jaffer, you are familiar with the debate at the international level regarding trafficking in women, wherein some take the view, the Coalition Against Trafficking in Women, that all sex work is intrinsically exploitative, versus those who take the view that sex work is not necessarily intrinsically exploitive but can be done in conditions that are exploitative.

Which interpretation one has of the relationship of sex work to exploitation could have significant implications for the application of discretion here. If sexual exploitation is taken to mean sex work, period, then presumably anyone entering Canada to do what is described as sex work could be caught by this and excluded. Alternatively, if there is a view that not all sex work is exploitative but there are conditions that would render it exploitative, that would lead to a different conclusion. Again, we have no way of knowing that because there is nothing in the act or the regulations, and we have not seen any ministerial instructions that assist in interpreting that.

It is also important to return to what this discretion is telling us about exploitation and the way to prevent it. People who are the subject of concern of this provision enter Canada and, if they are vulnerable to exploitation, it is from Canadian employers, Canadian and perhaps foreign recruiters and Canadian customers. What this provision is saying is we cannot do anything. We, the Government of Canada, are absolutely unable or unwilling to do anything to respond to exploitative practices by Canadian employers, Canadian customers and Canadian recruiters. We cannot do anything about that, we are unwilling to do anything about that, so what we will do is just keep these people out. That is an interesting and perhaps somewhat dispiriting perspective that this provision seems to be conveying about the ability of the Government of Canada to use its regulatory authority to assure safe, non-exploitative rights respecting working and occupational health and safety conditions for all workers — not just foreign workers but all workers.

[Translation]

Senator Dagenais: My question is for Ms. Macklin. In your presentation, you said that more restrictive legislation will make workers more vulnerable. Do you not think rather that the amendments to the legislation will prevent workers from being victims of abuse or having their money extorted from them by criminal organizations that may profit from flaws in the current legislation?

[English]

Ms. Macklin: If the concern is that people are being extorted and abused by Canadian employers or Canadian customers or Canadian recruiters, it is unclear to me why this would target then the worker and not the ones who are committing the abuse. Yes, keeping women at home and out of the workplace I suppose protects them from sexual harassment in the workplace, but is that really the response we would have to a concern about sexual harassment?

Similarly, we are concerned about abuse and exploitation, and this abuse is not just happening from foreign recruiters in foreign countries. The premise of trafficking is that the abuse is happening in Canada from Canadians — employers, customers, recruiters, middle people and others. Surely it makes more sense to go after the wrongdoers than the victims, and I am surprised and disappointed that the government considers itself unable to do that.

Senator Cowan: Back to this issue about ministerial instructions, when Professor Perrin was with us by video conference earlier he supported the government's initiative in this regard and said that proceeding by way of instructions rather than regulations was necessary in order to give the necessary flexibility to the system to deal with the rapidly developing schemes of those who are exploiting workers. Can you respond to that defence of the use of instructions rather than regulations?

Ms. Macklin: I presume the question is directed at me?

Senator Cowan: Yes, it is.

Ms. Macklin: I would suggest that there is nothing unique about the subject of these concerns that requires circumvention of conventional democratic processes; and, indeed, ministerial instructions, as I pointed out, are cropping up all over the Immigration and Refugee Protection Act.

I appreciate, as does anyone who works in this field, the need for flexibility. That is the reason for granting regulatory authority to cabinet. The Immigration and Refugee Protection Act has gone from being a fairly detailed set of laws to skeletal legislation that grants the Governor-in-Council enormous regulatory authority to give meaning, to put flesh on the bones of the act. There is no empirical basis for the argument that somehow this situation is so unique or urgent or volatile that ordinary democratic processes are inadequate to deal with it. The claims of flexibility can certainly be managed in other ways.

Senator Cowan: By means of regulations.

Ms. Macklin: By means of regulations. The immigration manual is a voluminous set of guidelines and instructions that are designed to assist in the interpretation of law. They do not have the force of law so they cannot fetter the discretion or override the laws or regulations that bind them, but they certainly are able to be responsive in ways that count. In other words, I would resist a bald claim that there is something unique about this or any of the other things about which ministerial instructions are directed that demand a circumvention of democratic accountability.

Senator Frum: Professor Macklin, to continue with your analogy about sexual harassment, you say if you kept women at home they would be protected from sexual harassment. That is what this legislation is trying to do. It is trying to say that to protect women from sexual slavery in Canada it is better to keep them at home and not let them come into this country. That is exactly what we are trying to do. Because this is trying to address issues of sexual slavery, human trafficking, the argument here is it is because of the danger of ministerial instructions. The danger of those instructions outweighs the need to prevent sexual slavery being perpetrated in Canada and fraud being committed against workers who otherwise would not be allowed into Canada. They are only sneaking into the system because they are being fraudulently brought in under the guise of one type of work in order to perform a completely other type of work.

Therefore, my question actually is about the fear of ministerial instructions and where else you see this. What other evidence do we have of this democratic deficit when you rely on ministerial instructions to prevent serious crimes from taking place? Where else do you see a democratic deficit with ministerial instructions? Can you point to other problems you have seen with these kinds of instructions?

Ms. Macklin: Thank you. I earlier gave the examples of the so-called pause on the acceptance of applications for sponsorship of parents and grandparents, and I also gave the example of ministerial instructions being used to restrict the eligibility of those who can apply for the skilled worker program in ways that are not evident on the face of the legislation or the regulations. Those are two examples of the way ministerial instructions are being used in effect to overrule what is law or regulation properly passed without, as I said, the appropriate legal pedigree attached to those instructions.

To go back to your query about protecting women from sexual slavery and so on, there are two points to make. One, it is true that this is being promoted as I think directed at protecting women from entering Canada and being trafficked into sexual exploitation. The route by which historically that was done was alleged to be the exotic dancer work visa. I am sure you are familiar with it. The fact is, virtually none of those are being issued any more, so whatever you think of that as a technique, it appears that virtually no visas have been issued in the last few years. If this is supposed to get at a problem of women entering on exotic dancer visas and then being exploited, suffice to say that that problem is being addressed elsewhere because those women are not, in fact, coming in. This seems superfluous to that.

However, even if I were to accept that that is what this legislation is for and that there is an existing need for that, again I return to this point. If you think there is sexual slavery happening in Canada, rest assured it is probably not just happening to foreign women who are particularly vulnerable because of their immigration status. It is probably happening to vulnerable women who are Aboriginal, who are very young, who are runaways, who are being taken from one place to another in much the way that traffickers do. In other words, the very concerns you have about foreign women being exploited sexually will also exist with respect to Canadian women who are vulnerable and marginalized and can be exploited in this way. Trafficking need not be across borders but it can be, but it can also be within Canada. If that is true, then again we return to the question you have to address — we see these practices happening within Canada. Keeping foreign women out neither protects them nor brings an end to those practices.

Senator Frum: Well, it protects them by preventing it. It is prevention.

Ms. Macklin: Those women are likely being trafficked elsewhere; but again, if it is Canadian employers, Canadian customers who are doing this —

Senator Frum: We owe these women some protection from us.

Ms. Macklin: No, there are other women they are doing it to in Canada, right?

Senator Frum: I agree that is a problem that needs to be addressed. Anyway, for those we can prevent it from happening to in our country and that we are fraudulently allowing this to happen, we are allowing others to commit fraud upon them to bring them in for the purposes of sexual slavery. If we can prevent that, then that is some good. It does not help the Aboriginal girls, I agree, but there are other things we can do for them. It will help those women from Eastern Europe or wherever they are coming from.

Ms. Macklin: one of the other things you have to take into account here is that if they are not coming in on visas there are other ways they can come in as well. Again, it is not obvious that this is in fact going to make any difference; but in any event, as I said, the exotic dancer visa program has been pretty much shut down. They are clearly not coming in on those visas, so whatever value you think this has seems to be entirely superfluous given the empirical data at this point.

The Chair: Professor Macklin, I have a question. Coming back to the concern you have expressed regarding the use of the ministerial instructions or ministerial decree, as you referred to it, your strong preference obviously is that a regulatory process should be used rather than this ministerial decree or ministerial instruction.

It is my understanding, though, that the use of ministerial instructions or ministerial decrees in much legislation in this country does happen and has for a number of years, and obviously I guess there are some circumstances where ministerial discretion is considered to be necessary. I am wondering what your comment might be on that. I understand your point, that you are not in support of a ministerial decree at any time, but has it not been used quite frequently in this country through many different pieces of legislation?

Ms. Macklin: I will defer to others' expertise. I have not seen ministerial instructions outside of the Immigration and Refugee Protection Act. Here I think it is important to distinguish between ministerial instructions and a legislative grant of discretion to the minister. That is, certainly this legislation and many other pieces of legislation grant ministers discretion with respect to particular kinds of decisions in individual cases. You are absolutely correct that that is widespread, pervasive and simply a part of the system.

However, ministerial instructions are, as far as I know, novel and distinctive, and I have not seen them used outside of the Immigration and Refugee Protection Act. I defer if there is evidence to the contrary. The concern about them is that they give the minister the power to make law without appropriate legal pedigree, and more concerning still is that they appear to be used to overrule what is genuine, beyond debate, law and regulation.

The Chair: one further quick question, professor. You said earlier that you felt the immigration visa officers were ill-equipped to deal with making these decisions, whether or not a worker should be allowed to enter the country; yet when you say that, what comes to mind, many times we have heard that when statutory changes are proposed that would limit judicial discretion, it is problematic because judges are on the front line. The judges are there, they are familiar with the facts and the given circumstances of that particular case, and it has been argued they are the ones best able to make those decisions.

Similarly, would the immigration visa officers not be the ones best equipped? They are the ones dealing with the facts. They are the ones who have built up the expertise in dealing with these matters. Would they not be the ones who would be most equipped to make these decisions? Those decisions have to be based upon something, yes, upon the ministerial instructions. They cannot go off on a lark of their own; it has to be grounded in something. I am curious why you would say they would be ill-equipped.

Ms. Macklin: Here I would evoke Professor Hennebry's earlier remarks, which are to say if we are concerned about exploitation by employers, visa officers, a Canadian embassy or high commission abroad will not have the kind of nuanced understanding or familiarity with the practice of specific employers in Canada to make the assessment.

Really, I am referring here to how well equipped a visa officer is in comparison to other bureaucrats at other points in the system. By comparison, here you have the people who do the labour market opinion and people who have familiarity with particular employers and their track record of how they treat workers. Do they pay them properly? Do they abide by all occupational health and safety criteria? Do they abide by maximum hours, minimum wage requirements and so on? Those are the sorts of things a visa officer abroad would actually not know.

I am not comparing how equipped the visa officer is to a judge; I am comparing how equipped the visa officer is to other people in the system. Again, once we recognize that the perpetrators of exploitation are Canadian employers and recruiters primarily in Canada — some of whom are abroad but some of whom are in Canada — then giving the decision-making authority of the discretion to a visa officer abroad is probably not giving it to the right person.

The Chair: Thank you for that response.

Senator Fraser: I have two questions, both for Professor Macklin. Let us try to keep the questions and the answers as concise as we can.

The first is a point of clarification arising out of one of your answers to Senator Jaffer. Back to humiliating or degrading treatment, including sexual exploitation, I now find myself wondering whether humiliating or degrading treatment, under the terms of this bill, will necessarily have to include sexual exploitation and that other humiliating or degrading treatment would not be covered by this act, or whether sexual exploitation is just one example of humiliating or degrading treatment. What do you think?

Ms. Macklin: I would read "sexual exploitation" as one species or one example of humiliating or degrading treatment.

Senator Fraser: Second, this follows in a sense on your exchange with Senator Frum. Over the weekend I read a very interesting paper that you wrote in 2003 in the International Migration Review called "Dancing Across Borders: ‘Exotic Dancers,' Trafficking, and Canadian Immigration Policy." You had a passage in there on something called the Almanzo Project, which seemed to address the fact that — as we are all agreed, we are talking here about human tragedies that are extremely complex and difficult to solve, but the Almanzo Project sounded like an interesting approach. Could you tell the committee about it?

Ms. Macklin: It was a joint initiative of, I believe, the police, the RCMP and to some extent what was then CIC and I guess has since become the Canada Border Services Agency, to address concerns about foreign national women, among others, in the sex trade industry.

It would appear that Canadian consumers of services in these clubs prefer women to do things that are not in fact lawful. They pay extra money to have these women do things that are not lawful, and bar owners therefore demand it of them. Women who need the money do it, and that is how the cycle goes on. The problem is that those women are fearful of being discovered and fearful of being deported, so they are the least likely to complain about it.

Project Almanzo was designed to find a way for women to safely speak up without fear of removal from Canada. It is precisely immigration enforcement that heightens their exploitability.

Unfortunately, as I understand it, though the program was launched and seemed to be proceeding, it was dismantled, and that is all I know about it. I do not know that it has been revised in any capacity.

