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Proceedings of the Standing Senate Committee on
National Security and Defence

Issue 5 - Evidence - Meeting of March 31, 2014

OTTAWA, Monday, March 31, 2014

The Standing Senate Committee on National Security and Defence met this day at 2:02 p.m. to study the policies, practices and collaborative efforts of Canada Border Services Agency in determining admissibility to Canada and removal of inadmissible individuals.

Senator Daniel Lang (Chair) in the chair.


The Chair: Welcome to the Senate Standing Committee on National Security and Defence for Monday, March 31, 2014. Before we welcome our witnesses, I would like to begin by introducing the people around the table. My name is Dan Lang, senator for Yukon. On my immediate left is the clerk of the committee, Josée Thérien; on my right are the Library of Parliament analysts assigned to the committee, Holly Porteous and Wolfgang Koerner.

I would like to go around the table and invite the senators to introduce themselves and state the region they represent, starting with Senator Mitchell.

Senator Mitchell: Grant Mitchell, Alberta.

Senator Campbell: Larry Campbell, British Columbia.

Senator Day: Joseph Day from New Brunswick.

Senator Black: Doug Black from Alberta, and I'm pitching for Hugh Segal from Ontario today.

Senator Dagenais: Jean-Guy Dagenais, Quebec.

Senator White: Vern White, Ontario.

Senator Wells: David Wells, Newfoundland and Labrador.

Senator Beyak: Lynn Beyak, Ontario.

The Chair: On December 12, 2013, the Senate adopted the following study reference, namely that the Senate Standing Committee on National Security and Defence be authorized to examine and report on the policies, practices, and collaborative efforts of Canada Border Services Agency in determining admissibility to Canada and removal of inadmissible individuals; that the committee report to the Senate no later than December 31, 2014; and that it retain all powers necessary to publicize its findings until 90 days after the tabling of the final report.

Colleagues, we have had a number of witnesses before us on the subject of our study. Canada welcomes 100 million non-Canadians each year — approximately 90,000 people per day. CBSA, which is currently just over 10 years old as an independent organization, is responsible for entry into Canada and makes the final determination to allow individuals in at our borders. From the perspective of national security and securing our borders, they are the front line.

We have heard about the significant number of persons with outstanding immigration warrants and enforceable removal orders, a number that could be well over 50,000. This is a staggering number that should concern each and every Canadian.

Colleagues, as we continue our studies on determining admissibility and inadmissibility and CBSA's role in the removal of individuals, we are pleased to have with us two seasoned immigration professionals: Mr. Lorne Waldman and Ms. Julie Taub.

Before I begin with the witnesses, I will formally recognize the new member of the steering committee, Senator Wells, who joined the steering committee along with Senator Dallaire, just so all members are aware of that.

Mr. Waldman has practised immigration law since 1979 and is currently the president of the Canadian Association of Refugee Lawyers. He has handled many high-profile cases and serves as a special advocate in relation to security certificates. Ms. Taub has practised immigration and refugee law and served previously as a member of the Immigration and Refugee Board's Refugee Protection Division. I think I got that right.

Julie Taub, Immigration and Refugee Lawyer, former member of the Immigration and Refugee Board of Canada, as an individual: Yes.

The Chair: Mr. Waldman and Ms. Taub, welcome to the committee. I understand you each have an opening statement. We have one hour for this panel. Please proceed.

Ms. Taub: It is also a coincidence that Mr. Waldman and I both went to the same high school in Toronto.

The Chair: How small the world is.

Senator Day: When was that?

The Chair: Order.

Ms. Taub: I would like to thank the chair and members of the committee for inviting me to appear before you today. The brief introduction I was going to give of myself was already given; it is not necessary to elaborate any further.

The issues that are at stake, on which we are testifying, are very serious as they compromise the integrity and security of Canada as a sovereign, independent and democratic country.

I will quote briefly from the Auditor General's comments, because I think they're worth quoting.

The Auditor General in 2013 that the controls to prevent people from illegally entering Canada are often not working as intended and, as a result, some people who pose a threat to Canadians' safety and security have succeeded in entering the country illegally. He went on to say:

It's very important for the safety of Canadians that controls at the border work as they are supposed to. . . I am very concerned that our audit found too many . . . examples of controls not working.

Mr. Ferguson also said:

Though the Canada Border Services Agency has made significant progress in some of its efforts to detect high- risk travellers, it often does not get the information it needs to identify those travellers before they arrive in Canada. Furthermore, even when the Agency has the information, we found that the controls do not always work. We also found that the RCMP does not know the extent to which it is successful —

Or, I will add, unsuccessful. Mr. Ferguson continues:

— in intercepting people who enter the country illegally between ports of entry.

Here I would add ``along our Canadian border with the United States.'' He continues:

Though it is not the first time we've raised these issues, border controls are still not working as they should.

From there, what is that issue? Well, Canada currently cannot effectively control its own borders — that is, decide who may enter the country and ensure that, after they have entered the country, they leave as stipulated in their visas or as required by the Immigration and Refugee Protection Regulations.

Temporary resident visa holders are comprised of foreign students, foreign workers and tourists who need visas to come into Canada as visitors.

Due to a lack of or inadequate screening and security checks prior to entry, thousands upon thousands of inappropriate people of criminal and terrorist backgrounds have infiltrated into Canada at all levels of society.

Why does that happen? First of all, Citizen and Immigration Canada, CIC, does not monitor the half a million temporary resident visa holders, as per the CIC statistics from 2012 that I have distributed to you. They have been distributed to all of the members. It is a one-pager.

Altogether, you can see that we have roughly 500,000 foreign workers and students. They're not monitored after they enter into Canada. For example, we know who comes in, but are the students attending university? They might get two, three, four-year study permits. Have they failed? Have they left? Are they working full-time even though they're only authorized to work part-time with the off-campus work permit? Nobody knows. Universities are not obliged to report no-shows or people who have quit their programs or who have been told to leave.

The same with foreign workers. Do they show up at their place of employment? Employers are not required to report back to immigration if a foreign worker has shown up or if they have quit or have been fired. What happens to them afterwards? No one knows.

As we know, there are no exit controls. CIC knows who comes in, but thereafter no one knows where they are. Have they left? Also, there are no compulsory criminal or security background checks on foreign students and workers or visitors who require visas.

Although there are now biometric requirements for some 30 countries — and I believe the list of the countries that require biometric checks has been handed out to you — biometric checks are just fingerprints and photos. They do not include security or medical background checks. It is just to make sure that, if somebody steals your passport with a visa in it, they can't use your visa to come into the country. It doesn't mean that there's been any screening done other than that.

There is inadequate security screening at visa offices. Approximately only 10 per cent of permanent resident applicants are interviewed. Although criminal background checks are required for permanent residence applicants, this does not include security background checks. That is, are they affiliates, members or supporters of terrorist groups? That is not screened.

This is a serious concern since a significant portion of Canada's immigrants, foreign nationals and foreign students come from terrorist-producing countries, such as Pakistan, al Qaeda; Lebanon, home of Hezbollah; Afghanistan, home of the Taliban; Iraq, al Qaeda; Somalia, home of al Shabaab; and Saudi Arabia, home of the school of Islam known as Wahabism, which is a very rigid and strict, puritanical form of Islam that is also very violent and anti- Western.

It is interesting to note that Canada has only two countries on its official terrorist list, and I have handed you page 3 of the article, ``Backlog delays removal of `foreign criminals.''' On the list, as of September 7, 2012, Canada listed Iran and Syria. That's it, and not the countries I have mentioned, for some reason.

We all know that foreign criminals, convicted terrorists and war criminals ordered deported succeed in delaying their deportation for years — for decades — or even evade deportation altogether. I have given you a lengthy list of examples — I think you have them — of convicted criminals, et cetera, who managed to avoid deportation through endless appeals. I believe that was distributed to everybody beforehand, so I won't go through them. Just to mention a couple of the highlights, there was Mahmoud Mohammad Issa Mohammad, a convicted Palestinian terrorist. It took 27 years to deport him from Canada. There is currently a woman called Sandra Gordon. W5 did a report on her in February 2013, which is included. I was part of that documentary. She was first ordered deported in 1976, and she's a career criminal. To this date, in spite of all of the investigation done by W5 and all of the inquiries made, she's still in Canada. I won't go into any more; I will let you look at that list.

Why is it so difficult to remove foreign criminals? I have also given you the chart from the Auditor General's report of 2008, which looks like a maze. It is such a complex system of detention reviews and appeals and hearings, which would account for one of the reasons that it is difficult to remove foreign criminals.

You have the article from March 13, 2014, published in The Star, interestingly enough, ``Backlog delays removal of `foreign criminals.''' It explains why it takes so long to get them out of the country.

Another peculiarity is that Citizenship and Immigration Canada allows people who are deemed inadmissible to enter into Canada to contest their inadmissibility. They are detained, and then they will have a detention review hearing. Then they will have an admissibility hearing, instead of simply not letting them come into Canada.

One of the most worrisome things that happened recently was the cutbacks to CBSA, the cutbacks in immigration personnel, while simultaneously announcing increases in the number of foreign students and foreign workers and in PR applications. How in the world are adequate screening or security checks supposed to be done when we reduce the number of the very people who are responsible for this — a 15 per cent cutback?

I would recommend doubling the Canadian visa personnel at all visa offices abroad, ensuring that only Canadian citizens screen all applications and not relying upon the recommendations of non-Canadian staff who are employed at the visa offices.

Canadian visa officers must be the only decision makers. I would also recommend doubling the number of CBSA front-line officers in investigation, not only reversing the cutback but doubling the number. Yet, how can we afford this since the government is reducing costs and trying to balance the budget? Increase all visa application fees. Canadian taxpayers should not be subsidizing these applications for either temporary resident visa holders or permanent resident applications. Double the fees.

Another recommendation: Implement a permanent resident smart card for all permanent residents that they must swipe when they enter into the country and swipe when they leave the country so that CIC doesn't have rely on honour reporting of whether they have been in Canada long enough to keep their permanent resident status and whether they live in Canada at all. Swipe when you come in; swipe when you go out. It is not a very difficult technology. Smart cards have been around for, what, 50 years? All the athletic clubs have them.

I would also implement compulsory exit controls for all temporary resident visa holders so that you know when they leave and if they have left or haven't left. You should have a database that's created when they come in and are issued a visa. Let it be a smart visa. Not only biometrics are in the database, but the dates of entry and the dates they are supposed to leave. If this visa is not swiped before or on the date of expected departure, there should be some alarm or some notice that pops up on the computer saying, ``Joe Small has not left the country. Let's go find him.''

Until Canada can get its act under control with security screening and deportation of foreign criminals and convicted terrorists, I would recommend that you reduce by at least 50 per cent the number of foreign students and foreign workers coming into Canada because according to Canada's own watchdog on national skills mismatch it's a myth. The Parliamentary Budget Officer just reported on March 25 that there is little evidence to back up those claims that there is a severe labour shortage in Canada. That was handed out to you as well.

I would also implement compulsory monitoring of foreign students and workers in Canada once they have entered, to make sure they are where they're supposed to be, they are working where they said they are going to work, they are at the university or college where they're supposed to be, and not just rely on an honour system that has clearly failed.

I would also recommend not issuing a two-, three-, or four-year study permit to any foreign student anymore. Previously Citizenship and Immigration Canada issued only one-year study permits, which the student was required to renew on an annual basis. When they were required to apply for a renewal they had to demonstrate that they had successfully completed their first year and then their second year of study, that they had paid their fees and they were continuing. Now they are issued two-, three-, four-year student visas and nobody really knows if they are at the institution where they're supposed to be.

I would also recommend increased security for foreign workers and foreign students who are applying from terrorist-producing countries.

I would also recommend changing the law so those who are deemed inadmissible for reasons of security — war crimes or misrepresentation or criminality of any kind — are removed from Canada before they enter, so they not be allowed to enter into Canada and be detained for an admissibility hearing. If they want to challenge their inadmissibility, let them challenge their inadmissibility from outside of Canada.

Those are my comments and recommendations.

The Chair: Thank you, Ms. Taub. You definitely have a list of recommendations. I would like to move on to Mr. Waldman.

Lorne Waldman, President, Canadian Association of Refugee Lawyers: I was going to address some other issues but I think perhaps, given what my colleague said, I might just want to comment on some of her points.

I have been doing immigration law for over 30 years, and when you deal with issues of security there's really a cost- benefit analysis. Obviously we don't have unlimited amounts of funds to spend on any government program, and so it's just impractical to security screen every person who wants to enter into the country. A good portion of our economy depends on tourism. Universities depend on foreign students for a significant portion of their income. Despite my friend's assertions that there is no labour shortage, I can assure you that my colleagues who work out West have been able to establish on numerous occasions that there are huge and significant labour shortages in some of the Western provinces and that employers are having significant difficulties finding certain types of skills in Fort McMurray and many other cities where the economy is booming.

It's simply not practical to screen every person who comes into the country, which is precisely why the security agencies create profiles and select who should be screened and who should not be screened. To give one example, do we have to screen every 75-year-old grandmother who wants to visit her grandchildren? I would suggest not.

Obviously, if we want to ensure that nobody gets into the country then we could introduce security screening and criminal checks for everybody. However, we would effectively be sealing our borders, and this would have a dramatic impact on our economy, on our tourism, on the universities who want foreign students to supplement their income and on foreign employees.

There has to be a reasonable balance. I am not necessarily saying that that balance has been met. I don't know enough. One of the things you need to consider is whether to hold an in camera meeting with the people who do the profiling and discuss with them how the profiling is done and whether there are more efficient methods of profiling. Those are the kinds of things that are not public, and they are not public for a reason, but to suggest that we have to screen everybody is simply impractical.

My friend cited the cases of numerous people who took years to deport. Certainly there were issues with the efficiency of the deportation process. I would suggest that quoting statistics from 2008 and 2009 is hardly helpful to the committee now given all the reforms that have been introduced by the government, many of which I don't agree with, but they're on the books. The right to appeal, which was one of the reasons for so many delays, has been eliminated for most people convicted if they have been sentenced to a crime and get six months or more. The number of people who have access to appeal is significantly reduced. To suggest today, in 2014, that this is still a problem is inaccurate.

One thing that might be important would be to discuss with CBSA, possibly in camera, how they prioritize deportations. Like everything, every government department has limited resources in terms of how much money they can spend. The amount of money that CBSA spends on deportation has been significantly increased over the years but still it is a limited amount. I would suggest that instead of spending the money arresting, as we have seen in our office, 75-year-old grandmothers and sending them back even though their whole family is in Canada, it might be a more useful expenditure of government funds to spend the money trying to locate the people who have criminal records.

The reality is that it's a lot more difficult to locate someone who doesn't want to be located. and it costs more money. Maybe the money is better spent on that than on doing the easy deportations. I think there has been too much focus and concern on statistics and saying, ``Look, we've managed to increase the number of deportations over the years,'' as opposed to the type of deportations. You might want to look at that issue with CBSA.

I want to talk to you about a few other things. The first point I want to make is that there is a significant problem because of a lack of oversight at CBSA. CBSA officers have huge powers. They can detain someone if they believe they're not going to appear for their removal or if they're inadmissible to Canada. In certain circumstances they can enter premises without a search warrant. They can seize documents. In some cases they have more powers than policemen in similar circumstances. Yet there's absolutely no oversight at all of CBSA.

I represented Maher Arar. There were two parts to the Arar commission, and the second part dealt with oversight. Commissioner O'Connor recommended that there be oversight. He was focusing on the national security aspect of CBSA. CBSA has a whole national security department that has huge powers of arrest, detention and making recommendations on admissibility. Absolutely nobody oversees the work of CBSA officials.

To be blunt, many CBSA officers do wonderful work, and we have wonderful relationships, but there are thousands of officers, and every now and then you get an officer who abuses his or her power. We have no one to complain to. There's no complaint mechanism. There's no one you can write to. There's no way you can initiate a complaint against the CBSA officer.

We had a grandmother some 70-plus years old who was being deported to Sri Lanka show up at the office, and the CBSA officer said, ``Where are you going to go when you go to Sri Lanka?'' One of the lawyers in my office was there. The grandmother said, ``I have nowhere to go. My family is all here in Canada. I have nowhere to go.'' He said, ``Well, you have to tell me where you're going to go or I'm going to arrest you and I give you 24 hours to give me your address or if not I'm going to detain you.'' She had nowhere to go, yet she was threatened with detention. Who was I to complain to about this abusive behaviour? There was no one because there was no official.

On another occasion, a client of mine was called in to be interviewed by CSIS. I wrote back to the official to say he had no legal authority — there is now legal authority under an amendment brought in this year — to bring my client in to be interviewed. They said, ``That's right, but he has to come in and if he doesn't come in, we'll arrest him.'' I had to go to the Federal Court and sue. There's a judgment in the Federal Court of Canada in which Justice Mosley said the CBSA abused its authority; but I had no one to complain to and there's no accountability.

CBSA has to have accountability recommendations. You have to recommend the creation of an independent accountability procedure for CBSA. It's fundamental to the rule of law in this country that officials who have the kind of power that CBSA officials have are subject to accountability mechanisms. There are absolutely none in the context. Ask CBSA officials: Who do we complain to?

I write letters to the manager. I have written letters in many cases. Usually I don't get an answer or get an acknowledgment. There's no process I can engage in because there isn't one. Given the amount of power that CBSA officials have, it's simply unacceptable in a democracy that there is no accountability mechanism.

The last point I want to make is in relation to membership. The notion that a person should be deported based on his membership has been part of our law since about 1993, if I'm not mistaken. I may be mistaken about when the amendment was brought in. The difficulty is that the provisions don't recognize any temporal connection between the person's membership and his inadmissibility. For instance, a person joins a group well after it has ceased terrorist activities. Despite that fact, the person is still inadmissible to Canada. Why should a person who joined a group after the group stopped terrorist activities still be inadmissible because the group before he or she joined committed terrorist activities?

There are other examples of absurdity. I'll be in the Federal Court of Appeal tomorrow on a case involving a young man who is a member of an organization called the Kurdish Democratic Party of Iran. The organization has sought autonomy from the Iranian government since the Shah's time. It supported the uprising against the Shah. Since that time, a goodly portion of the Kurds has been forced to live in refugee camps in Iraq. In the mid-1990s, the organization renounced any use of violence. It has never been accused of engaging in terrorist activities. Despite this, my client, who joined the organization after it renounced its use of violence, is inadmissible. Although he is a refugee, he has been ordered deported from Canada due to his membership in an organization, even though the president of that organization was invited to speak before the Senate on human rights violations in Iran in 2009. Why are we deporting someone who joined a group that is not using terrorist methods and is seeking the autonomy of the Kurds, when we invite the president of that organization, who fortunately happens to be a Canadian or he too would be at risk of deportation because of his membership in the group?

I would urge the committee to look at the issue of membership and the criteria of inadmissibility.

The Chair: Thank you. Those are interesting presentations by both witnesses. I'd like to ask a question and perhaps follow up on what Ms. Taub recommended. You spoke about the question of memberships; and you referred to photo membership cards.

Ms. Taub: Smart cards.

The Chair: Yes. We have heard over the last number of hearings the fact that when individuals come to the border and are seen to be admissible or inadmissible, they may not have photo ID. You are recommending the issuance of a smart card.

Ms. Taub: For permanent residents. When a visa is issued, it should be a smart visa card.

The Chair: You recommended this a year or two ago and have been advocating for that. What type of reception are you getting with respect to that recommendation by the CBSA and others? Perhaps, Mr. Waldman, you can comment on that as well because you're obviously very familiar with what happens at our ports of entry with respect to what is required when you come into the country. What are your thoughts are on that?

Ms. Taub: My recommendation was well received by the Standing Committee on Citizenship and Immigration. I think that was June 2013. Perhaps I raised it another time when I testified before them. I don't think anything has really happened with that before. I have spoken to CBSA on an informal basis, and they think it's well overdue. It's not like the technology is not available because it's been around for over 50 years. If there are any increased costs, the applicants should bear them.

For two seconds while I'm speaking, I'd like to address briefly an issue raised by Mr. Waldman. I didn't recommend at any time that every person entering Canada be screened. I just recommended foreign students, foreign workers and just those tourists who require visitor visas to enter Canada. We're not looking at 35 million people who come into Canada annually as tourists. That's not whom I was referring to. I was referring to maybe 1,000 foreign students and foreign workers and just under 1 million tourists who must apply for visitor visas. It was not the entire 35 million, obviously.

The Chair: Mr. Waldman, do you have any comments with respect to the idea of what is referred to as a smart card?

Mr. Waldman: There is one issue you have to consider in all of these matters: privacy. You have to balance the security issues against the privacy issues. When a person seeks to enter Canada, he has waived his right to privacy to a certain extent.

I don't have issue with a card that would record entries. I understand the minister said they were planning to introduce exit controls in the context of the Citizenship Act. I don't have an issue with exit controls. Most countries have exit controls, and it would resolve, to some extent, some of the issues that arise vis-à-vis permanent residency and citizenship applications. I don't have any significant issues with either of those.

Senator Mitchell: I appreciate the juxtaposition of views. We have a pretty clear indication of the polar separation of views. I am taken a bit by the intensity of Ms. Taub's presentation and, I would argue, her rather sweeping generalizations of terrorist-producing countries. In fact, Ms. Taub, you were more specific and slightly more intense before the house committee when you said that if you have a single male who's not married and he's young and from some of these so-called terrorist-producing countries, it goes without saying that 19 out of 20 of them would be denied. I would have thought 20 out of 20 would be denied, based on experience.

In Canada, the Toronto 18 terrorists were all born in Canada, I believe. Two Canadian-born terrorists were killed in Algeria and three were killed in Syria. Couldn't other countries say that Canada is a terrorist-producing country and put up these infinite barriers? My wife and I have three sons, all of whom would fall into that category as two are in their twenties, one is in his thirties and none of them is married.

Could we not find a way to be much more enlightened about the way we review people? To take your definition, countries around the world could say that Canada is a terrorist-producing country.

Ms. Taub: I clearly stated that they should increase the scrutiny and background checks — that's what I've stated today — of people coming out of these terrorist-producing countries. Yes, some of them are homegrown, but where did the ideas emanate from? They didn't emanate from Canada but from these countries that finance some of the schools here and some of the mosques that propagandize. They learned it from somewhere, and it wasn't in the Canadian school system or the educational system. It's coming from abroad. It's coming from Iran and Saudi Arabia. It's being exported into Canada.