Senator Fraser: one of the interesting things you said about it in your reference in this paper was that there was a program for the women whereby charges against them — because they are engaging in these illegal acts — would be stayed if they completed English and computer training courses. Over the course of a year, they appear to have had 115 graduates, and that is just in Toronto. It sounded pretty successful. You do not know any more about it?

Ms. Macklin: No, I am sorry, I do not. one of the things about women migrating as sex workers is that many of them have many other qualifications, but our immigration systems — and this is true of Canada and globally — are quite restrictive. For women, often their only route to migration is by engaging in some commercialized form of traditional women's work, and that means child care, sex, and/or marriage or housework, as it were. Many of these women certainly would like to be doing different kinds of work or are qualified to be doing different kinds of work, but our immigration system is narrow in who it admits, and that is one of the reasons they end up coming in through these routes. I think that is all just a way of reminding us that we should not be defining these women solely in terms of the work that their particularly desperate situation has resulted in their doing.

Senator Runciman: My question is a follow-up to what Senator Frum was posing to the witness. Essentially, the intent of this legislation is to protect individuals from exploitation and victimization. I gather from what you are saying here that the position is that an officer should ignore the intelligence he has on the probable fate of an individual, let that person in, and the position is that we can eradicate abuses here. I guess you have to accept that if we are wrong, people will be abused and we are condemning potential victims to abuse. I conclude that is the position of the witnesses today.

The Chair: Professor Hennebry, would you care to respond?

Ms. Hennebry: I think that is not quite what we are trying to get across here. Certainly, prior to even the stage of there being a work permit issued at a visa office, there should already have been a process by which the veracity of the employment offer was assessed, and this should have some teeth. By the time it gets to that stage, we should have already done our job and made sure this job was, in fact, a job that was legitimate, legal, and that there would be compliance with Canadian law with respect to health and safety, among other things. To then say that the only people who can then do something to help stop the point at which these migrants are to be vulnerable is the visa officer speaks to what Professor Macklin was talking about, a sad state of affairs with respect to our own regulatory mechanism.

Ms. Macklin: Let me return to what I believe to be the purpose of this provision. Candidly, this provision, I expect, will not be used very often. What this provision is about is sending a message that Canada cares about exploitation, cares about trafficking in women, is really concerned about it, and, "See what we have done; we have passed this law." We will have that law as part of the symbolic message and, in the meantime, not be doing any of the practical things on the other side with respect to actually regulating employers, who happen, unlike foreign nationals, to be voters. It is more about appearing to do something while not doing the sorts of things that might actually have a positive impact.

The Chair: Thank you, Professor Macklin. I am sure I can speak for all of us around this table that we hope you are wrong in that assessment, but we heard what you had to say.

Colleagues, that concludes our discussions with this panel. Professor Macklin and Professor Hennebry, we want to thank you. Your comments were thoughtful and pointed. We certainly did not have to guess what was on your mind, and that is very helpful to us. We appreciate that. Thank you and we look forward to perhaps having you before us again in the future.

Colleagues, we will now continue our consideration of Bill C-10, the safe streets and communities act. We now have a change in focus from our previous panel. This is our fourth panel of the day. This panel and these discussions will focus on Part 1 of Bill C-10. That part provides for the enactment of the justice for victims of terrorism act. The stated purpose of this act is to deter terrorism by establishing a cause of action that would allow victims of terrorism to sue perpetrators of terrorist acts and their supporters for the losses and damages they have suffered. Part 1 also proposes to amend the State Immunity Act to create a new exception to what is known as state immunity, which is the general rule that prevents foreign states from being sued in Canada's domestic courts. The proposed new exemption would remove state immunity only when the state in question has been placed on a list established by the Governor-in-Council on the basis that there are reasonable grounds to believe that the state has supported or currently supports terrorism.

Colleagues, we are very pleased, for this portion of our discussion, debate and consideration of Bill C-10, to have representatives with us from the Canadian Coalition Against Terror, represented by Ms. Maureen Basnicki, Co-Founder; and Ms. Sheryl Saperia, Senior Advisor. We also have, from the Canadian Centre for International Justice, Ms. Jayne Stoyles, Executive Director.

Ms. Basnicki, I understand you have an opening statement you wish to make.

Maureen Basnicki, Co-Founder, Canadian Coalition Against Terror: Thank you. The tragedy that crushed my family on 9/11 and my thoughts on the justice for victims of terrorism act that is designed to deter such horrors are very much a matter of public record. Today, I simply wish to take this opportunity, on behalf of Canadian terror victims, to say thank you to the Prime Minister for following through on his election promise to introduce the JVTA; to the House Justice Committee for introducing several key amendments that victims had requested; to Senator Tkachuk and so many of his colleagues on both sides of the aisle in both chambers who have been so supportive of our efforts; and to all senators who will support what we have termed the Lockerbie amendments, which we expect to be introduced shortly.

Senators, I have done all I could over the last seven years to bring this legislation to a final vote in Parliament. Its passage is now in your hands, and I am here today to ask for your support this one last time.

Sheryl Saperia, Senior Advisor, Canadian Coalition Against Terror: Honourable senators, I am so pleased to be here today to discuss the justice for victims of terrorism act, a legislative initiative that the Canadian Coalition Against Terror has been working on for so many years and which some of the best legal minds in this country have endorsed. I would be happy to address any specific provision within the Bill during Q and A but, for now, in C-CAT's last committee appearance before Bill C-10 is voted on, I would like to offer a big-picture perspective on what you, as Canadian parliamentarians, would be accomplishing by turning the JVTA into law.

Senators, the primary motivation of victims in pursuing this measure has always been the deterrence of terrorism, and the JVTA's potential to accomplish this goal is manifold. Civil suits have the potential to financially impair the terrorist infrastructure through successful court judgments, and even the possibility of being named in a civil suit may deter potential sponsors, who rely on anonymity, from supplying funds. In turn, a terrorist group will have trouble recruiting and training its members, purchasing weapons and launching attacks if it or its sponsors have been forced to spend their money paying out damages awards. The JVTA, demanding the lower civil standard of proof, can hold terror sponsors accountable even when the criminal justice system has failed to do so.

Civil suits can also garner the attention of government regulators to illegal conduct that they had not detected themselves. For example, lawsuits filed in 2004 against the Jordan-based Arab Bank for allegedly distributing compensation money to families of terrorist suicide bombers triggered a probe by U.S. bank regulators and a Justice Department criminal investigation.

Lawsuits can additionally deprive terrorists of a key promotional asset. Jason McCue, a lawyer for the Omagh family members in their civil action against the real IRA in Northern Ireland, has pointed out that conventional state counterterrorism measures can be manipulated into David versus Goliath propaganda victories that advance the terrorists’ agenda. A civil suit, however, deprives the wrongdoers of this opportunity. Terrorists cannot portray themselves as the victims when parents who have lost their children in a terrorist attack take the stand in court.

Perhaps most notably, the JVTA will end the impunity enjoyed by state sponsors of terror. As Dr. Peter Leitner, a noted counterterrorism expert, has pointed out:

There is something fundamentally absurd with the current legal arrangement in Canada that allows lawsuits against Iran for selling you rotten pistachios, but bars legal action against them for sponsoring terrorist attacks which kill Canadian citizens abroad . . .

Lastly, passage of the legislation should help facilitate the execution of suits against local terror sponsors and perpetrators. The JVTA carves out a specific cause of action rather than relying on general tort principles. The bill's retrospectivity and limitation period will also be helpful to existing terrorist victims in filing claims against their local wrongdoers.

I conclude by quoting an excerpted passage from an email written by a Canadian recently convicted of terrorism offences:

We have to come up with a way that we can drain their economy of all its resources, cripple their industries, and bankrupt their systeMs. . . . Imagine if there were 10 September 11’s, wouldn't that accurately bring America down, never to rise again? Yes, I understand that innocent human beings died, but there is absolutely no other way of achieving the same objective with the same effect.

The JVTA turns these malicious ideas on their head by attempting to cut off the terror economy in order to save, rather than wreak havoc on, innocent lives. Moreover, victims take their fight to a court of law without advocating for violence.

Senators, by providing a civil remedy for the contravention of terrorism-related criminal laws, private citizens are poised to strengthen Canada's efforts in confronting terrorism and terror financing.

Jayne Stoyles, Executive Director, Canadian Centre for International Justice: Distinguished members of the committee, I want to thank you for the opportunity to speak to you today about Part 1 of Bill C-10.

I want to say first that I think it is positive that Parliament is considering creating a cause of action that allows victims of terrorism to sue perpetrators of terrorism and their supporters. Survivors of terrorism need recognition, support and compensation where possible, in the same way that the survivors of so-called common crimes often need justice as part of their healing process after a traumatic experience.

I also believe firmly in the possibility that at least some of those who plan and carry out such horrific acts of violence can be deterred if it becomes likely that they will be held responsible in a court of law. Those dual goals of allowing victims to seek redress and deterring future atrocities of this magnitude are at the heart of a global trend towards bringing foreign governments and individual officials to justice before both international and domestic criminal and civil courts.

I want to raise two key points with respect to the sections of Part 1 that seek to amend Canada's State Immunity Act so that the act could no longer shield foreign governments and their agents from civil lawsuits in Canada.

The first point is that it is entirely appropriate, and indeed overdue, for the State Immunity Act to be amended in this way, as most nations now acknowledge that they should not be immune for everything, not when they are engaged in activities that are contrary to international law and therefore cannot be said to be within their sovereign powers. There are already exceptions to Canada's State Immunity Act allowing foreign states to be sued in Canada for commercial activities and for their responsibility for death, bodily injury or property damage that occurs in Canada. These exceptions were included because the underlying activities are not deemed to be within the sovereign powers of the state. Similarly, acts of terrorism are not within the sovereign powers of a state.

My second point is that it is absolutely essential that a parallel amendment to the State Immunity Act be included for torture, war crimes, crimes against humanity and genocide, which, along with terrorism, are considered among the most serious violations of international law. The victims of these heinous crimes are no less in need or deserving of justice, and the goal of deterrence is no less essential.

I know you are all familiar with the case of Zahra Kazemi, a Canadian citizen who went to Iran in 2003 with a permit as a photojournalist and was tortured and killed. Her son Stephan has since devoted so much of his life to the pursuit of justice. His lawsuit in Montreal against the Government of Iran and individual Iranian officials is the only hope he has left. If you spent five minutes with him, you would want nothing more than for him to have the justice he seeks. Yet, Canada's State Immunity Act has been resulting in the use of taxpayers' money for representatives of the Government of Canada to stand on the other side of the courtroom, with the Iranian government, and argue against his right to a remedy for the torture and death of his mother.

Iran's argument that it is immune from the lawsuit because of the State Immunity Act follows a decision in Ontario that denied justice to Houshang Bouzari, a businessman who was also tortured in Iran and now lives in Toronto.

Mr. Bouzari, like all torture survivors, continues to suffer enormously from the physical and psychological trauma. I remember a powerful conversation I had with him when we first met. He described to me how difficult it is to live with the fact that the denial of justice in his case, because of the State Immunity Act, allowed the same government and the same individuals to kill Zahra Kazemi and other Canadians since then.

In the interests of time I will just flag a few additional key points that I can expand on during the question and answer session as to why it would be entirely appropriate and in Canada's interests for you to insert the language that I have with me, which was developed by a group of law professors and lawyers, into Bill C-10 to create this additional exception.

First, the prohibition against torture is extremely clear in international law and therefore an act that governments should not be allowed to claim as a "sovereign act."

Second, allowing lawsuits in Canada for acts of torture committed abroad will not swamp Canadian courts because there are checks and balances in the system already, and there are more checks in our proposed language.

Third, immunity for torture, war crimes, crimes against humanity and genocide has already been eliminated in Canada and internationally for criminal cases concerning these acts.

Fourth, as the world struggles to respond to crises like the current situations in Syria and Iran, being able to bring some of the officials responsible for atrocities to justice is such an important tool, not only of response but also of prevention.

Finally, the Bill that I have with me, copies of which are available, was introduced in the last session of Parliament with support from MPs from all parties and endorsed in a December 2010 report of the Standing Committee on Foreign Affairs and International Development as it considered how to respond to the situation in Iran.

It is fitting that we are discussing these issues on a day recognized as Family Day in some provinces in Canada. You have an opportunity to prevent Canadian families from having to suffer the enormous trauma that results from terrorism and torture, and I hope you will seize that opportunity today in the interests of all Canadians. Thank you for your time.

Senator Fraser: Welcome to all of you, and welcome back to Ms. Basnicki and Ms. Saperia. I think it is no exaggeration to say that the power of your testimony before this committee when this Bill first was bruited had a great deal to do with moving the whole project forward. I do not think that any of us who were here that day will ever forget. Thank you for that.