Senator Mitchell: I'll keep this preamble shorter.

Let's try to keep this in perspective. All these unmarried young males who have come into Canada have never been reviewed. Of all the people who have come from — as you would argue — terrorist-producing countries and aren't even being reviewed about whether they've left when they should have, how many actual cases of terrorism have these categories of people ever perpetrated in Canada?

Ms. Taub: Does anybody know? It doesn't have to be a case of terrorism. It could just be spreading hatred into Canada, such as around school campuses in Canada. You don't have to blow up a building or blow up someone when you disseminate hatred of a certain identifiable group in Canada. That's not an act of terrorism? Well, it's a creation of hatred and disharmony, and the balkanization of Canada. For example, it is clearly known in the Jewish community of Canada that there are certain universities you can no longer attend because of the presence of foreign students who are openly agitating against Jewish students.

Senator Wells: Thank you for your presentations, Ms. Taub and Mr. Waldman. I want to continue on the theme of profiling.

We empower CBSA staff to use whatever tools are in their quiver to do their jobs. My own feeling is that limiting that is not helpful to Canada or to Canadians.

Given that potential immigrants to Canada don't have a right to come and live in Canada — it's a privilege that we bestow upon them — I think with profiling, there is often a knee-jerk reaction. Ms. Taub, help me understand a bit more about the profiling, because we know there are good folks and bad folks who can come from any country.

Could you develop that a little bit more? I know you've spoken and written on it in the past.

Ms. Taub: My colleague is right: You don't need to do a security check or screening of somebody who shows up at the border who looks like me: a senior citizen and a little lady with white hair. There are certain profiles of people who you can guess will not pose a threat, such as mothers with young children, for example.

I'll give you a personal example. My son-in-law comes from a mixed East Indian and Scottish background and looks exactly like what you would expect the standard profile to be of somebody coming from one of those countries. He is a Canadian citizen, born in Winnipeg. When he travels alone, they always give him extra scrutiny. When he travels with my daughter and their children, they leave him alone.

He doesn't mind at all. He says he understands and has no issues with it. It has been the situation for him since his adolescence.

People understand when there is extra scrutiny and extra screening, and I don't think the majority of people mind.

Senator Wells: Mr. Waldman, I understand you might have a comment on that, but I also wanted to ask you a question regarding the document that Ms. Taub tabled regarding all the ways that the process can be delayed. More than anything specific is the visual impact of the number of boxes and ways that delays can be made when the CBSA makes an initial judgment that perhaps someone should not be permitted into Canada.

Do you think an appeal process based on the CBSA's decision — I think you noted that in your preparation — would add more boxes because of that and therefore more avenues for delay?

Mr. Waldman: Maybe you misunderstood. I wasn't suggesting an appeal process in this procedure.

Senator Wells: Excuse me, Mr. Waldman, not in this procedure, but you mentioned an appeal process for decisions that CBSA makes.

Mr. Waldman: No, no. I was saying an oversight for all decisions taken by all CBSA officers; it wasn't focusing on this. The issue is not focusing on whether a determination is made that a person is detained or inadmissible to Canada. These are for times when people feel that CBSA officials have abused their authority — that there should be a complaint mechanism.

A complaint mechanism wouldn't have any impact on the person's processing for admission to Canada at all; rather, there would be an independent mechanism by an independent commissioner to review allegations of inappropriate behaviour, in the same way that there's a complaint mechanism for the police that is independent and in the same way that there are complaint mechanisms in the form of the Security Intelligence Review Committee that oversees CSIS.

This has nothing to do with the actual processing of determinations of inadmissibility. Let's say there's an allegation that a CBSA officer hit someone. There should be a process where someone can make that allegation, and it should be investigated. Another example would be if there was an allegation that an officer was verbally abusive in some way. Many of these may not be well-founded, but there has to be a mechanism whereby people can bring forward complaints.

I'm saying to you there is absolutely no such mechanism today, and, in my view, it's unacceptable in a democracy that an organization with the scope and powers that CBSA officials have is not subject to any kind of oversight.

It's the same as the RCMP. If you have an independent oversight of the RCMP — and I think amendments were just brought in by Parliament on that — it doesn't prevent the RCMP from conducting investigations. It allows that if someone feels an RCMP officer has acted inappropriately, they can bring a complaint. It can be brought by any member of the public.

I think it's completely different from this charge.

In terms of the issue of profiling, I have one brief comment. There has to be a careful balance, and we have to be very careful not to engage in what I would call ``offensive profiling.'' We need to have all the tools to protect our society, and Canada has, as you said, the right to admit or not admit any person to Canada and make a determination as to their admissibility, but people are also entitled to due process, because we live in a democracy. I think it's very important that we don't engage in these broad, sweeping generalizations that are not founded on evidence.

The Chair: Colleagues, just to inform you, our next panel of witnesses won't be available until 3:30 because of some difficulties with the question of the video transmission. So I'm recommending that we go until quarter past 3 with this panel, take a 15-minute break and move on to the next panel.

Senator Day: Assuming the witnesses are able to stay.

The Chair: Are the witnesses able to stay?

Mr. Waldman: I think Mr. Paterson is coming at —

It's up to you. I was going to say that he might want to join us when he comes.

The Chair: We'll stay with this panel. He's on a separate panel. Senator Wells, did you get a complete answer, since we are getting a little more time here?

Senator Wells: The answer was complete, but just as part of the conversation we're having, in terms of an appeal toward the CBSA because of an action they did, do you foresee that as further delaying the process of having someone removed from the country?

Mr. Waldman: No, it's a completely separate process. In the same way we have an RCMP commissioner of complaints, we'd have a CBSA commissioner of complaints. If somebody says, ``This officer hit me,'' he files a complaint and it's investigated. I don't see why that would necessarily affect the person's removal from the country. The complaints commissioner would take a statement from the individual, interview him and all the individuals and make a finding. If it were necessary to follow up, the follow-up could take place outside of Canada.

Senator Wells: It would appear to me that such would fall under an assault rather than something under a CBSA process, meaning that it exists.

Mr. Waldman: I'm just giving you an example. You're right, but not every person who's assaulted lays a charge of assault against the RCMP officer; some people go to the commissioner of complaints and let them do the investigation. If you're in detention, it may not be practical for you to go and make a complaint and get the person charged with assault, so there has to be a mechanism for me to make the complaint.

And the complaint could be of a different sort. What happened to this 75-year-old woman who was threatened with detention because she couldn't provide an address that she didn't have? She should be entitled to make a complaint, or I should be entitled to make a complaint. That complaint should go somewhere, be followed up by an officer, and there should be a finding. That's what I'm saying.

Senator Wells: Thank you very much, chair, for your indulgence.

The Chair: Members, could we keep our preambles short? Time is marching on.

Senator Campbell: Thank you, chair. I find the comments of Ms. Taub almost xenophobic, certainly draconian. I have a problem. How big of a problem do we have with students and foreign workers? How do we know?

Ms. Taub: We don't know with foreign workers because we don't monitor them.

Senator Campbell: If we don't know, how can we proceed into this area of —

Ms. Taub: We do know what happens on campuses because there are reports coming out from Jewish student organizations, which I get on a regular basis. So we do know.

Senator Campbell: Okay, I'll leave that one. When was this document prepared?

Ms. Taub: 2008.

Senator Campbell: Has anything changed, Mr. Waldman, since 2008? Government changes?

Ms. Taub: There's no cause.

Mr. Waldman: There are several changes.

Senator Campbell: Then I submit to you this document is useless for our purposes because it reflects history and not what's going on now.

I have one more question. I find it amazing that every single country on this list is non-Caucasian. What do we do about people who come from Romania, Czechoslovakia, England or some other places? Why would these all be non- Caucasian?

Ms. Taub: I didn't prepare the list.

Senator Campbell: You support it, though. The last thing I want to know is why — no, I don't.

Senator White: Thank you both for being here. My question touches more closely on the biometric data. I appreciate the fact that we're collecting biometrics from some people entering into this country, and I would suggest we need to expand that. More importantly, what is your opinion on the utilization of biometric data to compare against data collected from other nations? For example, the United States collected over 8,000 sets of fingerprints during their time in Afghanistan and Iraq. This does not include fingerprints they collected in other countries — the U.K., and Australia through CrimTrac — from some of those same countries we're concerned about. Yet we don't always compare fingerprints of people entering this country for any purpose. Do you see that as an opportunity for us to start looking seriously at some of the concerns we should have from some people entering the country?

Ms. Taub: I thought some kind of an agreement was reached in 2011 with the United States to share some of this biometric data already in place.

Senator White: There is an agreement that we can share when we proceed to that point. From my perspective, if we take the biometrics from somebody entering the country, we should be comparing to every data bank we have access to, including the U.K, Australia, and the U.S., but I'm not convinced we do that as regularly as we should.

Ms. Taub: We don't have sufficient personnel or financial resources to do that at the moment with all the cutbacks.

Mr. Waldman: It strikes me that obviously the more we check, the more likely we are to find somebody who might be problematic. But at the end of the day we have to balance the cost of spending all that money to check against how safe it will make us. Those are the types of questions that have to be asked, and I don't have the answers to them. What empirical evidence is there that large numbers of foreign workers are committing crimes so that we need to expand the amount of money and resources given to check every foreign worker before he or she comes into Canada? I don't know what the evidence is.

I want to point out one thing because someone asked about this chart. It's not accurate, because this chart suggests that every person goes to an admissibility hearing. That's not accurate because the vast majority of admissibility determinations are made by minister's delegates. A person comes into Canada, and in many cases a removal is made within hours of their arrival in Canada. In fact, a lot of people are put on planes within hours or even days of their arrival.

I think it would be important to carefully review this document, and as my friend said, there is no longer a right to — Well, there is if you haven't had a refugee hearing. There have been changes, but I think it would be important to get evidence as to what the reality is today as opposed to relying on this chart when you discuss the issues related to it.

The Chair: Perhaps I could follow up on that comment of Mr. Waldman to be clear with respect to the changes that have been implemented over the last number of years. Are you saying to the committee that those particular situations where an individual who knew the system and had the resources could conceivably stay in the country, being inadmissible, for 10 or 15 years as they go through a system of appeals — with the changes that have place, that particular case would be dealt with more efficiently as opposed to the situation that existed before?

Mr. Waldman: Most of the obstacles to speedy removal have been eliminated. For example, I looked at the list some time ago. It was used by the government when it presented its proposals for reform. A lot of the permanent residents who were ordered deported had appeals and got stays of their appeal. Most of those people would no longer get stays of appeals today because if they get a sentence of six months or more, they would have no right of appeal. A lot of the mechanisms used in the past no longer exist. Whether that's good or bad is a separate issue. That has already happened, but I think it's important to understand that there is a new system in place already and a lot of the concerns that existed before, in terms of delays and removal, no longer exist.

Senator White: Thank you both for your response. If we're talking about tightening a process or a system in which we're concerned about some people entering the country, from my perspective, we already have these systems in place. We have real-time identification that can compare to 35 million sets of criminal prints found in Canada, and 350 million in the U.S., quite quickly. I'm not sure we're fully utilizing the system we have.

I'm not arguing that we should change or improve our system, but I would suggest that as we're capturing biometrics, which I agree with and would like to see expanded, we need to be certain we can compare to every system, if we have one that comes in. That's one of the reasons we have challenges from other countries, such as the United States, about who we allow to cross our border in the first place.

Why wouldn't we expand more on checking against biometrics if we're going to start capturing them more readily anyway?

Ms. Taub: There's no reason not to expand. It's a matter of financial resources and personnel. If you're cutting back on the front-line gatekeepers, how can you expand any cooperation with countries if you don't have the financial resources and the personnel to deal with it?

As a little bit of a follow-up here, the article from March 13 referred to 250 serious war criminals and human rights violators who are still in Canada for years and years, and they have not dealt with these backlog cases because they sit in the minister's office, sometimes for years, waiting for a final decision. It says:

Here you have a situation where the Parliament has deemed these cases to be the most serious, yet the bureaucracy at CIC and CBSA is unable to reflect this priority by delivering the numbers. Canadians should be justifiably outraged . . .

You have a copy of this. This is current.

I bring to your attention that the war criminal Léon Mugesera was deported only in 2012. That's not so long ago, after he was first ordered by the Supreme Court to be deported in 2005 and earlier in 1995. Sandra Gordon is still here from 1976, today, so it is a current problem.

Let me say that we're not just looking at serious criminals and human rights violators. Foreign workers who have overstayed their foreign worker permits are also inadmissible. They're not criminals, they're not terrorists, but by definition of IRPA they are inadmissible. Students who have overstayed or students who dropped out of school and are working full-time on an off-campus work permit are also violating the act and are deemed to be inadmissible. These are not serious cases, and I know CBSA doesn't really tackle them because they're not considered to be serious.

Tourists who come in and then end up living here for years and years, they're inadmissible. I have dealt with many of those cases when spouses come in as tourists, don't need visas, from the United States and Europe and end up staying here living with their husbands, having children. Of course, they're considered inadmissible, but you can get around that by doing in Canada spousal sponsorships and they can regularize their status. That is another category of inadmissible foreign nationals in Canada that gets very little attention and they are not considered priorities.

The Chair: If I could make this comment in respect to the terms of reference for the purpose of our particular examination of the CBSA and the inadmissibility and admissibility, we're basically doing it at the border and looking at that point of entry. That's a priority of this committee. We are keeping it somewhat narrow. If we get too broad, all of a sudden we're dealing with all the issues of immigration. That isn't the mandate this committee has. I want to make that clear to the viewers and everyone else as well.

Ms. Taub: You raise a very relevant point because CBSA does have the mandate to deal with those people.

The Chair: I'm not disagreeing.

Ms. Taub: I agree, but they're so short-staffed that they can barely deal with the security issues, in addition to their expanded mandate to deal with all inadmissible people.

The Chair: I appreciate that.

Senator Beyak: Thank you for an enlightening presentation. I think it is true what you said, Ms. Taub, about the university campuses. It is hard to have rational debates on these issues because they are controversial, complicated and emotional, and sides kind of dig in.

You alluded to some methods we might have of making things better, and, for example, the RCMP visa screening targets applicants right now from Russia, Ukraine and Mexico. Could you see expanding that? You mentioned other countries that are a danger and a threat. How could we do a better job there?

Ms. Taub: There should be not only security background checks but also security background checks as well as criminal background checks. A criminal background check just means that you haven't committed a criminal act. A security background check is looking into your association. Let's say you belong to a drug cartel in Mexico but haven't been caught and charged and convicted in Mexico. Nevertheless, you belong to a notorious Mexican drug cartel. That would be the security background check. That's basically what I'm saying.

Bring in compulsory interviews. Honestly, a CBSA visa officer can determine within 30 seconds, a minute, who they're dealing with and what they're dealing with, but they need the time. If they need the time, that means they can finalize fewer cases, but they are really pressured to complete the applications and finalize.

Double the personnel. I don't see how you can get around that to do thorough checks.

Senator Beyak: I understand that. The first time I flew with El Al, it was quite impressive.

The second question I had was similar. It is about the number of days. We look at China, and it's five days; we look at Russia, and it's ten days for the wait period. Are these reasonable for the countries that are cited? What recommendations would you have?

Ms. Taub: Five days and ten days do not permit interview times. I don't see how they can do proper screening. If given the time there could be proper screening, given the time, you wouldn't even need profiling.

Mr. Waldman: I come from the old school. When I started out, virtually everybody was interviewed. I preferred that. I agree. It is a more efficient way of doing things.

But two realities exist today. The volume of applications we're dealing with is a hundredfold what it was when I started practising. The issues that exist today didn't exist 30 years ago in terms of the types of security concerns that we have today.

We live in an age of restraint. I think we have to come up with recommendations that are practical, reasonable and feasible. Although I would love to see every applicant interviewed in every case, it is just not going to happen because that would mean multiplying by a hundred times the amount of money we would have to spend, and the money isn't there. What we need to do is find ways of efficiently using our resources without closing the borders.

The Chair: That's why I was pursuing the idea of the smart card, that it might well be one of those practical steps that could help and assist.

Senator Day: Mr. Waldman, with your experience in relation to security certificates, it would be helpful if you could spend a little bit of time telling us how you see the role of the special advocate in ensuring that there is some protection for the individual, if you could talk a little bit about the challenge to the Supreme Court. It went up once, one year, to rectify, and that rectification was done and then I think the special advocate was one of the improvisations introduced in the new legislation. I understand there are other cases now going to the Supreme Court in relation to the security certificates, which in effect, if they're found to be reasonable — I think that's the reasonableness test — become deportation orders.

Mr. Waldman: The difficulty with the security certificates has been to create a process that protects the national security interests of the government and in these cases particularly the information that the government has while ensuring a fair process for the person concerned. What happened with the security certificate process was that certificates were issued, but they were not issued very frequently because once the certificates were issued, it engaged a process that usually took a considerable amount of time. A person isn't given access to the evidence that is used against him; a Federal Court judge reviews it. So there were concerns about the fairness of a process, especially when people, like some of the people who were involved in the certificates, were refugees who asserted that and were found to be at risk of torture if they returned to their country.

In that context, there were concerns that the process be fair, because if they were going to be ordered deported there was a risk that they might be subjected to torture. When the certificates were introduced, the concern was that there was an imbalance in the process because there was no one advocating for the person who was being subjected to the deportation process in the secret hearing.

In 2007, the Supreme Court of Canada ruled in the first Charkaoui decision that that process was unfair, was inconsistent with fundamental justice, and that there had to be someone advocating for the person in the secret proceedings.

The government introduced amendments, so in 2008 the new process was engaged, which involved the appointment of a security-cleared special advocate. I have the honour of being appointed special advocate.

In the new process, the secret evidence is received by the Federal Court judge. The special advocate can meet with the person who is the subject of the deportation process, but then after he reviews the secret evidence he can no longer communicate with the person as a means of ensuring that there's no leakage of the secret evidence between the special advocate and the person concerned.

This case has now gone up to the Supreme Court a second time because the position of Mr. Harkat, the appellant in that case, was that this process is still not fair. The difficulty that the special advocate has is that once he reviews the secret evidence, if he can't discuss it with the person, how can he properly challenge it? If the evidence says you were in Afghanistan in 1994, if you can't ask Mr. Harkat whether he was in Afghanistan in 1994, how can you possibly effectively challenge the evidence?

That's really the issue that is now before the Supreme Court of Canada, whether this new process is fair.

The challenge in all these cases is finding the proper balance between a fair process and one that protects national security, and the difficulty that we have had up until now has been that we may or may not have found the balance. The Supreme Court will now tell us when it rules on Harkat whether this system is acceptable. The government is defending it, and Mr. Harkat and his counsel and some of the intervenors are challenging it. The Supreme Court will tell us whether this is sufficient.

Even so, the other difficulty is that the process is extremely time-consuming. The nature of the evidence and the nature of the process have proven to be a very lengthy one. So how do we find a process that allows for a fair process and the protection of the national security information, but does it in a more efficient fashion? That is obviously going to be a challenge as we move forward.

Senator Day: Thank you for that explanation.

On the second point, I am looking for a clarification. You indicated that we need an oversight mechanism for the powers there, but then you got into a discussion that seemed to be a review of complaints as opposed to what I would describe as a thorough oversight like SIRC is of CSIS.

When you talked about oversight, were you talking about just a complaint mechanism, a place for people who feel they have been hard done by by an officer, or are you talking about a true oversight body? If you were talking about a true oversight body, is it possible that SIRC could do both, or have you thought about a parliamentary oversight body that might possibly provide that?

Mr. Waldman: Your point is well taken. There are two separate issues. One is the general oversight of CBSA, and the other is a complaint mechanism.

I agree that both are needed, but from my point of view, what I was focusing my concerns on is the lack of any kind of independent complaints process because there is none, and given the power. But I do agree it would be helpful if there were some kind of oversight as well.

If you talk to people at CSIS, they generally universally agree that the fact that SIRC engages in oversight makes CSIS a better organization. A similar oversight for CBSA would probably be welcome.

Senator Dagenais: Mr. Waldman, shared databases, lookouts, watch lists and targeting algorithms form the basis of security screening in Canada and elsewhere in the free world. Could you please comment on any experience you have had representing clients who have been detained or perhaps identified for removal from Canada on the basis of faulty information stored and shared through automated systems?

Mr. Waldman: You are asking whether I'm aware of people that have been involved in the deportation proceeding because of faulty information. Yes, I think that on occasion it happens. Obviously, the best example of that was Mr. Arar, who was deported from the United States based upon faulty information provided, in part, by the RCMP.

When you deal with information sharing, and especially when you deal with national security information sharing, the difficulty we often have is in knowing the reliability of the information, because the information will come from a security agency, and they will say, ``We have information that Mr. X is a member of al Qaeda.'' They don't tell you where they got that information, and sometimes they may have gotten it from another intelligence agency. At a certain point, the reliability of the information becomes very problematic when it goes through this recycling through a different intelligence agency.

It is a problem. It is one that we have to be aware of. On the other hand, the security issues are extremely important, so we have to always seek to find a balance to ensure that we rely on reliable information so that people aren't subject to a deportation process unless the information that is being relied on is reliable. That's why, when we deal with security certificates or the other process in immigration under section 86, which is similar, it is important that there be some mechanism to challenge the reliability of the intelligence.

Ms. Taub: That happens in criminal courts all the time. People can be convicted on inaccurate information. It is just a fact of life, and so long as it is not a prevailing condition, it is just something one has to live with because the overwhelming priority is the security and safety of Canada and Canadians.

Just as it does happen in immigration, it does happen in the criminal justice system as well on a daily basis.

Senator Dagenais: What are your views on the use of security certificates in removing persons deemed inadmissible to Canada? How would you address the issue of identifying and removing persons who do not have criminal records but who are believed on the basis of intelligence to pose a national security threat to Canada?

Mr. Waldman: The first issue is on the security certificates and how I view their efficiency and effectiveness, and the need for them.

Our experience has shown that it is a usually problematic area because when we're dealing with a process where people are denied access to the information that is used to implicate them in very serious allegations, it really undermines the faith that many people have in the fairness of our process.

The effectiveness of the security certificate regime has not been proven in my mind. It has been the subject of three Supreme Court challenges; two have been decided and the third one is pending. I think the amount of energy and effort that goes into it could probably be better spent in other processes.

The second question is an interesting one, but it raises the same issue. If we have criminal intelligence information that a person is dangerous and poses a threat to the security of Canada, yet hasn't been convicted of an offence, it really depends at a certain point where that person is.