Ms. Stoyles, you referred in your presentation to language that you have with you. I assume you meant the text of the private member's Bill that was presented by Mr. Cotler in the last Parliament. Goodness knows it sounds tremendous, but I find myself wondering if the perfect is not the enemy of the good here. We have before us a Bill that addresses the question of the victims of terrorist act. If we decide to shoehorn in all these other nefarious acts, do you not see a risk that we would find ourselves faced with the usual expostulations from learned civil servant who would say, "Oh, but you haven't understood the implications for this, that and the other, and it doesn't fit in this bill," and the whole thing could grind one more time to a halt?

Ms. Stoyles: I also have a hesitation in raising it because of all the incredible work that has been done on this issue of terrorism. By no means do I want to undermine that by raising these additional issues.

However, as an organization that provides legal services to torture survivors and survivors of other atrocities, our challenge is that it is difficult to explain to them why people who have suffered similar kinds of trauma and the aftermath of that have a right to a remedy, and yet these other acts that are recognized as serious in international law do not yet allow for a remedy. The mechanism of doing that I would leave more to you, but it is difficult for us to go away thinking, "Now we begin again." This Bill was introduced a couple of times in Parliament. Parliament was prorogued or an election was called, and we began again.

It is a very similar kind of crime or act with a very similar need for redress, and it strikes me as fitting very well as we are creating this amendment to the State Immunity Act.

We are not asking for a similar creation of a cause of action as is requested for terrorism, but simply the parallel amendment to the State Immunity Act.

Ms. Saperia: I fully respect your agenda here. My concern, to paraphrase Irwin Cotler, the sponsor of this private member's bill, is that by commingling the two concepts of terrorism and torture into a single Bill you end up doing a disservice to both. If it were up to me, I would want this Bill to continue to focus on terrorism and terror financing. Bringing in other egregious crimes, albeit they are worthy indeed of legislative attention, would cause the Bill to suffer.

I highly recommend that you continue, as you have, to pursue a completely separate Bill dealing with crimes like torture, war crimes, crimes against humanity, et cetera.

Senator Fraser: Ms. Stoyles, I believe this is the first time that this particular project has been brought to the attention of this committee. Ms. Basnicki and others will be able to tell you that the road may be long, but you have taken some good steps along it. I thank you for bringing it to our attention.

Senator Runciman: I assume that everyone around the table is sympathetic to what you are suggesting here today, Ms. Stoyles. I assume you appeared before the house committee on Bill C-10 and made your case. We know that there was a last-minute all-party agreement to do what we are going to be doing here, hopefully. That might jeopardize the process or, at best, delay it, so I think the suggestion of looking at this as a separate effort on the part of the government might be appropriate.

In terms of the logic of the amendment regarding the liability of foreign states, I am wondering how a judgment would be obtained against a foreign state or entity. one of our witnesses to follow, I believe, was referencing the American experience with similar laws allowing victims of terrorism to sue state sponsors. The American courts have awarded almost $19 billion to American victims, but most of that has never been collected.

Would you like to address that issue?

Ms. Saperia: It is true that more money has been awarded than has been collected in the United States. However, hundreds of millions of dollars have ultimately been collected by victims there. Simply put, our view is that not every case will be successful and not every case will be collected upon, but if even one case results in a successful collection that prevents one terrorist attack, this Bill will have done its job.

I would like to explore your question further because it is a really good one. Is this Bill just symbolic? Can victims actually succeed in getting judgments and have them enforced? I will focus specifically with regard to foreign states.

My position is, first, within the Bill the Minister of Finance and the Minister of Foreign Affairs are encouraged, under proposed section 12.1 of the State Immunity Act, to assist the successful victim plaintiff in identifying and locating assets and property of the foreign state in Canada. Although that language could be stronger — it uses optional language, such as they "may" assist, rather than compulsory language, which we would love to see — nonetheless, that section will help to boost the plaintiff's chances of successful collection.

It is also possible that a foreign state will voluntarily submit to the jurisdiction of the Canadian court or comply with the court judgment. Let me explain that, because one's first thought is why in the world would a foreign state agree to pay up in a Canadian court? I would say it is really hard to predict how the political context will influence a state's decision as to whether to get involved in this type of suit.

I would like you to consider the Lockerbie bombing case. In 1988, a Pan Am flight was blown out of the sky. After several years of criminal investigations all signs pointed to Libya's involvement. American victims actually lobbied the U.S. government and succeeded in getting changes to their laws in order to be able to sue Libya. Libya was found liable and, of course, refused to pay.

Now, around that time the U.S. and the UN both imposed very heavy sanctions on Libya, and as a result of those sanctions Libya agreed to pay out I believe it was $8 million to each family, in order to get those sanctions lifted. You never know exactly how the dynamics will affect a foreign state's decision.

There are many other things I can say. I am happy to discuss further, but that is just for you to consider.

Senator Runciman: You referenced the government identifying domestic assets. Is that all they do? To use the U.S. as an example, do they simply identify or do they actually seize those assets and make them available?

Ms. Saperia: We envision here a court, if they were to find a state liable, would be able to actually freeze those assets within Canada, but the court would not necessarily help them locate those assets. The government's role here would be to help locate, and then it would be the court's job to get involved.

In the United States, they have really complicated things. We have one consolidated piece of legislation here that does the job. There they have five or six or seven pieces of legislation trying to accomplish what this Bill does, with the President having a waiver in order to bar the seizure of a foreign state’s assets. There is something else in the United States that is very complicated, which we have not advocated for here and is not present in the Bill — that being the ability to try to seize diplomatic property of other foreign states. That is not something that we seek, and in fact we would probably view that as a breach of the Vienna Convention. They have had more confusion there.

Senator Runciman: Have you looked at privacy issues provincially or federally? Are there any privacy issues with respect to this initiative?

Ms. Saperia: I do not believe privacy issues have ever come up in the concerns, and I would tell you that some of the best lawyers in this country have reviewed this Bill over a period of probably seven years, and that has never come up as a potential problem.

Senator Jaffer: Thank you for coming again. As you know, the last time you were before the Anti-terrorism Committee. I certainly commend you, Ms. Basnicki, for your persistence in this, and I also recognize the sad loss you have suffered. You have shown great courage, and I salute you for that.

Ms. Saperia also appeared before the Anti-terrorism Committee. I certainly am supportive of what you are doing, but I will raise some of the same concerns that I raised last time, and maybe since then you have had some answers.

As you remember, I had brought up the issue that — and correct me if my steps are wrong now — Canada identifies a country and puts it on the list of countries you can sue, identifies the assets and the victim starts the action. While the action is proceeding — and we all know these things take many, many years — Canada delists that country. I had raised this same concern with you. I did not get an answer from the government or anyone about what happens.

My concern is, once again, we are raising the expectations of victiMs. I am concerned, if you did get an answer, will Canada continue to support the victim while their action is continuing? Have you heard anything further on that?

Ms. Saperia: Thank you so much for that question. I actually think that as a result of concerns like yours we were able to insert another amendment into the Bill in one of our last hearings. I would like to turn your attention to the State Immunity Act amendments, proposed section 6.1(10). I will read it for you:

If proceedings for support of terrorism are commenced against a foreign state that is set out on the list, the subsequent removal of the foreign state from the list does not have the effect of restoring the state's immunity from the jurisdiction of the court in respect of those proceedings or any related appeal or enforcement proceedings.

That means that as soon as that state appears on a list and a suit is commenced, whatever happens in that process — because you are quite right, it could be a long process — that suit will be allowed to continue to its end, including any appeals or enforcements.

Senator Jaffer: As you know, this was one of my very big concerns the last time we met. What I am concerned about — and I may not have said this very clearly — is what happens to the assets that are identified? Will the victims still have access to those?

Ms. Saperia: My reading of this legislation is that it would continue to allow the suit to proceed, just as if that state had never been removed from the list.

Senator Jaffer: The other concern I raised last time, which continues to be a big concern for me but this Bill cannot cover it, and some of the things that you raised, concerns the fact that sometimes the biggest threat is within our country. Today we are looking at a foreign state, but another day we need to look at de-radicalization within our own country, and there is still a lot of work to be done on that.

Ms. Saperia: In terms of de-radicalization efforts, I agree with you 100 per cent, and certainly this Bill does not cover de-radicalization, but the Bill does enable civil suits against local terrorist sponsors and perpetrators. This is not simply dealing with foreign states and threats from abroad. This does deal with the threat from within as well.

Senator Jaffer: Once again I want to thank you for your work.

[Translation]

Senator Boisvenu: Congratulations on your work! When someone is a victim of crime, keeping up the fight takes years and a lot of energy. one thing is certain, though: when victims speak out, they take the power away from the criminals.

My questions are technical. A Bill remains theoretical for me until it comes into force and improves things for victims of crime.

I will give you a series of questions and then you can answer. My first question concerns prosecution costs. A lot of victims do not prosecute criminals because of the cost. Who assumes the cost? Prosecuting a country is not the same as prosecuting an individual.

My second question is this: once you have won a case, you need to recover the money. If the fight goes on for years and, in the end, there is no improvement for victims, I am certain that victims will not want to speak out and prosecute in the future. We see it in sexual crimes where only one woman out of ten speaks out because they are often afraid that when the legal proceedings are over, the criminal will be better off than the victim.

What will be the procedures and support that you will eventually show to ensure that the country or terrorist group that has been found guilty pays the compensation?

My third question concerns the assets of these countries or groups that might be in Canada. What role should the Canadian government play to speed up or facilitate the seizure of those assets when the country or group is found guilty of terrorism or of crimes against humanity?

Were my three questions clear?

[English]

Ms. Saperia: Let me try to go through them and if I miss anything, please remind me. In terms of the cost that it would take to file a civil lawsuit, that is true, it can be very expensive. There are a few comments that I would like to make about that. First, the point here is that terror victims should be granted a civil remedy that they can decide to exercise or not. Just like any other victim of any other crime in this country, they should be able to make an informed decision by going to a lawyer and by discussing whether it is financially prudent to file a civil suit. That is a question that any victim will have to encounter: Does the defendant have deep enough pockets? Is there a chance of collection? We are arguing to let victims of terror have the same chance as anyone else in this country to make an informed decision about whether it is in their interest to pursue that claim or not.

The other point is that lawyers are in a position to make contingency arrangements, and they can say to a victim, "I will only charge you if you are successful," in which case that could prevent a victim from being terribly out of pocket.

In terms of trying to create mechanisms that will increase the likelihood of payment, this goes back to the question of whether defendants will ever abide by a Canadian court's order; what are the chances of collectability? I would like to go through a few considerations here.

First, when we ask whether this Bill is only symbolic, let me say that the symbolic element of the Bill should not be diminished. Parliament is making a clear statement that terrorism is an issue that they take seriously, that terrorist sponsorship will not be tolerated and that, importantly, victims have a key role to play in this process. In criminal proceedings, the victim has barely any role at all; in civil proceedings, they get to initiate the suit and settle, and they get to choose their own legal representation.

Second, victims may find that they have very good reason to pursue a claim in court, even if they do not anticipate collection of a damages award. Turning to the civil courts offers them an alternative avenue to pursue justice. The civil process, regardless of the end payout, can publicly and officially identify terrorist sponsors, hold them civilly accountable, utilize the discovery process to unravel the illegal financial networks that terrorist sponsors try so hard to obscure, and establish as a matter of public record the victimization of the plaintiffs by the defendants. I come again to this point that terror victims should be able to decide for themselves whether it is worth it.

I would like to make a few other points. Local sponsors of terror with assets in Canada will have difficulty evading judgments against them because it will be easier to locate and seize their assets. I have also made the point about state sponsors and all different considerations that will be involved in whether or not they decide to pay.

There is another aspect, too. Over the years, we have gotten some indications from allies that they are interested in this type of legislation. If, one by one, Western countries choose to enact legislation like this, terrorist sponsors will run out of places to hide their assets. As a result, they are going to hurt financially from this.

I have two more points and then I will be done. I have read certain critiques of this Bill and they drive me crazy. I wanted to dispel the notion that the JVTA is merely symbolic because "in an age when people are willing to commit suicide to achieve ideological ends, it is hard to imagine the threat of civil liability in a far-off country deterring them."

The argument is that terrorists in caves are unlikely to be deterred by civil suits or to pay out any damages awards. Senators, these types of criticisms suggest a profound misunderstanding of the bill. While perpetrators can be targeted under the legislation, and I hope they will be, one of the primary objectives is to go after the sponsors of the terror — that is, individuals, organizations and states that do not reside in caves. They have assets in their names and they attempt to obscure their involvement in illegal activity and they have incentive to appear on the right side of the law. I envision some good things coming out of this.

My final comment is that if the JVTA is enacted and victims are systematically unable to collect on judgments, then something has gone wrong and Parliament should revisit and insert whatever amendments are needed. At this point, I am confident that this Bill is very strong, and I think we can do some damage to our enemies.

The Chair: Ms. Stoyles, is there anything you wish to comment on in regards to Senator Boisvenu's questions?