If the person is outside of Canada, it strikes me, then, that it may be appropriate to use that information to deny the person admission and then allow the person to challenge that through a fair process.

If the person is already in Canada and perhaps is a refugee asserting unfair persecution, so his interests are far more serious and the potential consequences are more severe, I think we have to be very careful.

Using criminal intelligence and security intelligence are two very similar issues, and those of us who have looked at this issue closely have seen on many occasions the difficulty in relying on such information in a legal process because it is difficult to ascertain the reliability of the evidence. It becomes hard for us to determine the reasonableness of a determination made upon intelligence whose reliability is not subject to any kind of meaningful challenge.

The Chair: On behalf the committee members, I would like to thank the witnesses for taking the time to come before us here today. I appreciate the time and the effort that you put into your presentations. It has been informative. Once again, thank you for coming.

As we continue our study of CBSA and its role in determining admissibility, inadmissibility and the removal of individuals deemed inadmissible, we are pleased to welcome Mr. Josh Paterson, Executive Director of the British Columbia Civil Liberties Association; and Sukanya Pillay, Executive Director and General Counsel of the Canadian Civil Liberties Association, who is joining us by video conference.

Ms. Pillay, I understand you have recently been appointed to your new position. Please accept the congratulations of myself and my colleagues.

We welcome both of you to our committee. I understand you have an opening statement. Please begin. We have one hour for this panel. Who would like to begin first? Mr. Paterson?

Josh Paterson, Executive Director, British Columbia Civil Liberties Association: I'm happy to, with relief. Thank you very much.

Greetings, honourable senators. Hello to Ms. Pillay in Toronto. It is nice to see you by video conference.

Thank you for inviting me to speak. My name is Josh Paterson. As Senator Lang explained, I am the executive director of the British Columbia Civil Liberties Association, which is Canada's oldest human rights and civil liberties organization. We're based in Vancouver, but we do our work at the federal as well as the provincial level. We're pleased to be here today.

I'm going to be focusing my remarks on the question of CBSA accountability, one of the questions covered in your study. I understand Ms. Pillay will be covering that as well as, potentially, some other aspects that I won't get to.

Civilian review and complaints bodies — civilian accountability is really a core principle of democratic policing in Canada. We know that CBSA officers and other peace officers are there to serve and protect Canadians and to uphold the rights of everybody that they come into contact with. We entrust them, of course, with enormous powers in order for them to do that work. That's one of the reasons why we've created oversight and accountability bodies to support law enforcement in their work, helping us to ensure as a society that their powers are exercised justly. We build these systems because we strive collectively towards a goal of having the best possible police services and the highest public confidence in those services.

As you well know, CBSA is a national law enforcement agency that conducts thousands of dealings with Canadians, visitors, and migrants, including refugee claimants, each year. When CBSA officers carry out these responsibilities under Canada's immigration and customs laws, they have wide-ranging police powers. They have the powers of arrest, detention, search, seizure. At the border, CBSA officers actually have more sweeping powers than garden-variety police officers do in the rest of the country. For example, they can stop travellers for questioning, take blood and breath samples, search, detain and arrest non-citizens without having a warrant.

Despite these sweeping police powers, there is no independent review and complaint body for the CBSA. It's highly unusual in Canada to have this kind of a situation. Every major police force in the country, be it at the national, provincial or municipal level, has got some kind of independent oversight or review body. CBSA stands very much alone in this respect and not in a good way. We think that the absence of any independent review body for CBSA does both CBSA and the public a significant disservice.

The suggestion that there be independent review for CBSA is of course nothing new. I'm sure many of the senators will be well familiar with the recommendations of the Arar inquiry, that the national security activities of the CBSA be subject to an independent complaint and review body. In his report, Justice O'Connor recommended that this body be a reconstituted RCMP public complaints commission that would have responsibility for reviewing the activities of both agencies. He said this was needed because of the significant potential for the CBSA's activities to affect individual rights, dignity and well-being.

As you are all aware, neither Parliament nor the government has yet acted on this recommendation.

Currently, anyone with a complaint against the CBSA has to file a complaint with the agency itself. At present, all that exists is the CBSA's own internal complaint mechanism, which they call the Recourse Directorate.

We have found in our dealings with many complainants in B.C. that they have not felt they had a very effective mechanism when they used that internal recourse mechanism at the CBSA. Certainly, they handle complaints. Yes, they have another officer do it, not the officer involved, but fundamentally, this body is an internal mechanism. It's not independent. It reports to the president. It neither has independence in fact nor independence in appearance. It has no authority to launch independent reviews on its own initiative.

We think that in many respects, the existing mechanism at CBSA simply doesn't satisfy the needs that we as Canadians consider to be basic for pretty much every other police force in the country. There are only a very few police forces that don't have some kind of a review mechanism. They tend to be smaller ones like park wardens and fisheries officers.

We take the position at British Columbia Civil Liberties Association that there needs to be an independent civilian review agency, not only for the national security activities of CBSA, as Justice O'Connor recommended — remember, his mandate was only to look at national security activities — but also to cover CBSA's policing and border control activities whenever they're dealing with individuals in the context of immigration, refugee matters and border control.

We think that any oversight or review agency must do three things. I should use the term ``review agency'' because, of course, there's a distinction between oversight and review. When I say ``oversight,'' I'm actually talking about review.

The first thing we think that such an agency ought to be able to do is deal with public complaints about CBSA's conduct, including third-party complaints from public interest organizations. It's important that the complaints not be limited just to individual complainants, in our view, for a very simple reason: The CBSA deals with many vulnerable people who perhaps are making refugee claims in Canada, whose status in Canada may be uncertain. By the very nature of their work, they're dealing with certain groups that may not speak English or French, may not understand our system very well, and may be reluctant to file complaints, particularly if they're coming to Canada and saying, ``Please, will you protect me? Please, will you let me live here, stay here? Please, will you give me some kind of status?'' When you come from a country where complaining to the police or authorities may not be the most fruitful endeavour, you may very well reticent to make a complaint. That's why there needs to be the capacity to accept third-party complaints. In other cases, people may be deported, so there would be no complainant.

Second, a review body needs to be able to initiate its own reviews. Justice O'Connor recognized that, particularly in the national security sector, a lot of what goes on is secret and that people will never actually know what went down, and therefore there needs to be a capacity on the part of any review commission to initiate its own reviews and to initiate systemic reviews.

Third — and this is a bit different than the complaint and review side — we say there needs to be independent civilian investigation of critical and serious incidents such as incidents involving serious harm, sexual assault, and deaths in custody that are connected with CBSA activities, an immediate, on-the-scene response to serious incidents, something like what's used in Ontario with the Special Investigations Unit, in Alberta with ASERT — Alberta Environment Support & Emergency Response Team — and in B.C. with the Independent Investigations Office. This is independent, civilian, on-the-ground investigation of these critical incidents.

Of course, there's no need to create a new agency in order to do this. In many provinces, there is already an agency on the ground that, in the case of B.C. and Alberta, the RCMP has an agreement with to perform that function, and we see no reason why the same thing could not be done in respect of the CBSA.

For a number of months, different groups in civil society have been reiterating this call for oversight of the CBSA. It has been seven years since the Arar recommendations, during which no oversight and no review mechanism has been created for CBSA. Most recently, the calls have been prompted, particularly in B.C., by the tragic suicide death of someone in CBSA custody in a holding facility at the Vancouver airport.

We have heard many other allegations of CBSA misconduct or unfair practice. I say ``allegations'' because, of course, these allegations have not been substantiated. But the fact is that there's nowhere independent to go to take these allegations. In recent months, CBSA has had very little to say about these demands. CBSA has responded publicly, saying that the International Committee of the Red Cross and the UN High Commissioner for Refugees can look in on our facilities. They offer that as a potential answer. We say that's no answer because both of those agencies have confidentiality agreements with the CBSA. They're not allowed to speak publicly about any of their findings or anything they see. Clearly, they're not effective, and, for that matter, they are not Canadian agencies.

What we really need is a Canadian-based independent complaint and review mechanism, combined with a Canadian-based independent civilian investigation for CBSA. I would urge the committee to include a recommendation in its report that Parliament finally act to ensure an independent civilian review and complaints mechanism for CBSA, not only for its national security activities but also for the exercise of its police powers, border control, and immigration and refugee activities.

This is a whole other topic that I don't have enough time to treat here today. As I'm sure you've heard many times during your hearings, a lot of this activity on the national security front is cross-agency. We've been effective in knocking down the silos between various agencies. We haven't done the same on the accountability side. We need to make sure that whenever these mechanisms are created and enhanced, there is truly a cross-agency capacity to have review of the national security activities that are undertaken in our name. That is not exactly what I'm discussing here, but I just wanted to flag that as a concern.

An independent civilian complaint and review body is strongly in the public interest. It would help to boost confidence in the CBSA's law enforcement activities and it would benefit CBSA officers, we think, as well as the public. There would actually be some body that could indeed vindicate the conduct of the CBSA and get rid of these allegations that are hanging around when they are not substantiated. Everyone will hopefully see that this was done in an independent and impartial way. Given the sweeping powers available to CBSA officers, it is simply unacceptable that there is no public independent review or investigation mechanism. We strongly urge you to recommend that Parliament and the government fill that gap.

Sukanya Pillay, Executive Director and General Counsel, Canadian Civil Liberties Association: Thank you very much. I would like to thank my colleague, Mr. Josh Paterson, and iterate that we accept his comments. I would very much like to thank this committee and honourable senators for giving me the opportunity to appear before you today on behalf of the Canadian Civil Liberties Association.

Since 1964, the CCLA has been working to protect and promote civil liberties and fundamental freedoms across Canada. We have very serious concerns regarding the practices, policies and collaborative efforts of the CBSA, which is the focus of this afternoon's hearing, and we appreciate the opportunity to share these concerns with you.

I'm going to speak very quickly about five different topics. First is the need for independent review, and I'll be brief as Mr. Paterson has thoroughly spent some time discussing that. Next I would like to talk about interviews and note- taking, and the topics of detention conditions, barriers and access to justice and inadmissibility, all as they relate to detention.

With respect to the need for independent review, our first concern relates to the absence of any appropriate and independent review mechanism. The CBSA is an agency that enjoys sweeping powers, including law enforcement powers. CBSA officers can arrest, with or without a warrant, permanent residents or foreigners if they believe these individuals pose a threat to public safety or are illegally in the country. CBSA also has the power to detain foreigners and permanent residents, including asylum seekers. As mentioned, the CBSA also works closely with other agencies, including the RCMP and CSIS, in information sharing that the CBSA may rely upon in determining who may be a threat or who may illegally be in the country.

In this regard, we also respectfully state for the committee that the CBSA engages in information collection and dissemination with foreign agencies, with impact through its actions, such as its decisions, conclusions, investigations and apprehensions upon individuals within its jurisdiction. These sweeping powers of the CBSA are highly intrusive and coercive and have the impact to seriously and deleteriously affect the lives of individuals. We believe these powers must be subject to independent review in order to ensure they comply with Canadian constitutional safeguards, as well as the relevant legal obligations binding upon Canada pursuant to international law.

As Mr. Paterson has mentioned, Justice O'Connor recommended a review mechanism that would be both independent and would include complaints, investigation and self-initiated review. He recommended this for the RCMP, and he recommended that this mechanism should also review the activities of the CBSA, given its law enforcement powers and powers of arrest, detention, removal, intelligence, et cetera. We agree with this. We have made these comments before and we are very concerned that all these years later there has been no movement on this.

We would also stress here that the independent review mechanism should very carefully review the intelligence activities of the CBSA. We're also concerned that the CBSA passes on information that has formed the basis of security certificates, and we believe that the review process of intelligence gathering and sharing is vital. This information as well plays a serious role in the assessment of refugee claims, or can do. I can provide an example of that later.

On this topic, I would also say that outbound intelligence practices and specifics must also be subject to independent review. Some of the recommendations I would repeat here are that CBSA must never pass on information to foreign agencies that is not qualified, and CBSA has the duty to ensure the investigative nature of any information it does pass on. It must also include caveats with respect to use and dissemination among domestic and foreign agencies.

Moving to my next topic, I would just like to add that when CBSA officers are conducting investigations, it's very important that in their interviews they take careful notes, that these notes reflect the context and that they be free of bias. We say this because notes can form the basis of IRB hearings and other proceedings down the road and, as such, are an important link in the due process chain. Again, I can provide some examples of why we find that this is important.

We have had lawyers tell us about clients who are making a refugee claim. The officer has not believed him and, in his notes, has recorded something different, and then the refugee claimant finds that, further down the road, they have to actually try to defend against the notes. We find that that's important.

We would respectfully reiterate here that refugees and asylum seekers are among the most vulnerable people on the planet. They are fleeing persecution, and they no longer enjoy the protection of their home state. They should not be treated as fugitives; their claim should be treated justly.

We also note that there should be distinctions between asylum seekers and bona fide refugees, as well as between failed refugee claimants and foreign nationals. Refugees and asylum seekers are in a specialized category warranting protection, and they should not be conflated with other categories, whether they are foreign nationals, human smugglers or even other migrants, in practice, in detention or even, for that matter, in the maintaining of statistics.

We would also suggest that all CBSA interviews be videotaped, given the serious repercussions for the individual emanating from the CBSA interviews.

Moving on to detention, we would point out that, pursuant to the Immigration and Refugee Protection Act, IRPA, the CBSA is responsible for detention and the conditions of detention, even when detention occurs at correctional facilities. The CCLA is seriously concerned by the treatment of individuals held in immigration holding centres, including the barbed wire fences, the separation of families, the detention of children, the separation of children, perhaps, from one parent, or the grim choice of having the child held away from the parents, outside of detention but in foster care. Given the impact upon a child who has just experienced the trauma of persecution and fleeing persecution, we're very concerned about what would happen to that child when they arrive in Canada and are faced with these choices.

We're also concerned about the separation of these families when an individual who is in detention is transferred to another facility and is now removed from the community in which he or she lives.

I would continue that the CCLA also has serious concerns about the conditions of correctional facilities that the CBSA uses for detention. I have no doubt that this committee is well aware of the hunger strike at Lindsay.

One other point I would like to make here is that the CCLA has long spoken out about our concerns about segregation of those who are incarcerated. We're very seriously concerned to hear that refugee claimants and other detainees who are experiencing mental health issues have been segregated for long periods of time and have not had adequate mental health treatment or access to mental health treatment. We are aware of a disturbing example of a criminally inadmissible person in detention who suffered severe mental health issues and had deteriorated to being catatonic and consuming his own waste. It took six weeks for him to be removed to a psychiatric hospital and a team of lawyers and a psychiatrist to help get him out.

Two more quick points, if I may. With respect to detention and barriers to access to justice, the CCLA is concerned about the reports of individuals who have been detained for years under the authority of section 54 of the IRPA. We believe that such prolonged and indefinite detention is not compliant with the principles of due process and habeas corpus. We understand that many of the people who are detained pursuant to section 54 are disenfranchised and must rely upon legal aid for representation. However, the legal aid system, for example, here in Ontario, may provide representation for one detention review. Counsel, therefore, will only appear at one detention review; yet, the complexities of the case require several detention reviews. In such cases, we understand that the detained individual has little chance of being released.

We are also concerned that the CBSA has transferred individuals to facilities that are far removed from their counsel. We've heard of examples where counsel is in one city, appearing by teleconference. The individual is in a correctional facility, appearing by video conference. The CBSA officer and the IRB officer are in yet another room, and counsel can't hear the responses of his or her own client. We are concerned that such circumstances present a serious barrier to access to justice.

The last point I would like to make in my presentation to you today goes back to the comment about review and oversight, but particularly the independent review mechanism. Section 44(1) of the IRPA enables a CBSA officer who is of the opinion that a permanent resident or foreign national is inadmissible to prepare a report and send it to the minister to determine admissibility. We believe that this provides the officer with very broad discretion, and there ought to be review to make sure these sorts of applications are being done in good faith, are not being abused and are not targeting individuals. There is also concern over discretion on the application of conditions of detention in section 44(3). They are very broad, given that many individuals who are detained under these provisions may be indigent and disenfranchised.

There is no oversight and no independent review mechanism in place for these provisions, and we know that broad discretion is prone to abuse and misuse. In this case, the abusive processes can result in individuals being questionably targeted, and, of course, the impact upon an individual facing deportation is immense. Taken in totality with the many powers of the CBSA, including, as I stated at the outset, unchecked gathering and sharing powers, the potential for abuse and deleterious consequences to an individual is immense, and we argue that it must be subject to a review. Thank you very much.

The Chair: Thank you very much. I would just like to start out, if I could, colleagues, with two questions. First of all, we've referred to complaints about the agency and to the agency. Do you have any idea of how many complaints in a year the agency receives?

Mr. Paterson: Thank you, senator. I was actually looking into that over the weekend, and there are some figures in their annual reports. I know that, for example, in terms of complaints and issues that result in disciplinary things — sort of professional standards type of events — the number that I saw there was something around 60, I think, and then there were various different dispositions. I don't actually have a figure for you, sir, on the number of complaints in general that are brought to the CBSA from the general public. I can comment a little bit on this complaints mechanism.

It's not very accessible to start with. If you go on their website, there's kind of a Web forum and an email address, which I don't remember, but it's something like the complaints directorate at CBSA. It's not a particularly robust point of entry for complaints.

The response time we know, in certain circumstances, can be very slow. To name only one example, if I may, you will all be familiar with the Sun Sea, the Tamil migrants who arrived in Victoria and the Lower Mainland of B.C. Many of them made allegations of torture against the government of Sri Lanka. One in particular, Mr. Sathi Aseervatham, wrote a confidential affidavit as part of his refugee claim. His refugee claim wasn't successful. When he was deported to Sri Lanka, he was apprehended by their terrorism investigators there. He was interrogated in Colombo in the presence of CBSA officers on his affidavit about the torture from the Sri Lankan authorities. He was later tortured again in Sri Lanka, which he swore to in an affidavit after that investigation. He later died under some mysterious circumstances.

There is a huge question here. Of course the natural inference to draw is that someone in the Canadian government shared that affidavit, which was meant to be confidential, with the very government that the allegations were against. Then, of course, they turned up in Colombo as part of the investigation.

The Canadian Council for Refugees filed a complaint in October. They have yet to receive any response. I'm not sure if they've received a confirmation of receipt, but as yet they've received no actual response to that. That's a pretty big complaint and, interestingly, the very kind of information-sharing type of thing that wound us up in the Maher Arar difficulties, that gave rise to the commission of inquiry to start with, yet here these things are ongoing, and that's just one example. I mention it because someone did actually try and file a complaint on that and it has been dead air back from that.

I wish I had the numbers for you but I don't have the direct numbers.

The Chair: I want to follow up in respect to the review complaint process. Along with Judge O'Connor, you mentioned putting a mechanism in place federally. At the same time, during your comments you referred to the provincial authorities and civilian review complaint process. Would you be satisfied and would it meet the objectives if the Government of Canada said that they might be prepared to go into agreements with the various provincial or municipal jurisdictions to take that responsibility on as opposed to setting up a federal mechanism?

Mr. Paterson: Thank you; that's a great question. There were really two kinds of functions I was talking about. One is a public complaints and review mechanism. One is the immediate, on the ground, independent investigation where there's some serious incident or a critical incident such as serious harm, sexual assault or death in custody.

For that second category, we would have no objection to the existing provincial agencies where they exist having agreements to do that, which is already the case for the RCMP in B.C. and in Alberta. That's not to say that we don't have quibbles with how those agencies operate from time to time and so forth, and I'm sure Ms. Pillay would have lots to say about the SIU in Ontario if you were to ask her. However, we think that's a sensible place to go because there's no need to build this infrastructure, at least in the provinces where they have it.

In terms of the review and complaints mechanism, Mr. Justice O'Connor recommended that a souped-up version of the RCMP public complaints commission be used for that purpose. Again, I think there would be a certain attraction to using the existing federal mechanism that's already in place, rather than the various provincial police complaints mechanisms. I can see why a government might be attracted to doing that from an efficiency perspective.

That isn't to say, again, that we don't have concerns about the way that that operates. Actually, Ms. Pillay's organization has an excellent brief on some of the shortcomings of the revamped commission for public complaints from the amendments last year. All that being said, all those criticisms being there, it is an agency that exists. It is on the ground, it has staff and it may very well be a sensible place for complaints for CBSA to wind up rather than building some completely new federal agency from the ground up.

The Chair: Ms. Pillay, do you have any thoughts on that?

Ms. Pillay: I would agree with what Mr. Paterson said. I would want to reiterate that for our concerns relating to the on-the-ground emergency situations, the existing provincial investigative mechanisms would be sufficient. However, for the overarching and systemic concerns that we've laid out for you today with respect to CBSA, it's crucial that we have an independent, arm's-length review mechanism in place. In his report looking at the sorts of powers that the CBSA has and also the RCMP and some other agencies, Mr. Justice O'Connor made the point that it's really important that we do not simply rely upon internal reviews or internal audit mechanisms. I would argue it needs to be federal.

I would adopt what Mr. Paterson has said, and I will tell you anecdotally as well that we have had complaints to the CCLA. We have a public inquiries function where people call us when they've had problems. There are two things I want to say about that. One is that somebody called us to ask us about what they could do because they had a problem with the CBSA, and the response that they got when they called the CBSA was, ``Write to your MP.'' For us that's just not good enough.

The other thing that we would say is that the statistics on complaints are useful. Like Mr. Paterson, I too looked at that this weekend and I have also looked at a UNHCR report about other things, but I would also want to caution that existing statistics on complaints may not necessarily be indicative of any particular result because the people who are imperilled or adversely affected may not be in a position to complain.

Some sort of umbrella review mechanism would be really worthwhile going forward if one was put in place for the CBSA to start to maintain that kind of data.

Senator Mitchell: Thank you to both of you for your provocative and interesting presentations. I'm interested that both of you agree clearly that there should be a review mechanism and an investigative mechanism. However, it is true that every major police force in Canada, if I'm not mistaken, except the RCMP, actually has a civilian oversight body that is independent but actually has, in many cases, if not all, managerial responsibility right to budgeting and police policy and so on.

Why is it that you've stopped short of recommending that particular function in an oversight board and not just a review or investigatory board?

Mr. Paterson: There is quite an interesting conversation to be had about that. I wouldn't say necessarily that the British Columbia Civil Liberties Association would oppose the introduction of that kind of direct democratic accountability to the overall management, general guideline and policy-setting functions for CBSA or, for that matter, any other police agency that didn't have it.