Ms. Stoyles: In response to some of the other comments, I understand that senators may decide this is not the time for this parallel amendment. Perhaps this is just to bring it to your attention for the future; that is also important. I also want to say that by no means do I want to undermine what my colleagues are here to achieve today. I am here entirely in support of that. However, I will ask you again to consider whether this is a way to do this that would not unduly delay the bill.

As we have been looking at this process for a couple of years, we have had situations in Iran and in Syria, to give two examples right now, that have been garnering significant international attention, where many tools are being brought out. I strongly believe in the possibility of justice. Houshang Bouzari said that if there is the possibility of bringing these kinds of cases forward, we do have the possibility to deter these kinds of crimes from being committed. The Kazemi case is right now on appeal in Quebec, and Stephan Kazemi's right to proceed because of existing exceptions in the State Immunity Act has been allowed because it has been deemed that he suffered his injury in Canada, his nervous shock, as a result of his mother's death. However, both her right and the right of the state to proceed have been precluded. It is a call to Canadian Parliament to act.

The Ontario Court of Appeal's decision in the Bouzari case has resulted in a reprimand from the UN Committee Against Torture, the committee charged with interpreting Canada's obligations under that convention. We were slapped on the wrist for our interpretation in the Bouzari decision. Now we are up for review again, some seven years later, and again we have to demonstrate that we are no further along in providing a right to civil redress for victims of torture.

I have a couple of quick points in that context in response to the senator's questions. Around costs, in this context, what we have in Canada, in terms of possibilities for criminal prosecution of war crimes, crimes against humanity and genocide, is a wonderful new piece of legislation that was passed in 2000, which outlaws all those crimes. We have the budget in Canada to prosecute one case at a time. At the same time, we have an alleged 2,000 or more war criminals in Canada. Criminal prosecution is not an option in Canada to give people a sense of the possibility of redress, yet our organization works with the help of pro bono lawyers willing to give their time. All of our work as a charity allows the possibility of civil redress for people to go directly to court when they cannot get justice any other way, and to bring those cases forward as part of this global system of justice that we are trying to create. That is one key point.

Around enforcement, I think Ms. Saperia made the key points. In terms of enforcement, I would add that there is some possibility of seizure of assets and other types of recovery, but compensation is not often the primary driver for many people. If you ask Mr. Kazemi what his motive is, he will say in no way does he ever want to benefit financially from what happened to his mother. This is about the need for justice, the need for a court of law to say that this should not have happened to him and his family and his mother. It is about his incredible drive and the drive that I have heard from many people who are victims to not have this continue to happen to other Canadians while we just sit here and talk about the changes that we might make.

Senator Munson: That follows the question I wanted to ask because there are so many questions on the technical side. We use a lot of abbreviations around here, like JVTA, when there are folks watching us and watching us go through this parliamentary procedure of studying a Bill dealing with justice for victims of terrorism.

Ms. Basnicki, so people know and understand and we can put a face to this, when this law takes place, what will change in your life?

Ms. Basnicki: I think my colleague just mentioned it, and actually said it very well. Justice for victims of terrorism, to date, has been elusive. There has been no closure for us, no sense of justice, and in many cases the perpetrators are dead.

If I could have my day in court — and unless this law is passed, I do not see a day in court — and I could look at individuals, organizations or states and say, "You raised money to kill innocent civilians, and one of those innocent civilians was my husband," then I will feel some sense of justice. It boils down to that. It is the closest that we can get to having some kind of closure. If we can do this and know that it will prevent other Canadians — and it was mentioned that today is Family Day — I do not want any family to have to go through what my family has.

If I can create a legacy for my late husband that will help deter future acts of terrorism and prevent other Canadians from being in the horrific state that we found ourselves in, then it will be a very good day for me.

Senator Lang: I would like to put a question to Ms. Saperia, if I could. In your remarks you mentioned that the more countries that enact this type of legislation, the more difficult it is for those that would go into this type of activity to find a place to put their assets, and subsequently we can diminish, perhaps, the roles they can play.

How many other countries, other than the United States — and if this goes through — Canada, have enacted this legislation, and are other countries considering such pieces of legislation?

Ms. Saperia: Currently only the United States allows for civil suits against foreign states in this concept. There are a whole bunch of other countries that have permitted civil suits against local terror perpetrators or sponsors. In fact, the Omagh case I referenced earlier in my remarks in Northern Ireland has been a fabulously successful case for terrorist victims with local perpetrators.

With regard strictly to lifting state immunity for the support of terrorism and being able to launch a civil suit against a foreign state, only the United States thus far has passed such legislation. I personally think that, for better or for worse, Canada has a lot more credibility on the world stage, and I believe that other countries may sooner follow Canada's precedent on something like this.

In terms of which other states would be interested, I cannot say at this point. Any interaction we have had has been in confidence. I am confident only in saying that I believe other countries are watching this process carefully, with great interest in pursuing similar ideas.

Senator Lang: Looking ahead with such a piece of legislation being enacted and put on the books, what do you foresee the implications to our court system will be? Have you given that any thought?

Ms. Saperia: one of the things we really wanted to ensure was that the Canadian court system was not going to be bombarded with frivolous suits, especially against democratic allies. That was never the intent of this legislation. There are a number of hurdles built into the legislation that I am extremely confident will prevent many suits from going forward. There are a number of examples of these types of hurdles.

I will give you a couple of examples. If the terrorist attack occurs in another country and does not occur in Canada, then the plaintiff actually needs to try to arbitrate the matter according to international rules of arbitration, and a Canadian court can refuse to take jurisdiction of the case until those arbitration procedures have at least been attempted in a meaningful way.

Another example is that a real and substantial connection is specifically mentioned in order to allow a case to proceed in a Canadian court. We have been adamant that this Bill not create universal jurisdiction, meaning anyone can bring any terrorism-related case to a Canadian court. That has not been the intention here. There needs to be a Canadian connection.

These are just the types of examples that absolutely will ensure that there will not be an influx of cases, aside from the fact that these cases are challenging and complicated, and I do not think it is worth anyone's money or time to pursue it unless they were very serious and had a very good case.

Senator Angus: Thank you all, ladies. It is very interesting.

I will address this question to Ms. Saperia. If this legislation passes, do I understand there could be civil suits for damages arising out of Lockerbie, the Pan-Am explosion that Libya has allegedly perpetrated, or is it too late? Is there a time bar? What is the situation there?

Ms. Saperia: That is an excellent question. I want to say that our considerations of how a Lockerbie-type case could be dealt with within our legislation are actually because of previous Senate hearings on earlier iterations of this bill.

With regard to the timeline, for instance, the Lockerbie bombing took place in 1998. From a timeline perspective that could fall within this Canadian Bill because this Bill is retrospective to 1985, specifically to ensure that Air India victims would be able to benefit from this bill. Air India victims are the largest constituency of Canadian terror victims, and the thought of excluding them from any benefits of this legislation was unacceptable.

However, as the Bill currently stands, this Bill would not allow a suit against Libya for its activity in the Lockerbie case. Let me explain. What this Bill does right now — and I think this will change, so I hope there is a very positive answer to your question at the end — is allow a civil suit against a foreign state for providing support to a listed terrorist entity under the public safety list of terrorist entities, and that listed entity was responsible for causing the loss or damage to a Canadian victim.

What if, however, as in the Lockerbie case, the foreign state used its officials directly to cause that harm, not through a proxy? As the Bill currently stands, it would not allow a suit against Libya for that action. That is why the Canadian Coalition Against Terror has been very vocal about introducing what we have termed the "Lockerbie amendments."

What those amendments would do is not create a new exception for state immunity, because we did not want to make this too broad, but what we have said is that once a state has lost its immunity for supporting terrorism, it should also be able to be sued for directly engaging in terrorist activity. Those amendments were introduced in the house, but unfortunately they were introduced too late. We have been signalled the intent to introduce those amendments in the Senate. I do not know what the timeline of that is, but I hope it is very soon and that all of you will support it. It is a really important and entirely logical amendment.

Senator Angus: Let us assume that amendment becomes law. I am focusing on all this media attention to this very lavish condominium in Toronto on the harbour front owned allegedly by the state, according to some government officials, and belonging to the individual son of Gadhafi, according to others. As you anticipate this Lockerbie amendment coming into law, would one then be able to do a seizure before judgment of that kind of property? Is that how it is envisaged to play out?

Ms. Saperia: Assuming that the foreign state is listed on the government's list of state sponsors of terror who could be sued, then in theory that is the type of asset. It is a non-diplomatic asset that could be seized and used to pay out a successful damages award in favour of a victim plaintiff.

Senator Angus: Chair, I want to make sure I understand it. The Lockerbie amendment will or will not become part of the law. Assuming now it does not, it can only be one of the listed terrorist organizations like al Qaeda? Is that the type? Whom do you sue? Whom do the victims of Air India sue?

Ms. Saperia: Let me try to address the first part. Let us assume that the Lockerbie amendment does not pass, as you say. I certainly hope it does. Two things would need to happen. First, cabinet, on its list of terrorist-sponsoring states, would have to include — and we are using the Libya example here — Libya on that list. Prima facie, Libya could be sued. The second step would be whether Libya has supported a listed entity such as an al Qaeda and in turn that listed entity has caused the terrorist activity. If you can show both those things, then the suit would be able to proceed and in theory be successful.

In terms of Air India specifically, as it stands right now, research has indicated that this has been a local matter, and so there are local individuals, though, who were accused and acquitted in a criminal court. This could be an example where someone could be proven liable in a civil court where they were unable to be proven guilty in a criminal court.

Senator Angus: This was your point earlier about it has to be the individuals in a case like this, and to make it worthwhile, you would have to determine whether, your words, there were deep enough pockets to make it worth the effort, if they have money squirreled away in Northern B.C.

Ms. Saperia: Or if the victims do not care whether they actually get paid.

Senator Jaffer: I was going to ask about the Lockerbie amendment. We all know that is in the works because it is not in front of us yet. That was exactly my question, and I should have pursued it. If the list were in place, let us assume Libya would have been on the list. Now we are not so sure.

Ms. Saperia: Because of the political changes.

Senator Jaffer: The change in Libya.

Ms. Saperia: Correct.

Senator Jaffer: What happens now? We have not started a case, we are not so sure what will happen, and so that is a challenge now.

Ms. Saperia: I agree. If the list were created right now, it remains to be seen whether the political decision would be to list Libya for its past actions or whether they would want to start anew and say this is a new government, a new regime, hopefully making different decisions. As much as I would love to be in charge of making that list of terror sponsors, I will leave it to hopefully the very capable hands of cabinet.

Senator Jaffer: If it has not happened, then sadly some of those victims will not be able to use this.

Ms. Saperia: That is correct.

The Chair: Colleagues, we have 10 minutes and I have three senators listed in the second round.

Senator Fraser: If Libya is on a list and taken off a list before a suit is brought, there is no way you can bring the suit; am I correct about that? A short answer, please.

Ms. Saperia: I am sorry. I feel like I am talking too long. The provision says if proceedings for support of terrorism are commenced against a foreign state that is set out on the list then the subsequent removal would not affect it. That reads to me that a suit would have to be initiated first.

Senator Runciman: I wanted to commend Ms. Basnicki for her years of effort, and the contribution she has made to this cause is remarkable. I know it was a very difficult period for her family and herself, of course. I was personally proud that the Ontario Office for Victims of Crime in the aftermath of 9/11 was able to provide some assistance to Canadian victims of terrorism. The federal help was not there. That is essentially what the situation was. Today, what is the situation with respect to federal assistance that might be available to Canadian victims of terrorism?

Ms. Basnicki: Terrorism put me in the victims of violent crime club, and sadly at the federal level there is still a lack of a policy or plan in place. Terrorism, unfortunately, is still a provincial matter, and I find that incredible; but it is another area I am working on, and I thank you, senator. I do recall you were working for the Ontario government, and certainly the Ontario government of the day did everything possible to help us out.

There was little communication and cooperation between the provincial and federal governments at that time. I am very encouraged at how things have changed tremendously, and I look forward to a new plan and policy.

Ms. Saperia: May I jump in for five seconds to add to that? I promise to be very quick. As Ms. Basnicki indicated, federal compensation is absolutely non-existent, and provincial compensation fluctuates across the provinces and varies greatly. It only covers injuries that occur within the province, so if you get injured outside of it, you are completely out of luck.

I want to bring to your attention a provision within the Criminal Code, meaning a federal provision, that would actually provide assistance to victims, and the government has done absolutely nothing on it, so I would encourage all of you to find out why. Section 83.14(5) of the Criminal Code allows for property to be disposed if it belongs to a terrorist group. The next subsection, 83.12(5.1), says any proceeds that arise from the disposal of property may be used to compensate victims of terrorist activities and to fund anti-terrorist initiatives in accordance with any regulations made by the Governor-in-Council. The Governor-in-Council has made no regulations about this and no money that has been seized has ever been given to victiMs.