When I was speaking before I was merely confining my remarks to the narrow issue that we're trying to elucidate with you here today, which is what should be done when these problems arise. However, there is probably a very interesting conversation to be had about that.

We don't necessarily endorse citing questions of the independence of police authorities and these sorts of things, and Justice O'Connor stopped short of that. There would definitely be an interesting conversation to have, and we'd be interested in having that conversation, but for the specific purposes today of trying to get these issues dealt with, this seems like a problem that is pretty easy to fix. The mechanisms are there, whereas doing that would actually require some fairly more involved legislating and creation of bodies and that sort of thing.

Ms. Pillay: I would like to echo what Mr. Paterson has just said, and I would also like to say that the CBSA is very distinct. Despite the fact that it has law enforcement powers, not all CBSA officers are police officers or have those law enforcement powers, and a lot of the CBSA's functions are carried forward under an administrative sphere that doesn't have all of the obvious safeguards or is able to operate in a sphere where the safeguards that apply in a criminal or law enforcement setting are sometimes dispensed with, which is precisely our concern. Therefore, we believe it is important to have some sort of systemic — and by ``systemic,'' I mean overarching — review to ensure that we don't have regional discrepancies. While we wouldn't be opposed to using the existing provincial mechanisms in place where they can be of help, we believe that they shouldn't be in place instead of a federal mechanism.

Senator Mitchell: We have heard testimony on a number of occasions that is quite striking to most of us, certainly to me and to Canadians generally, that there is no follow-up to see whether temporary foreign workers have left the country at the end of their term. Have you addressed that issue? If so, do you see any particular civil liberties rights or concerns in a perfunctory way in finding these people and asking them to leave?

Mr. Paterson: That becomes an issue of inland enforcement. We would say that the same civil liberties concerns would attach to those kinds of activities, which is a law enforcement activity, as would attach to other kinds of law enforcement activities. Last year, and some of you may recall, the TV show that CBSA engaged in sent out camera crews on inland enforcement raids of work sites. There was a famous controversy that BCCLA became involved in up to its eyeballs where they burst into a work site with camera crews and hauled workers out, interrogated them and said, ``Well, here's a consent form. Would you mind signing it so you can be on our TV show?'' We took strongly the position that, of course, it was a breach of a bunch of different rights. It was not the kind of thing we want to tolerate from law enforcement. It wasn't really an activity worthy of law enforcement. We complained to CBSA about that, and they have stopped sending their crews on inland enforcement raids, which is a good thing.

To answer your question, CBSA is within its rights to enforce the law of Canada, but they have to do it within the bounds of the Constitution. We think that normal protections should apply in those kinds of raids.

Whether you are looking for a worker who has a regular status and has overstayed some kind of status here, or whether it is a police officer trying to figure out if someone has committed a crime, we don't think that you should have a lower level of civil liberties when dealing with CBSA's law enforcement officers than you would have when dealing with other police.

There's a tiny carve-out there: We know that at the border there's a reduced expectation of privacy when crossing a border, and CBSA has some enhanced powers — all the more reason for better oversight. In saying that, we think the rights ought to be the same, and I'm not necessarily commenting that CBSA shouldn't be able to inspect your suitcase on a random basis.

The Chair: I would ask our witnesses to be a bit shorter in their responses as time is moving on. We have four or five more senators for questions.

Ms. Pillay: Given that's the case, I agree with Mr. Paterson's comments. The CCLA strongly believes that the constitutional safeguards definitely apply to all individuals who are subject to the jurisdiction of Canadian officials.

Senator White: Thank you both for being here. My question is going to surround the oversight discussion. Having worked in three provinces and three territories in policing, I found the oversight very different in each of those provinces and territories. I wouldn't support having the province oversee a federal agency because the differences could be pretty dramatic, for example, Ontario compared to Saskatchewan.

We have continued to talk over the last number of weeks about the move CBSA has made. You both referred to its being more of a police agency with more policing powers. We have a national police agency. Why wouldn't we move the CBSA into the RCMP so that we have oversight immediately? We would stop hearing questions around not having the powers they need to do the things a police officer does; and we'd be able to deal with the oversight concerns at the same time.

Mr. Paterson: I recognize that I have been kind of carrying on and leaving Ms. Pillay in a position of just agreeing with me. Maybe we could reverse the order so she gets she has a longer response and I could agree with her.

Senator White: That would be great. Thank you very much.

Ms. Pillay: It's up to the federal government to decide how they're going to carve out the agencies. Post-9/11, we have the existence of the CBSA as it is. As I understand, and pursuant to the O'Connor report, the CBSA works closely with the RCMP but still has very discrete activities, which is why they go on within the auspices of a separate agency. They do separate things from the RCMP, although there is some overlap. It makes total sense for the independent review mechanism and complaints mechanism that would oversee the RCMP to oversee the CBSA as well.

I'm taking your question but coming up with an answer that we could implement somewhat soon, I hope.

I don't want to take up the time of Mr. Paterson or the senators, but it is precisely because of the discrepancies regionally and among the provinces that we believe there needs to be a federal review mechanism.

Mr. Paterson: Naturally, I attach myself to the comments made by my colleague, but I will add to them. From a civil liberties perspective, it's a policy question in terms of which police force ought to be doing it. From our perspective, there may be a lot of practical reasons why you would want a separate agency to do this. We are kind of indifferent. We want the situation to be created where people's rights are protected as best they can be where law enforcement agencies and their review bodies enjoy the highest public confidence.

To my point about various provincial agencies, I want to be crystal clear that I'm talking about the on-the-ground, immediate, on-the-scene investigation — independent civilian investigation of critical incidents. We would not be in favour of a patchwork review body. We could be happy with provincial bodies doing the on-the-ground work because, from the practical standpoint, you don't need to dispatch someone on the Challenger out from Ottawa any time something goes sideways. You have people on the ground in the various provinces to do that.

Senator White: I don't disagree. I'm a big supporter of oversight and on-the-ground work. Apart from Ontario with SIU and B.C. with new powers and a new organization, the other provinces have the RCMP investigating the RCMP. I don't disagree that could work for the immediacy, but I am a little leery to suggest that every province would be equal with a federal organization. It is easier if you have an oversight of the actual investigation done federally. Wouldn't you agree?

Mr. Paterson: Sure. We agree there would be gaps in certain provinces. There are ways you could address that potentially by having neighbouring provinces with independent bodies.

Senator White: We have that now.

Mr. Paterson: Do those ones. There are different ways around that.

Senator Campbell: I don't have any questions, chair, as they have been answered. Thank you very much.

Senator Day: I have a couple of questions, but they're not extensive. Our viewers of this hearing would be interested in knowing who your members are and how you're funded.

Do you want to start with B.C. and then go to Canada, or do you want to start with Canada and then go to the BCCLA?

Mr. Paterson: I'm sitting here. Also, we should have different answers on this because we're different organizations.

The most recent number is that we have something close to 2,000 members. We have many more supporters in terms of the people who have identified to us that they support our work and who have donated to us. We are supported in a number of different ways, financially: We rely on donations from our members; we rely on funding from the Law Foundation of BC, which provides about a third of our budget — so donations are about a third, the law foundation is about a third — and the remaining third is made up of various other grants we may receive from time to time from different foundations to work on different projects. That includes a very small amount relative to our budget — about 5 per cent — of funding from the gaming grants within the province of British Columbia for our educational work and our direct service work with individuals.

Ms. Pillay: The CCLA has over 6,000 members drawn from all walks of life. We do work nationally as well. We are independent. Our funding comes primarily from donations from individual members as well as from grants that we receive from foundations. We do not take government money. We have accepted money from the Law Foundation of Ontario and other law foundations, and we also have an educational arm — the Canadian Civil Liberties Education Trust, a charitable institution and our charitable arm that engages in public education.

I would say we're an independent, non-profit, non-governmental organization.

Senator Day: The point I wanted you to confirm was that you are not funded in any significant way by the government, so you can act independently and advocate for civil liberties independent of the government. You have just confirmed that.

The chairman has been so kind as to allow me to pose a second question, with a very short preamble. It is a quote from Ms. Pillay, where you indicated that this body we have been talking about quite a bit here — a complaints commission — should also review the gathering and sharing of intelligence. That seems to me to be quite a different role. That's more of an oversight role and looks more like what SIRC is to CSIS, and it requires a level of confidentiality that may not be necessary with respect to a complaints body.

Are you convinced that this could work in one review body, and have you considered whether there is any possible role here for an oversight body that Parliament could provide?

Ms. Pillay: That's an excellent question. As you no doubt know, Justice O'Connor in his report made the distinctions between oversight and review, which you have just done yourself.

Nevertheless, in recommending this independent review mechanism, he also stated that it would be able to receive complaints as well as initiate independent reviews. In our view, given the seriousness of the tasks at hand with respect to intelligence, they informed the practices of CBSA in all the manners that I described in my initial presentation. So I would suggest that those should be subject to review/oversight.

Mr. Paterson: Senator Day, I would add that there are a number of different possible mechanisms one could envision to provide oversight for a panoply of national security activities undertaken by a variety of agencies. Some countries use a parliamentary committee. I know that has been proposed in Canada from time to time. Other countries use other mechanisms. We are interested in that conversation, and we don't have a particular prescription.

We would point out — and this criticism has also been made by the Canadian Civil Liberties Association — that any such mechanism, including the mechanism that's there now for the RCMP, really does need to have the power to gather information, up to and including solicitor-client privileges and cabinet privileges. There may be mechanisms for them to keep that information sequestered where needed.

One of the biggest problems with the existing RCMP oversight or review body is that it is often unable to get information it needs. This we see played out across the country with different police oversight bodies. That's a real concern for us.

In general, the lack of what we see as being sufficient oversight and accountability for national security activities is a big concern for us. It is one of the reasons why BCCLA has launched that lawsuit against the Communications Security Establishment Canada, saying that the existing mechanisms in place are actually unconstitutional, because there is no oversight body other than the commissioner, which we say is not adequate.

Senator Wells: Thank you to our witnesses for helping us through this. I have a follow-up question to Senator Day's. It is with respect to opening up our playbook to those who would like to take advantage of our system. What safeguards would Canadians have in place — and when I say ``Canadians,'' I mean the people who are not appealing through some of the systems that you are recommending — what safeguards would Canadians have in place that the protections that CBSA provides to Canada and Canadians would be protected?

Mr. Paterson: Any body like this has to make sure it has a power to reject complaints that are frivolous or vexatious, or where people are trying to bog up the system. We would never be in favour of an agency that simply provided a sounding-off board for everyone who has something to say about something they didn't like that wasn't substantiated. You would need to make sure that is done thoughtfully.

I stress that the way not to do it is to just say there shouldn't be any third-party complaints at all, because we don't want all these pesky organizations that come and testify in these sorts of things. We think that would be the wrong way to go. The smarter thing to do would be to make sure there's a test like many bodies have for dealing expeditiously with complaints that are frivolous.

If your question is going more toward the protection of information, and you have mentioned a playbook and national security-type things, robust protections will need to be put in place to make sure that any information brought into these bodies doesn't jeopardize agents in the field and those kinds of questions. We're quite reasonable in dealing with all those things.