I am not saying that victims are out for money. In fact, my experience with Ms. Basnicki and every other terror victim in this country with whom I have had contact has been that they are absolutely not interested in the money angle. If there are federal provisions here that are readily available that could make life a little bit easier for terror victims in the aftermath of an attack, why are we not taking advantage of this?

Senator Runciman: Has any money been seized under that provision that you are aware of?

Ms. Saperia: I will undertake to find that out for you. We know that there are terrorist groups in Canada, so that money should be seized. If it is seized, at the very least let the Governor-in-Council make those regulations so it can move smoothly after that. I leave that with you.

The Chair: Our final question of this panel goes to Senator Boisvenu.

[Translation]

Senator Boisvenu: Thank you very much for this privilege, Mr. Chair. Ms. Basnicki, you are quite right that aid for victims is the responsibility of the provinces, and the federal government is doing everything it can. But I can assure you that you can count on my support. Once we have finished with Bill C-10, victims’ aid will be one of the files I will take on so that every province can provide a minimum to the families. You can be assured of my support.

[English]

Senator Angus: Without charge.

Senator Boisvenu: Without a charge. I am not a lawyer.

[Translation]

What is the process for determining the list of countries recognized as sheltering terrorist groups?

Is it a political process? Is it a legal process? And once the country is recognized, is it a national list or an international list?

[English]

Ms. Basnicki: I am not sure that I understood your question, the latter part, with the translation. Perhaps Ms. Saperia can address it.

Ms. Saperia: With regard to your second question, it is very much a national list. Any list that cabinet creates in terms of foreign states that they designate as supporters of terrorism is not applicable anywhere outside of Canada. If other countries want to create similar lists, by all means, but this is very much a national list.

In terms of the process, it is a political decision, and the standard seems to be set out here in proposed section 2.1 of the State Immunity Act amendments where it says, "For the purposes of this Act, a foreign state supports terrorism if it commits, for the benefit of or otherwise in relation to a listed entity as defined in subsection 83.01(1) of the Criminal Code, an act or omission that is . . . punishable under" certain sections of the Criminal Code. That is actually a legal standard, and it references certain Criminal Code provisions.

However, the next section says that a foreign state that is set out in the list is not immune from the jurisdiction. Therefore, the list will be a political decision, and the actual support of terrorism would be a legal decision.

The Chair: Colleagues, that concludes our discussion with this panel. On behalf of us all, I want to thank you for the presentations you have made. As you have said, Ms. Basnicki, this has been a long journey, one that has obviously been a painful one for you, but you certainly presented this clearly to us, and there has been a lot of effort to get to this day. We congratulate you for that. That is sometimes what it takes to get to this point. It does not come easy, but we recognize that, and you have our assurance we will look at this seriously, as we do with everything. We will pay particular attention to the points you have made here and take that into consideration as we come to a conclusion by the end of this week or the first of next week. Thank you so much.

Ms. Basnicki: Thank you so much.

The Chair: Ms. Stoyles, the points you raised focus more on proposed amendments, but you certainly brought that home loud and clear to us, and rest assured it will not be lost on us. Thank you.

We will continue now with our consideration of Bill C-10, in particular, the portion of Bill C-10 that concerns the enactment of the proposed justice for victims of terrorism act and consequential amendments to the State Immunity Act.

We are pleased to have with us in the final panel for today, from the Centre for Israel and Jewish Affairs, Mr. Richard Marceau, General Counsel. We also have Ms. Hilary Young, Assistant Professor, Faculty of Law, Queen's University, and from the law firm of Lenczner Slaght, we have Mr. David Quayat.

Mr. Marceau, we will begin with you. I understand you have an opening statement to make.

Richard Marceau, General Counsel, Centre for Israel and Jewish Affairs: Thank you very much, senator.

[Translation]

My name is Richard Marceau. I am here on behalf of the Centre for Israel and Jewish Affairs, the official representative of Canada’s Jewish community.

[English]

I will be making my presentation in French but will be happy to answer any question in any official language.

[Translation]

I will be commenting only on part 1 of Bill C-10, entitled the Justice for Victims of Terrorism Act.

I am particularly pleased to be here today because, in a former life, in another place, I was interested in these issues and had started to work on them.

I was made aware of these issues by C-CAT, the Canadian Coalition Against Terror, particularly I think by Danny Eisen, Maureen Basnicki and Sheryl Saperia, and two of these people have just testified before you.

They are models of involvement, civic engagement and drive. Canada’s Jewish community supports part 1 of Bill C-10. We are pleased to note that the government has responded to the requests made by victims of terrorism for some time.

We are also pleased to note that there is strong support from other political groups in this area. As you have too often heard, after an intense period following terrorist events, the victims are left alone, without recourse or support. The fear and especially the powerlessness remain for the individuals affected and the communities targeted. For that reason, the measures in Bill C-10 quickly obtained the support of many Canadians and many communities, particularly, Canada’s Jewish community. The Jewish community around the world, as in Canada, has too often been the target of terrorism.

You will recall, for example, that the Jewish community was the target of a terrorist plot in August 1999. Two members of an Algerian cell in Montreal, including Ahmed Ressam, the notorious Millennium Bomber, planned to blow up a tanker truck filled with gasoline in a neighbourhood where a significant number of Jewish Canadians live and spend time. Or again, in April 2004, a bomb was thrown at a Jewish school in Montreal, which is another perfect example of politically motivated violence and hate against Jews. Outside Canada, there was an incident in which a young Jewish woman, Marnie Kimmelman, was killed by a pipe bomb while she was quietly sitting on a beach in Israel.

As a community at risk, we feel that Canadian victims of terrorism should be authorized to engage in civil suits against people who commit and support terrorist acts, even if foreign states are involved.

We hope that this Bill will act as a deterrent to prevent future terrorist acts against Canadians. When my colleague, David Cooper, testified before your colleagues in the House of Commons, he asked that Bill C-10 be amended and he, himself, proposed a number of amendments.

We are pleased to see that a number of those amendments have, in fact, been made. And we hope that one of them, the one I mentioned a little earlier, the Lock of the Amendment, will be added.

We are also eager to see the government’s proposed list of states that may be prosecuted. Obviously, we are expecting that it will be a full and complete list. I know that I am running out of time and that you have many questions, but allow me simply to say that it is time to send strong messages to the victims, that they are no longer alone, they are no longer isolated and they are not powerless; and to the terrorists and their supporters, that Canada is serious in its fight against them and that neither we, as the government, nor the victims will stand still and that the time of impunity is over. Thank you.

[English]

The Chair: Thank you very much, Mr. Marceau. Ms. Young, do you have an opening statement?

[Translation]

Hilary Young, Assistant Professor, Faculty of Law, Queen’s University, as an individual: Mr. Chair, members of the committee, thank you for the opportunity to address this committee with respect to the proposed Justice for Victims of Terrorism Act.

[English]

My name is Hillary Young. I am a member of the faculty of law at Queen's University. My colleague, David Quayat, is an associate with the litigation firm of Lenczner Slaght in Toronto and served as a law clerk to the Chief Justice of the Federal Court.

Our submissions today are the result of work that we have done with our colleague Brendan Green on versions of this law since 2009. We have expertise in civil litigation, tort law, international law, and the constitutional division of powers.

At the outset, we recognize that terrorism is a serious problem that has significant effects on Canadians, and we share the government's desire to deter terrorism and to obtain justice for victiMs. However, in our view, this act is unlikely to achieve those goals. We also believe that the act is unconstitutional and would violate international law.

Mr. Green, Mr. Quayat and I have provided the committee with written submissions that outline our three main concerns with the bill. I will briefly summarize those concerns.

First, we believe the justice for victims of terrorism act would be unconstitutional. It essentially creates a new federal tort, a civil cause of action. The power to create civil causes of action falls to the provinces under the constitutional division of powers. Specifically, it falls under the provinces' power over matters of property and system rights. Mr. Quayat will be happy to take any questions you have about why it is that the act cannot be justified as necessarily incidental to a legitimate federal scheme or grounded in a federal head of power under section 91 of the Constitution Act, 1867.

Our second concern is that the act invites the government to violate international law by removing certain countries' immunity from the jurisdiction of Canadian courts. It is a fundamental principle of international law that sovereign states are generally immune from the jurisdiction of each others' courts. This principle was affirmed earlier this month in a case before the International Court of Justice, which rejected Italy's assertion of jurisdiction over Germany in relation to acts committed during the Second World War. The court made clear that this has nothing to do with how terrible or illegal the acts that were committed are. The court noted that the acts — these were acts of the Nazis — reflected a complete disregard for the elementary considerations of humanity, and yet the ICJ said, nevertheless, Italy does not have jurisdiction over Germany.

Our third concern is that the Bill would not realistically achieve its goals. The allegations involved in these kind of lawsuits will be difficult and expensive to prove and, even if a victim can prove her case, it is unlikely she will ever collect any damages, although that will depend to a large extent on the nature of the defendant. Foreign individuals, organizations and countries often have no seizable assets and may simply refuse to pay. It will be especially hard to get a foreign country to pay a Canadian court order against it.

That has been the American experience with similar legislation. It has led to extensive litigation, with victims spending large amounts of money seeking vindication that has almost never materialized. In fact, the United States stepped in to pay amounts owed to victims by countries like Iran when it became clear that these countries would not recognize U.S. court orders to pay. The American experience led one commentator to conclude that "the privatization of the war on terrorism has failed."

Stephen Flatow, who sued Iran under the U.S. law and successfully proved that Iran caused his daughter's death, said, "If I knew then what I know now, after spending tens of thousands of dollars trying to get some measure of justice for Alicia, I do not think I would have started this lawsuit." I should note that he did ultimately receive compensation, but it was from the U.S. government, not from Iran.

Rather than requiring individual victims to pursue expensive and difficult litigation, a more effective way to compensate victims would be to take advantage of civil forfeiture laws, whose goals are to deter unlawful activity and compensate victiMs. These laws allow a province to seize property acquired through unlawful activities, including criminal activities, and that property may then be distributed to victiMs. This would have a number of advantages over the act. Aside from being constitutional, the province, rather than the victim, would have to prove that the property was acquired through an unlawful activity.

To conclude, deterring terrorism and compensating victims are, of course, laudable goals, and the government is right to pursue both, but we believe the act will do little to achieve either. If anything, it may be harmful to victims of terrorism, who will be encouraged to spend thousands of dollars seeking justice, only to have the act found unconstitutional or to obtain a court order that cannot successfully be executed.

Those are our main concerns. Thank you again for the opportunity to be heard, and we are happy to take any of your questions.

The Chair: Thank you, Ms. Young. Mr. Quayat, did you have an opening statement?

Ms. Young: I spoke for the two of us.

The Chair: We will now proceed to questions, beginning with the deputy chair, Senator Fraser.

[Translation]

Senator Fraser: I would like to welcome all three of you and thank you very much for being here. Mr. Marceau, I was particularly pleased to hear your testimony because I think we can say that the Jewish community around the world has more often been the target of terrorist acts than any other group. So it is very important to have your point of view on this bill.

[English]

Ms. Young and Mr. Quayat, I read on the weekend, as carefully as I could and with great interest, your long piece making the arguments you have just given us in very short form. I still come away perplexed. Essentially, this Bill relates to the State Immunity Act, which is a federal statute. There is no way a province can override the State Immunity Act. It relates also to the Criminal Code and even mentions in passing the Immigration and Refugee Protection Act, although that is, as I recall, for definitional purposes.

If the federal Parliament cannot override the State Immunity Act or change it, how can a province do that? If a province cannot do that, then how can we achieve the goals in this legislation?

David Quayat, Lawyer, as an individual: Let me take that question.

Senator Fraser: You can tell me I am wrong. That is what I am asking you to do. That is where my puzzlement arises.

Mr. Quayat: To answer your question, we need to distinguish two parts of the bill. When I say the bill, I am referring only to the Justice for victims of terrorism act, not the rest of Bill C-10.

Withdrawing the immunity of a state is surely within the power of Parliament. We take no quarrel with that. It is the creation of a cause of action, what is clause 4, that is constitutionally offensive. It is constitutionally offensive for two reasons.

The cause of action targets what I would call two buckets of targeted defendants, state actors or other non-state entities, organizations, individuals and whatnot. Let me deal with the second first.

Suing an individual or a listed entity is in no way connected to state immunity. The two are not related because you are not suing a state. To say that the cause of action is against listed entities or individuals can be tethered to the State Immunity Act is simply, in my view, incorrect.

With respect to the targeted state defendants who are listed, here you have to unpack two other legal concepts. one is jurisdiction, and one is cause of action. Jurisdiction is the ability of a court to hear cases either against certain persons or over certain subject matters. Cause of action defines liability. The two are not legally connected concepts. To say that creating a cause of action is a necessary incident or a functional incident of the State Immunity Act, in our view, is constitutionally suspect and therefore would be open to attack under the division of powers.

If Parliament wanted to achieve a constitutionally lawful scheme, leaving aside our concerns on international law for a second, the way that would be achieved is to withdraw the immunity under the State Immunity Act, and then the provinces, who have the right under property and civil rights, could create causes of action as against foreign sovereigns or other individuals for torts of terror.

Incidentally, this is how federal law currently functions, both with respect to proceedings against the Crown and as the State Immunity Act is currently drafted. For example, in the State Immunity Act, personal injury and property damage and death that is caused by a foreign sovereign within Canada is not shielded from the immunity provision, but the State Immunity Act does not create the cause of action. For example, if any of you were to take a walk and slip and fall in the embassy of the United States, you could sue the United States in negligence, a cause of action defined in provincial common law, and the federal immunity is withdrawn. That is respectful of constitutional principles, balancing who controls the immunity and who controls the definition of a cause of action. That is where the disconnect is constitutionally.

[Translation]

Mr. Marceau: My colleague said that Canada’s constitutional law is complex, and the people who are elected in the other place and senators know very well that the issues of jurisdiction are complex. There are entire libraries full of decisions and doctrines on the subject.

Our analysis of the Bill found that it is constitutional, for three reasons. First, the cause of action is created for a breach of criminal law. We know very well that, under section 91 of the Constitution, criminal law comes under federal jurisdiction. So there is the first reason.

The second reason that can be established, and that speaks in favour of federal jurisdiction in this area, is the federal jurisdiction when it comes to foreign affairs. This area comes exclusively under the federal Parliament, and there is a direct link between part 1 of Bill C-10 and foreign affairs.

The third reason is peace, order and good government, the famous POGG. We think this third link can be established between part 1 of Bill C-10 and federal jurisdiction. We think these three factors together make this Bill constitutional and intra vires of the federal Parliament.

[English]

Senator Fraser: I am sure the lawyers on the committee will want to pursue that issue, but I have another question to put to you.

Ms. Young, you referred to the recent case between Germany and Italy in the International Court of Justice. I have read only a summary of the judgment, but I was not at all sure that it was a precedent for this country. Tell me why you think it is relevant.

Ms. Young: The case to which we referred reaffirms the proposition in international law that sovereign states are immune from the jurisdictions of the courts of other states, and by "states" I mean countries. of course, we can change our domestic law to remove that sovereign immunity, but that does not change the fact that that sovereignty remains in international law.

Mr. Quayat: It recognizes that in certain instances certain international transgressions become a state-to-state problem. In the Germany and Italy case the International Court of Justice was saying that countries cannot use the device of civil domestic process to remedy what is essentially a state-to-state violation in the form of what is called diplomatic protection.

Professor Young is correct that we can modify our domestic law, and we are not strictly bound by what the International Court of Justice has done, but Canada has filed a recognition of compulsory jurisdiction, and it is a real possibility that a future listed country could invoke that jurisdiction and force us to defend ourselves at the International Court of Justice.

Senator Runciman: Thank you for being here, witnesses. If you have responded to this, I lost the message. Do you agree that, if creating a cause of action in respect of terrorism is a national concern and no provinces have acted, the legislation is justifiable under federal authority?

Mr. Quayat: In order to invoke the national concern doctrine you have to show two things under a case called R. v. Crown Zellerbach, which deals with national concern. That case says you do not simply look at whether the provinces have chosen to take action but rather whether they are incapable, individually or collectively.

I would submit that it has never been put to the provinces to embark on a course of action either via the route of civil forfeiture or to create specific causes of action for terrorism to do so. I do not think the provinces are incapable. If one wants to look for guidance on how the current Supreme Court would approach it, one need look no further than the recent reference on the national securities regulator. The court walked a tight line to balance that which is truly federal, what we say is the withdrawal of the immunity, and that which is truly provincial, the creation of a cause of action.

Senator Runciman: On page 4 of your brief you say that Parliament has the authority to define the scope of a foreign state's immunity, but creating causes of action is in no way incidental to the scope of that immunity.

There is no footnote in terms of judicial authority with respect to that. I am having some trouble with the logic. If you can define a foreign state's immunity, why can we not say what they are not immune from?

Mr. Quayat: There is no precedent on this question, senator, because the State Immunity Act has not been the subject of a great deal of litigation. In fact, its constitutionality and its constitutional borders have never been tested, although there have been charter arguments raised about whether immunizing foreign states violates individual rights.

To answer your question I will return to the distinction of two legal concepts, jurisdiction and cause of action/liability. Jurisdiction merely says the foreign state may be brought before a civil court for these classes of issues, but the specific creation of a cause of action, those facts which, if proven, would give rise to liability, is a distinct legal concept. Again I return to the example of the Crown Liability and Proceedings Act and the State Immunity Act that is respectful of that bound. Those acts withdraw the immunity of, inter alia, Her Majesty the Queen in Right of Canada and foreign states, but it does not specifically define those causes of action for which either actor is liable.

Senator Runciman: Does it not strike you as absurd that you are contemplating restricting remedies available to our citizens against a state, a precondition of which is that the state itself is acting totally contrary to the principles of international law?

Mr. Quayat: The emotional reaction one can have is an obvious one, and it is nothing but sympathy for victims of terrorism. I was at the Pentagon on 9/11. I understand what terrorism is. I did not suffer a loss personally, but I am not ambivalent to the emotional issue of terrorism. However, if there is anything we have learned about terrorism in the decade since 9/11 is that the terrorists win if we are willing to commit acts of legal subterfuge to attain an end that feels good.

The rule of law requires more than that. We have a federal constitutional structure, and we as a country have chosen to live within the bounds of international law. Sometimes respect for both produces outcomes we might not otherwise like. That is an unfortunate by-product of living in a society that cherishes the rule of law.

Senator Runciman: one of the witnesses referenced the difficulty of enforcing judgments. In your submission you mentioned US$19 billion. The earlier witnesses said "yes, but." I do not know if you were here for the testimony.

Ms. Young: I was, and I have a "yes, but" to respond to the "yes, but," if I may. Those moneys have been recovered from the United States government, not from the countries that committed acts of terrorism against the victiMs. If this act is truly aimed at deterring, there can be no deterrence if it is the Canadian government or the United States government that ends up paying awards to avoid diplomatic problems of what assets can be seized.

Senator Runciman: You are saying that in the U.S. experience no assets have ever been seized?

Ms. Young: I will not say that no assets have been seized from terrorists or supporters of terrorists. I have not found anything that unequivocal, but the large sums that have been recovered have been recovered from the United States government. Sometimes some of that money has come from assets that the United States government was able to seize from, for example, Cuba, but it was only because the United States government agreed to pay those awards in exchange for the plaintiffs agreeing not to pursue their claims against the states any further that those people ever got paid.

Senator Baker: It is a very interesting argument. I am sorry I did not read your submission before I listened to it, but I suppose I would come to the same conclusion. I believe it is inevitable that Canada will follow the lead of the United States and eventually establish a fund similar to that established in the United States; and if a judgment is successful, it is then left up to the state to recover the funds that were given out from this particular fund available in the United States.

Your argument is interesting. However, it has never been adjudicated, to my knowledge, in the context that you have outlined it, although there are some interesting factors. If we just deal with the State Immunity Act and the Criminal Code, the amendment to the State Immunity Act herein contained seeks to add a provision that will allow for one of the states listed that has committed, presumably, in our understanding, an act of terrorism, a criminal act, and then to not allow them to be immune from a civil action that is taken in a court in a province.

As you say right now, commercial matters, death and bodily injury are presently covered and are not subject to immunity under the State Immunity Act. Therefore this would simply extend an action to those nations or countries that have committed acts of terrorism.

In criminal law right now you have a surcharge at the end of a criminal proceeding. You pay. You have, as you admit, forfeiture. Those are federal laws that are administered in the provincial courts.

Could you not see a logical extension of that to include what has been done here to the State Immunity Act? Furthermore, which province would say that this legislation, this change to the State Immunity Act, is unconstitutional? The court cannot, on its own. It needs a reference. It needs an argument somewhere. Where would it come from?

Ms. Young: It could come from a defendant or it could come from a province. It could be a nation or it could be an individual. It could be a listed entity. It could be any of those: an organization, individual, or a state defendant. Realistically I think defendants will ignore these actions, but if they chose to defend them they could challenge the constitutionality of the act.

Senator Baker: If they choose to defend them, it puts them on the hook.

Ms. Young: Not necessarily. May I address a point you made earlier? I want to distinguish jurisdiction over commercial activities. The reason for Canadian courts having jurisdiction over foreign states in relation to commercial activities is that the international community has agreed that they will all be subject to each other's domestic jurisdiction when it comes to those kinds of matters; otherwise it would be very difficult to conduct business in a foreign state. In this case, the nations of the world have not agreed to subject themselves to the jurisdiction of domestic courts in relation to matters like this, as was confirmed on February 3 by the International Court of Justice.

Mr. Quayat: To answer Senator Baker's question with respect to criminal law, the criminal law has never been held by the Supreme Court to justify the creation of a civil cause of action, and in fact, in a decision called MacDonald v. Vapor, the then Chief Justice, in summary form, disposed of any argument that attempted to justify a cause of action created with respect to trademarks under the criminal law power. There is an easy piece of logic for that.

If Parliament could simply define causes of action in relation to the criminal law, then the power of the provinces over property and civil rights could be swallowed whole because, for example, battery is a crime. Battery is also a tort. There has to be recognition that the criminal law ends somewhere. To go to your example, a defendant is ordered to pay at the end of a criminal process because there is a conviction. This cause of action does not require a conviction. There is no prerequisite. This is why civil forfeiture is a smarter avenue to go if one really wants to seize terrorist assets.

For example, under Ontario's Civil Remedies Act there is no requirement of a conviction. As long as the Attorney General of Ontario can show there is a balance of probabilities to show a particular asset is connected to a criminal activity, it can be seized and later distributed to victiMs. In fact the act contemplates as one of its purposes the distribution of those assets to victims.

Senator Baker: You are questioning whether or not the exceptions to immunity of bodily injury and death are beyond the power of what is already in law in the State Immunity Act.

Mr. Quayat: I think what we would say —

Senator Baker: That is what you just said.

Mr. Quayat:  — to make it constitutionally respectful of the division of powers, one could as an example expand that waiver of immunity because that immunity only applies to activities that occur in the territory of Canada.

Senator Baker: I will be short, chair. I know you will cut me off.

You look at the case of Schreiber v. Canada. That is a detailed judgment of the Supreme Court of Canada on bodily injury as it relates to the State Immunity Act. They took the French and they said the French is different from the English and they made a judgment. The Senate here even changed the definition of "bodily injury" when we did the federal law-civil law harmonization. All of this has taken place, the Supreme Court of Canada has dealt with it in graphic detail, and you are here saying that what they dealt with, as far as bodily injury is concerned, really does not exist in law in the State Immunity Act.

Mr. Quayat: No. What exists in law in the State Immunity Act —

Senator Baker: It is not enforceable.

Mr. Quayat: Sure it is enforceable. If you, Senator Baker, were to take a walk and slip and fall in the driveway of the U.S. embassy they would have no immunity from suit for you suing in a provincial court for, among other things, negligence for not de-icing the sidewalk. The difference here is we are not suggesting that Parliament lacks the power to enlarge the withdrawal of immunity. That is absolutely within Parliament's power. However, creating the cause of action — and by the way the Bill as drafted does not insert it into the State Immunity Act — kind of creates this free-standing act that is untethered to the State Immunity Act. That is where you cross, in my view, the constitutional line between the power over sovereign immunity and intrusion onto the property and civil rights jurisdiction of a province.

Senator Baker: one final thing: It is not a separate act. It also incorporates it in the State Immunity Act; at paragraph 5, it inserts a provision after 6.1, and section 6 begins with the definition of bodily injury, death and so on. This is a continuation and it adds to the preceding provision. It is not a completely separate act. I thought about it when I was reviewing the legislation. Why would the government do this twice? They have created a separate act, yet they have put the same provision in the State Immunity Act. They are mirroring it. It is not just a separate act; it is part of the State Immunity Act.

Mr. Quayat: The portion inserted into the State Immunity Act is not constitutionally deficient. It is the creation of a cause of action that is constitutionally deficient. The drafters had to do both because withdrawing immunity does not create a cause of action. In fact, there is U.S. case law where they struggled with this very problem and that resulted in something called the Flatow Amendment. The point simply is that Parliament can do the provisions that are enacted under the amendments to the State Immunity Act. We do not question their constitutionality. They are within Parliament's power.

Senator Baker: Well, there you go.

Mr. Quayat: It is the previous paragraphs under "cause of action," which is not inserted into the State Immunity Act and simply exists as a free-standing federal tort, that is not constitutionally permissible, in our view.

Senator Baker: It is an interesting opinion. I do not agree with it, but it is excellent that you have made it.

Ms. Young: The first part that creates a cause of action is unconstitutional. The second part violates international law but is not unconstitutional. The state immunity issue is within Parliament's power to change domestic law there, but in so doing they violate international law.

Senator Angus: I would like to follow on Senator Baker's line of questioning. Ms. Young and Mr. Quayat, you have impressive CVs, which we have in front of us. I am curious about your colleague. Is it Mr. Brendan Green? Where does he work?

Mr. Quayat: He practises at a law firm known as Herbert Smith, and he is in his Paris office. He practises primarily in the field of international arbitration.

Senator Angus: I know Herbert Smith well. Their main office is in London, is it not?

Mr. Quayat: That is correct.

Senator Angus: You have made a big point that you are here as individuals, and you have clearly got passionate belief in your arguments. You have written articulate academic articles about this issue, and you have stated in the footnotes that "The views contained in this submission are those of the authors," — I assume Mr. Green as well — and "They do not represent the views of the authors’ current or past employers or clients." In other words, Mr. Quayat, you worked at White & Case, I believe, who are well known for representing many large interests in the Middle East, including some states and organizations that have been involved in the mysterious world of terrorism. Is that not a fact?

Mr. Quayat: That is correct.

Senator Angus: In any event, this led me to wonder, given, as I think, Ms. Young, you especially underlined your support of stopping terrorism and having redress in any way we can. Yet, this is not some quick little tract in the McGill law Journal. The three of you, from the U.S., Canada and the U.K., have gotten together, somehow — if I may I use the expression — to beat this drum or to drive this train. What motivated you to do that?

Ms. Young: We all went to the same law school at approximately the same time. I have expertise in tort law especially. Mr. Quayat has expertise in the constitutional division of powers especially, but also international law; Mr. Green, especially in international law. We got talking about this act and the issues that were not being discussed, because everyone can agree with its motives. We all identified probleMs. To me, at first it seemed quite redundant in that it is already open to victims of terrorism to sue in provincial courts in relation to acts of terrorism. It is more difficult than it would be under this act because it would require you to use the law of the state in which the terrorism occurred, but it is still a possibility. My initial thought was: Does this advance us anywhere? of course, once we realized the constitutional and international legal problems, we felt compelled to write about it from a perspective that we had not seen in any of the literature.

Mr. Quayat: To add to that, senator, this Bill has existed in various predecessors and various iterations. Interestingly, I note, having pulled the records of all the committee hearings where that Bill was considered, never once has Parliament invited anyone to discuss the potential downside, negatives, unconstitutional nature or issues with it.

Senator Fraser: That is why we are here.

Mr. Quayat: Well, we are here on the eve of what we expect will be the passage of the bill. I wonder if that is in time to fulsomely consider it. The point simply being that I believe deeply in respect for the Constitution and respect for our rule of law. Having experienced terrorism first hand — I was going to graduate school in Washington on 9/11; I was on my way to my first day of graduate school when the plane struck the Pentagon — we have to respect the laws and the processes that we have and the structures with which we live.

Some of my foreign friends marvel about some of these debates we have about federalism, especially in the recent context of the national securities regulator. A friend of mine who is a U.S. regulator said, "How can Canada have a system like this?" I said, "Show me another Western country that has a constitutional division of powers like ours, and then we will have a conversation about it."

There are complex issues here of jurisdiction and of constitutional division of powers. It would be easy to blow by them in a cause that is good, but someone has to be willing to stand up and speak for the division of powers as it stands.

Senator Angus: This is fine. I am comfortable with your answers. The common thread, I take it, is that you all went to the University of Ottawa law school, including Mr. Green?

Mr. Quayat: Correct.

Senator Angus: You are here; that drew you together. This is a profound legal issue, and you are here purely not representing any interests, no particular axe to grind. You found a legal, intellectual exercise that fascinated the three of you, all believing in the Constitution and passing legislation that is intra vires, not ultra vires or ultimately subject to attack. You have come at your own free will, at your own expense, to elucidate these issues and to give your views as to your belief that this law is unconstitutional on its face?

Ms. Young: That is right.

Mr. Quayat: That is correct.

The Chair: I have a supplemental on that. Mr. Quayat, I have to take exception when you suggest — unless I misunderstood you — that the work that we are doing here, as a Senate committee, that we would, in your words let significant issues blow by us. That is certainly something that we do not do. We are thorough and thoughtful. If you look at the process we are following here and at the past work of this committee, I think it would confirm that.

You are an effective litigator, I am sure. You certainly present yourself well. You are articulate. You make the point that many issues are arguable; there are constitutional issues. I cannot think of too many bills that have come to this committee on which there has not been an argument made that there is a constitutional issue. There is nothing new about that. Lawyers are trained to make arguments and to represent clients. We understand that. I understand that and you understand that. However, it is not the point that arguments can be made; it is not the point that allegations of constitutionality can be raised. It is ultimately whether or not they are valid. I can assure that you we will consider that seriously.

On the one side, we have evidence from the ministers responsible for this Bill that the constitutionality of this particular matter is not in question. That is their view. You have raised a contrary position. That happens many times before this committee. However, I want to make it clear to you that we would never blow by any issue and disregard the responsibility that we have to consider seriously the implications of matters that come before us.

We have heard the testimony from the previous witnesses. Ms. Basnicki has dedicated a significant part of her life to having this portion of the Bill brought forward. However, that in itself is not the beginning and the end for us. As extremely sympathetic as we would all feel, we have to make a decision. We have to decide whether the issues she raises and whether the opinions she raises from her organization are valid, if the opinions we are receiving from the government are valid, and consider the points that you raised forcefully and in an articulate manner. That is exactly what we will do.

Not to repeat myself a third time, but I am proceeding to do that, we do take this seriously. We will not blow by any issue. What we have to do is weigh the arguments made on either side of an issue. You certainly raised some on the other side very strenuously.

Mr. Quayat: I apologize if that was the interpretation you put on it. I merely attempted to suggest that, based on the review of the evidence publicly available to me on various websites and on the Parliament's website, the specific issue of the constitutionality of the cause of action provision is not something that has been discussed in committees. I was merely pointing that out. To the degree that there may be some surprise about these issues, it has not been raised in this direct a way, and I am grateful that it is being raised today.

The Chair: I would say to you, and remind all of us — although around this table we do not have to be reminded — this is the first time this committee has considered this bill. This is the first opportunity we have had to hear the constitutional arguments you have raised, and we thank you for raising them. We truly thank you for raising them. We will give them careful thought and consideration, as we would with all matters that come before us.

I think enough said about that. I appreciate your raising the issues you have here.

Senator Angus: The Leader of the Opposition has his hand up.

Senator Cowan: If I could pursue that. I was here, I think, for the testimony of the two ministers and for the officials, and I do not recall this being raised with them. I thought you were saying that you had an opinion that the ministers had opined that this was constitutional. I do not recall that being raised with them or with the officials, but I may have missed that. I certainly was not here for a number of the other hearings the committee has held since then.

The Chair: We did not request and did not receive, as you refer to it, an "opinion" on the constitutionality of this matter. There is no question, from the evidence we heard from them, that they believe it to be lawfully enforceable, and that would include the constitutionality of this bill.

Senator Cowan: I will review the evidence, but I do not remember those issues being discussed with the officials. The points Mr. Quayat has made here, whether they are valid or not I do not know, but they are certainly worth considering. It is new to me, and I was not aware of that issue, from my hearing and subsequent reading of the testimony of the ministers or the officials. I may be mistaken.

The Chair: I would think that if there were issues of the constitutionality of this bill, it would not be before us. In any event, I noted your comment and we will consider it.

Senator Fraser: As the deputy chair of this committee, and the sometime chair of it, when this Bill came before us in previous iterations, I would like to confirm that as soon as we became aware that you had raised constitutional concerns, we put you on our witness list.

When this bill, in its previous versions, has appeared before this committee, there has been no indication from anyone that these concerns existed. We did not sort of scratch our heads and say, "Let us create a constitutional question that we can then invite someone to talk about." This is the way it works. If you become aware that there are people who have serious constitutional questions, you call them in to hear from them.

It is true that we did not ask the ministers directly when they appeared before us. They had a grand total of one hour to discuss all nine parts of this bill. That was one part we did not get to. We will, however, be hearing again from the officials later this week, and I think we can be sure that we will be asking them for their view on this particular line of argument. I would not wish anyone to take away the view that, as the chair says, this committee "blows by" any serious issue of law.

Mr. Quayat: If I can just say that was not my intention in communicating that. I am not suggesting that Parliament ignores issues. I am merely saying that the issue has been raised. We are grateful to be here today to raise it. That is all I am suggesting.

The Chair: That is fine. Let us leave it at that. We are all trying to do a job, and we want to deal with the facts we have. Enough said about that issue.

Senator Lang: I would like to go back to Ms. Young's initial statement. I want to quote this:

In fact, the United States stepped in to pay amounts owed to victims by countries like Iran when it became clear that these countries would not recognize U.S. court orders to pay.

I want to pursue that to some degree, because you indicated also, upon further questioning, that — I am not sure how the process worked — the United States government did receive funds from Cuba in one particular situation, and obviously paid it out. My understanding is — and correct me if I am wrong — regarding the results of the suits that went on with Libya, eventually there were settlements for those individuals who were involved, the victims, and the victims' families that were involved in that situation.

I do not quite understand why you say that they stepped in to pay amounts, but then you did not go on further to say that monies were made available. Maybe they were the interim step that had to be done in order to get the money, but the fact is that it did result in some compensation.

Ms. Young: I am not familiar with all the intricate details of the claims against the state of Cuba and the state of Iran. The United States had seized some Cuban assets, but not necessarily in relation to the terrorist acts that had taken place. The lawsuits under the American legislation related to shooting down planes over international waters. There was an attempt to recover funds from Cuba. Cuba, of course, refused to pay. The Americans ultimately agreed to pay, out of seized Cuban funds, but there was no connection between those funds and the terrorist acts.

In the case of Iran, the money came directly out of U.S. Treasury funds. There were no seized Iranian assets that could be drawn on. Part of the problem in the case of Iran, perhaps also in the case of Cuba, although I am not sure, was that the plaintiffs were attempting to seize diplomatic assets. In the case of Iran, it was property that used to be a consulate or some sort of diplomatic property. The United States feared that if the plaintiffs were successful in being able to get access to that property, Iran would then retaliate against diplomatic property of the United States in Iran. There are international legal principles that protect diplomatic property.

All that to say that if it were the case that the United States had seized Cuban assets and then passed that money on to victims of Cuba's terrorism, that is all fine and well, but the only reason the victims ever recovered was because the Americans agreed to pass that on. They could not go through the tort process in the courts to get at that money. Furthermore, you have the Iran example, where there was no connection to seized Iranian assets. It was simply U.S. Treasury funds.

Senator Lang: You never mentioned Libya once in your answer, and that was one of the issues brought up by previous witnesses. The fact is that there was money paid out, and it was as a result of at least an initiation of a court case in the United States, so something worked somewhere.

Mr. Quayat: With respect to Libya, the funds that were paid to the victims of Libya were the result of a state-to-state settlement between the United States government and Libya. There is an argument to be made that because there were outstanding lawsuits in the U.S., that pushed a diplomatic solution to pay out the victiMs. However, the court process itself did not lead to a judgment that was subsequently enforced.

one could say that the pressure of domestic lawsuits helped move that process down the field and created a settlement. one could equally say that the Gadhafi regime, attempting to get out from under, in terms of sanctions, and wanting to recommence international commerce saw a benefit to paying U.S. claims, which the U.S. government had advanced independent of the lawsuits. The U.S. had made a claim for diplomatic protection, saying it was entitled to claim on behalf of nationals.

Senator Lang: You are obviously a good litigator, because you have me confused. I want to go back.

We have some legislation being presented here. It has been available for quite some time and talked about for quite a few years. We are finally coming to a conclusion, hopefully, down the road here.

It seems to me that it brings us a step toward pushing the various sovereign states, if you wish, to come to some conclusion for the purposes of this type of situation, and hopefully sets some standards where, in some cases, it might not even happen. Why would you say we should not pursue something like this? You have not given us an alternative other than for me to talk to Alberta or Ontario.

Mr. Quayat: Simple forfeiture is a good option. It is certainly one that should be considered. Sovereign immunity is a fundamental international law concept. one thing that you have to be mindful of, I think, is that international consensus on this issue has been difficult. The question becomes, does Canada want to be out in front of an attempt to push diplomatic consensus or be in lockstep with it?

It is interesting that no country of the European Union has to date promulgated such laws. Interestingly, Europe is not exactly a continent known for not being on the forefront of human rights developments. British courts did Pinochet in respect of individual sovereign immunity. The fact that there is a lack of international consensus shows that sovereign immunity, which is one of the longest-standing concepts in international law, in fact at the core of international relations, is something that vexes states. If as a policy choice Canada wants to be out in front of that, leaving aside domestic constitutional issues, that is a policy choice it can make.

Mr. Marceau: I have three quick points, Mr. Chair. First, there seems to be a belief somehow that the State Immunity Act, the theory, the concept of state immunity, has no exception. If you look at the act from sections 4 to 8, if I remember correctly, it states it is not a wall-to-wall concept. There are indeed, and Senator Baker alluded to this, exceptions to that, not only in commercial cases but also in bodily injury and death. That is the first point.

Second, to respond to Mr. Quayat's point that the EU has not acted yet, so what? What is wrong with Canadian leadership? What is wrong with Canada saying that is an important case? We are dealing with an important issue here, with terror. You have heard from Ms. Basnicki. The victims are looking for their day in court. They are looking for tools to fight this because now they are alone. They feel helpless, and this Bill gives them something so, you know what, I am going to fight this. I am going to fight this tragic injustice that was done to me and my family, and that is something very important.

Third, again to take Mr. Quayat's point, an argument can be made that the Lockerbie situation pushed Libya towards settlement. Yes, there is an argument to be made, and that is the argument I present to you today.

Ms. Young: I do not want to give the impression that we are saying no one could ever benefit under this act. There could be well-informed plaintiffs who understand all the hurdles they face who could conceivably obtain a finding of liability and a court order that could ultimately actually be enforced. My concern is there are a number of both hurdles in terms of actual litigation and these international and domestic legal hurdles that could actually result in causing victims a lot of trouble, a lot more trouble than they anticipate in pursuing their claiMs.

They are spending the money to pursue justice here; so if they get good legal advice and only pursue claims where the chance of recovery is strong, then by all means that could do them some good. It does not, of course, address the constitutional issue. This is not the first time it has been raised. The Library of Parliament's legislative summary on this piece of legislation does go into some detail about potential constitutional arguments.

The Chair: Thank you for that. Senator Munson, you have a brief supplementary.

Senator Munson: How big is the financial hurdle? If you are talking a well-heeled family with connections and money, that is one question. However, when it comes to 9/11, it is a different situation.

Ms. Young: As any lawyer will tell you, it depends. It will depend on a great number of variables — who the defendant is; what the facts are; whether the potential evidence you would need to bring needs to be translated; whether you need to bring witnesses to Canada from abroad; whether you have a listed entity involved, which adds an extra layer of things that have be proven. There is no way of knowing, but Mr. Quayat could tell you that it is rare to ever get anything through a civil litigation process for less than tens of thousands of dollars.

The Chair: I am not sure it is possible to sue someone for running into your car for less than $10,000.

Ms. Young: That is why we have insurance.

The Chair: If the cost of litigation determines government policy, then we have a problem.

[Translation]

Senator Dagenais: I have listened to what has been said around the table, and I have read your brief. I will make a summary comment, and then I would like to hear what you have to say.

I understand that if the government had to compensate victims, first, as you mentioned, the states promoting terrorism should be clearly identified and, second, they should not be able to benefit from their immunity, be prosecuted and should have their assets seized. It is something I thought about; it may seem radical to you, but I would still like to hear your thoughts on it.

[English]

Ms. Young: This is a question about seizing assets. Would you like to answer it?

Mr. Quayat: Senator, a couple of thoughts there. The first is that the Bill creates a cause of action in respect of listed entities under the Criminal Code and then listed states that may or may not be added at some point down the road.

With respect to the listed entities, most of those entities have been listed for 10 or so years now. Query whether in that 10 years they have gotten wise to the fact that they are listed and have moved assets offshore. Similarly, without prejudging who might end up on the list, those countries are likely to have been or currently are under sanctions regimes, which may or may not complicate trying to track down assets.

In terms of if the government makes a payment to terror victims, you are starting to wander potentially into an area of law where, first of all, in terms of civil recovery, we prevent double recovery so a victim cannot collect twice for the same civil wrong. If the government were to make a compensatory payment, there is a question as to whether a separate third party would have to make payment if they have been made whole for the loss, and then that opens an issue of law called subrogation and whether the government could take on the claim on behalf of the victims, which, if one thinks about it, is in effect what we are suggesting by using the civil forfeiture devices as a technique to target terrorism and terrorist entities. The government is far better equipped with resources, intelligence information and other intellectual assets to know where foreign governments and foreign entities might be hiding money. We have FINTRAC, for example.

Leaving aside vindication and the symbolic role that a civil judgment may give to victims of terrorism, if truly choking off terrorist financing is the goal, it seems to me that there are more effective devices than civil lawsuits to deter future terrorist attacks and choke off the lifeblood of terrorism.

[Translation]

Senator Boisvenu: Mr. Marceau, thank you very much for being here this evening. We have not seen each other for quite a while. I would first like to congratulate you for your commitment to Israel, and especially for defending a Bill that we think may be beneficial in the medium term.

As Senator Fraser said, we know that Israel is often a target of international terrorism. Do you think this Bill might have some impact on the particular case of Israel, and the terrorism it has encountered for years?

Mr. Marceau: The Bill is intended for victims who have, and I quote, "...a real and substantial connection to Canada."

For example, if you mention the case of Israel, you may think of a Canadian citizen or permanent resident of Canada who is affected by a terrorist act abroad; so in Israel, this would be the link that I could see with the Jewish State. Otherwise, the Bill deals with actions that have taken place here in Canada or that have a real and substantial connection, and that may affect Israel or many other countries that might also be victims of terrorist acts.

Senator Boisvenu: Are there a lot of Israelis who have dual Canadian-Israeli citizenship?

Mr. Marceau: There is a large community of Israelis in Canada, especially in Toronto. I do not know the percentage, but there are 370,000 people in the Jewish community in Canada, with 93,000 of them in Montreal, which is closer to you. I do not know how many people have Israeli citizenship.

Senator Boisvenu: As you know, I am not a lawyer, but a victims’ rights advocate. We are aware that the bills adopted by the federal government are, in large part, challenged under the Constitution by the individuals affected, and often it is the criminals and not the victiMs. If Bill C-10 is contested one day, we will not be surprised. The Supreme Court will decide whether this Bill is unconstitutional or not. We may be in for some surprises.

Nevertheless, international law is evolving. Terrorism is one way that crime has become globalized. The first type of globalized crime is terrorism, which has spread. So we need to give the victims tools to go to another country and have the parties held responsible. As we said earlier, the victims do not necessarily want to be compensated; they want support from the country sheltering such a group of criminals responsible for the death of their husband, their sister, or their father. Canada needs tools to ensure that victims are supported.

My other thought — you spoke about it earlier — is how can we let a group of victims work on a Bill for five or seven years only to tell them as it is about to be adopted that it is unconstitutional? How can that situation come about?

[English]

Ms. Young: We published our article in 2009, so it is not like we did not raise the issues about the constitutionality of the law a number of years ago.

Let me just address your question about victims wanting their day in court. I think if I heard you correctly, you said they may not care so much about the financial aspect of their claim; they may simply want their day in court.

Again, if that is what they want and they have good legal advice, then more power to them. Especially I think when it comes to foreign defendants, if I were a foreign defendant, I would simply ignore any action filed in a Canadian court against me. If I am a foreign state, I would ignore it; if I am a foreign individual, I would ignore it; if I am a foreign organization, I would ignore it. That means you get default judgment entered against you in a Canadian court. I do not know whether that would count as a moral victory to victims, to simply have a court rubber-stamp their claim because a defendant failed to show.

If a defendant did show and there was an actual legal contest over evidence and the victims prevailed and had a finding of liability, even if they could not enforce that judgment, I can understand there would be symbolic victory in that. In fact, I have a future research project that considers the pluses and minuses of using tort law to seek those kinds of symbolic victories.

I have a feeling that what will happen in relation to foreign defendants is the lawsuits will simply be ignored, and then it will be a question of default judgment and trying to chase down assets, but you will not actually ever deal with the evidence in court.

[Translation]

Senator Boisvenu: But what recourse is left for victims to get a state found criminally responsible for the death of their loved one? What recourse do they have?

[English]

Ms. Young: I am not sure I know what to tell you. Other than what we have suggested by way of funds through the provincial acts that allow seizure of claims, I cannot change the Constitution. I cannot change international law. I cannot change the fact that foreign states are sovereign and do not have to recognize —

[Translation]

Senator Boisvenu: Do you agree that they need to be developed?

[English]

Ms. Young: As a matter of international law, should we seek to have more foreign treaties that would require the reciprocal enforcement of judgments? Absolutely. Treaties would be a matter for our foreign affairs department to pursue. Imagine, especially when it comes to the United States, who will we put on this list? The equivalent American list has four state names on it: Syria, Cuba, Iran and Sudan. North Korea is not on it any longer. The point being, it will only be pariah states, states with whom we have no serious diplomatic relations that will ever be put on this list. We are only really talking about them anyway, and of course they will not pay, and they will likely not participate.

[Translation]

Mr. Marceau: Mr. Senator, my colleague Mr. Quayat just said that the choice was to use forfeiture, where the state steps in when a victim does not have the means to have the assets of the states involved seized. But if you will look at page 7, clause 8 allows a successful party to request help from the departments of Finance and Foreign Affairs to identify the property of the state or entity that has been found guilty or that lost in court. So the victim is not alone and would potentially have the government’s help. It is very different from what Mr. Quayat said a little earlier.

[English]

Mr. Quayat: Mr. Chair, if I could just clarify with respect to civil forfeiture laws, the act includes a provision for the federal government to assist victims in locating assets. The civil forfeiture provisions, however, actually give the Attorney General — in this case, Ontario — the power to actually seize the asset and take control of it, something that the draft Bill before you does not contemplate.

I am not suggesting that there are two cross purposes here. It might very well be helpful to have the assistance of the federal government in locating certain assets, but the provinces have the power, if an asset, for example, is in Ontario, to notify the Attorney General of Ontario, and if there is a link to criminality on a balance of probabilities, the Attorney General can seize the asset.

The Chair: On that point, what we are talking about here would be a judgment that is registered against a state, and if there are assets in the jurisdiction that could be seized, it is on the basis of that judgment that they would be seized. The judgment is in favour of the plaintiff. It is not the Ontario government; it is the plaintiff. It is the plaintiff that would seek to recover and would not look to the Ontario government to seize the asset. The plaintiff would exercise their right to seize the asset to apply against the judgment, would he or she not?

Mr. Quayat: If a judgment is obtained, absolutely. What I am trying to suggest as an alternative, leaving aside the vindication and the symbolism, is that if one is trying to seize the assets of groups involved in supporting or materially aiding terrorism, a way to short-circuit that money in the short term and immediately without the need of a civil judgment is to make an application for civil forfeiture in a province.

I am not suggesting you cannot have both, leaving aside my concerns on other issues, but civil forfeiture in a way is a speedier mechanism than civil litigation. Particularly with reference to the Ontario act because the Ontario act speaks to the power to distribute the money to victims.

The Chair: It is an alternative, but this Bill would provide a two-pronged approach to the issue. I understand your point.

Senator Cowan, I think you had a comment.

Senator Cowan: Yes, it is more a comment than a question. I think all of us would like to do in the most effective way what this Bill aims to do. I think what you have drawn to our attention today is that there are some concerns that expectations as a result of the passage of this Bill may exceed the capacity of us as parliamentarians, the government as the government, the system as a system to deliver on what we would like to achieve for victims of terrorism. Indeed, we talked about perhaps expanding it, not this time but on another occasion, to victims of torture and other heinous offences.

I think it is important for us to manage expectations here and be careful about simply passing and Bill and saying, "That is fine; if you are a victim of terrorism, torture, genocide or anything else, do not worry, Parliament has passed the Bill and you will achieve satisfaction because you have been wronged." We are saying here that there may be a gap between the legitimate expectations of people who are watching and hearing what we do and will do on this — and there is no opposition to what is being done here. However, let us not pretend that we are doing something that we are not. Let us be realistic about what it is that we are doing, as laudable as that is, and recognize that we may have to revisit this if, in fact, we have fallen short of people's legitimate expectations. That is all I am saying.

The Chair: Senator Cowan, if I could, to that point, there are realities that this Bill would entail. That is clearly understood, and there are significant issues, if it were enacted in a law, as far as providing plaintiffs with recovery. That is understood, and you have highlighted that.

It is important to remember the previous witnesses that we had before us, in particular Ms. Basnicki from the Canadian Coalition Against Terror and Ms. Saperia. They described all of those limitations clearly. They recognized those issues and identified them for us, but they still have the strong will to see this proceed.

I do not think there is a suggestion that there is a smoke-and-mirrors effort here. It is well understood by those who are proponents of this Bill that there are issues.

Senator Cowan: I am not opposed to the Bill at all, and were it a stand-alone bill, I would happily support it. I have some questions about whether I can do it the way it is.

The Chair: Thank you very much. That concludes our time with this panel. It was extremely helpful to us. You have certainly fleshed out issues we have to give serious consideration to, and we thank you very much for doing that. You presented your arguments extremely well.

Honourable senators, we will meet tomorrow morning at 8:30 to continue our discussions of Parts 2 and 3 of Bill C-10.

(The committee adjourned.)