Those kinds of things cannot be allowed to provide for a lesser quality of rights enjoyed by the Canadians who do complain. There's a balance to be struck always in these things.

Senator Wells: Thank you. I don't need to hear from Ms. Pillay on this.

The Chair: Colleagues, it is almost 4:30. Senator Dagenais, you were on the list, but we have only two minutes. Could you make it very short, and we will get a short reply if that's okay?

Senator Dagenais: My question is for Mr. Paterson. You have suggested we need more oversight of the CBSA, especially in the performance of its police functions. Why do you think the current process of oversight is not working, and what would you propose as the best form of oversight — an ombudsman or a review process similar to what we have with the RCMP complaints commission?

Mr. Paterson: Thank you very much, Senator Dagenais. I'll say very briefly that ombudsmen are used in some countries to do these kinds of thing for border police. Australia and New Zealand are two examples. We think having an ombudsman would potentially be a good thing, but not sufficient. Usually ombudsmen can only make recommendations. They don't necessarily have a lot of power, so we're much more in favour of a complaints and review commission model to have more teeth, power and resources to deal with these kinds of things.

The Chair: I'd like to thank the witnesses for taking the time to appear before us. We do have another guest via video. Once again, thank you for coming.

We are continuing our examination of CBSA and its role in determining admissibility and inadmissibility and in removing individuals deemed inadmissible. We are pleased to welcome, for our final panel today, Martin Collacott, former ambassador and spokesperson for the Centre for Immigration Policy Reform. He has had a distinguished career in the Department of External Affairs for Canada. His assignments have included director general for security services, and in this capacity he was responsible for the coordination of counterterrorism policy at the international level. He served as the Chinese-speaking member of the Canadian delegation that helped establish diplomatic relations with China, and served as High Commissioner to Sri Lanka and Ambassador to Syria and Lebanon. In these capacities he had major responsibilities for delivery of immigration and refugee programs.

Welcome, Mr. Collacott. We understand you have an opening statement. We have one hour for this panel. Please proceed.

Martin Collacott, former ambassador and spokesperson for the Centre for Immigration Policy Reform, as an individual: Thank you for inviting me to appear before you today. The issues you're discussing are important to Canada in a number of respects. One of the essential attributes of a sovereign, independent country is that it is able to maintain control over its borders and decide who can enter, as well as ensure that those who are allowed to come here temporarily as tourists, students or temporary foreign workers leave when they are supposed to.

And it's worth pointing out that among those who feel most strongly about this are the thousands of newcomers who have taken the time and trouble to come here legally and don't appreciate queue jumpers or those who decide to stay here illegally.

I'm particularly interested in the importance of the work of the CBSA because of the security issues. I'll begin by discussing some specifics and then make a couple of recommendations.

In relation to controlling entry into the country, the government recently introduced a number of useful measures — I believe most are supported by the opposition — to make the processing of temporary resident visas more efficient and cost-effective. In conjunction with the Beyond the Borders Action Plan with the United States, the sharing of information with the U.S. on who has entered each other's country provides a useful source of information on who has left the country. Other valuable initiatives include the introduction of the requirements for the nationals of 30 different countries to provide biometric data on the applications for visitor visas, study permits and work permits in order to confirm that the person who applied for the visa is the same as the one presenting themselves at the Canadian port of entry. The electronic travel authorization, which also flows from the Beyond the Border agreement, will also constitute a useful means of speeding up the entry into Canada for foreign nationals who are currently visa-exempt.

Having said this, however, the situation remains far from ideal.

Chapter 5 of the Auditor General of Canada's 2013 report, which is the subject of Preventing Illegal Entry Into Canada, stated that the CBSA does not always have the information it needs to target high-risk passengers efficiently. The agency has also made little progress in its monitoring of immigration lookouts since the 2007 audit and still does not monitor all missed lookouts, nor does it input examination results on all intercepted lookouts. The report found that 8 per cent of targets and 15 per cent of lookouts were missed. Further — and this is important — the CBSA does not have the information required to know whether it is securing the border by decreasing the number of people who enter the country illegally.

I would have to leave it to the CBSA to tell us to what extent this shortcoming has occurred because the agency has not yet fully implemented the systems required or it does not have the resources needed to do so. A shortage of resources could certainly be a factor — and could be increasingly so — as the CBSA establishment appears to have been substantially reduced in recent years. I notice in this regard that the president of the Customs and Immigration Union, Jean-Pierre Fortin, told this committee last Monday that his membership has decreased by approximately 700 positions since late 2011, which would seem to imply a corresponding decline in the number of CBSA staff available to do the job.

In another area related to the availability of resources to screen people coming into Canada, we also know from the 2011 Auditor General's report that very few face-to-face interviews are conducted by visa officers with visa applicants, and a survey it carried out found that 65 per cent of visa officers indicated that the inability to validate applicant information was a challenge in determining admissibility. About half of the Canada-based officers indicated they often did not have sufficient information from applicants to assess whether an applicant was inadmissible due to security concerns.

Such interviews are important for a number of reasons. A face-to-face interview not only assists a Canadian visa officer to get a better idea of whether an applicant is likely to constitute a security threat to Canada — whether they are likely, for example, to have extremist views which are in conflict with Canadian views, values and objectives — but such an interview also provides an opportunity to give a prospective immigrant important and accurate background on what to expect in terms of job opportunities and integration into Canadian society.

I will give one example of the latter. Members of the committee have no doubt heard of the case of Mohammad Shafia, who is originally from Afghanistan and immigrated to Canada with his family in 2007. In 2012, he and his wife and son were sentenced to life in prison for the honour killings of his three daughters and first wife. The reasons why they murdered them was because the daughters persisted in following Canadian standards in socializing and having boyfriends while the parents insisted that they adhere strictly by the standards that would have applied in Afghanistan.

Had the parents been counselled on the fact that you can't come to Canada and enjoy all the benefits that this country offers and, at the same time, expect to live in a cultural cocoon according to standards in effect in your country of origin, Mr. Shafia and his family might well have decided to stay where they were instead of moving to Canada and now being either dead or in prison.

Somewhat related to the issue, I notice that one of the witnesses who appeared before you last Monday raised concerns about the integration of the Muslim community in Canada, which I gather came as somewhat a surprise and even shock for some committee members. I'm not going into these issues in my current presentation, but I will say that I think they are important and need to be discussed, and I will be prepared to comment on them during the question portion if any members wish to ask me about them.

These are not the only concerns I have over the question of whether sufficient resources are available to ensure that people who constitute a danger to Canada are prevented from entering our territory.

On May 29, 2006, the deputy director for operations of CSIS told this committee that over the previous three years, around 20,000 immigrants had come to Canada from the Pakistan-Afghanistan region, which, of course, is among the highest terrorist-producing regions in the world, and that his organization was in a position to vet only one tenth of these. I don't know if this situation persists, but if it does, we are increasingly placing at risk the safety of Canadians.

Returning to the question of resources, the problem we've got ourselves into is that we are determined to bring in large numbers of immigrants as well as visitors, foreign students, temporary workers, et cetera, and at the same time do it largely on the cheap. Many of our newcomers are from parts of the world where there are serious security concerns as well as high rates of fraud, which means extensive resources must be spent on confirming that applications and supporting documents are genuine and where many applicants may not have a realistic picture of what they will face in Canada.

If the government is not prepared to make available the resources needed to do an adequate job of interviewing and screening those who are allowed to enter the country, we do have an alternative. The number permitted to come here, particularly foreign workers, whether temporary or permanent, can be reduced. The fact is, we don't need immigration on anywhere near the current scale. Our immigration levels, which are among the highest per capita in the world, are justified in large part by the claim that we're facing a labour shortage of crisis proportions. Studies by two major banks in the past year indicate, however, that the claim we are facing such a massive crisis is a myth. According to the bank studies, current and predicted shortages are in the normal range and even less serious than they were a few years ago.

The Parliamentary Budget Officer, moreover, confirmed just last week that while there were pockets of labour tightness in some sectors and regions, Canada is not experiencing significant job or skills shortages, contrary to what parts of the private sector, as well as various levels of government, claim to be the case.

I appreciate, however, that today's agenda is not a discussion about whether we need more or less immigration, although this is a very important topic, but rather what needs to be done to ensure better control over our borders in terms of who should be allowed in and making sure those who shouldn't be here are removed in a timely fashion.

I will conclude with two specific recommendations. First, we should have a comprehensive system of recording the entry and exit of all non-Canadians. Such a system is important for more than just one reason. In the case of permanent residents, we must be able to know how long they spend in Canada in order to determine if they fulfill the residency requirements necessary to apply for citizenship.

In the case of people admitted on a temporary basis, whether students, tourists or workers, we must know if they have left when their visas expire in order that we have a good idea of who has remained here illegally.

In the case of illegals, we not only don't know how many are here at present, but we do not have the resources to locate many, if not most, of them and then remove them. Estimates of how many people without legal status are currently in Canada vary widely, anywhere from several tens of thousands to several hundreds of thousands.

There are, of course, those who offer support to illegals out of sympathy. For example, the Toronto and Hamilton city councils have both declared that they are sanctuary cities, that they will provide public services to illegals. Their sympathy, however, is misplaced.

If we are going to allow someone to stay in Canada, we should ensure they have full legal rights to be in the country so they can enjoy all the privileges and benefits that go with it rather than encourage the development of an underclass and have them and their families live in the shadows.

When the Toronto Star reported on Toronto City Council's decision to declare Toronto a sanctuary city in February of last year, it predicted that the number of illegals was expected to surge in 2015 when many legal but temporary foreign workers will see their four-year work permits expire and potentially move underground.

The more people we allow to stay here illegally, the more will choose to do so and the greater our problem becomes, as has happened in the United States where there has been a political deadlock for several years over what to do about the estimated 11 million or 12 million illegals living in that country.

The solution to what to do about the problem of illegals is not to let it develop in the first place, and that's my second recommendation.

The formation of a large illegal population can be prevented by a number of measures, including knowing the extent of the problem by having entry and exit controls, by having sanctions on employers who hire illegals, by locating and removing people here illegally as quickly as possible and by wider use of detention to ensure that those identified for removal do not disappear into the woodwork.

These measures will not come cheaply, but they will almost certainly be cost-effective in the long run given the likelihood that increasing numbers will try to stay in Canada illegally to the detriment not only of themselves but also their family members and the people who have come here legally and whose job prospects and pay will be undercut by the availability of cheap, exploitable, illegal labour.

So these are two recommendations: first, to have a comprehensive system for recording the entry and exit of all foreign nationals; second, to prevent the growth of an illegal population in Canada. These will require a substantial increase in resources for the CBSA, as well as for other federal agencies and departments, but the fact is that in the coming years we can expect to see increasing pressure by people in poorer parts of the world to settle in more affluent countries such as Canada, and unless we maintain control over who comes here and how many come here, we can expect increasingly serious problems in the future.

That's my presentation. Thank you.

The Chair: Thank you, Mr. Collacott.

I'm wondering, colleagues, if I can start off the questioning, and it goes back to the question of face-to-face interviews prior to individuals being allowed to come into the country.

You talked about the fact that it takes a lot of resources and a lot of time, obviously. I'm wondering if you would be prepared to comment with respect to the comment made by a witness earlier today about increasing the cost to the individual for the purposes of coming into the country so that the costs of the actual department for taking on these responsibilities is covered as opposed to finding it from general revenue. Is that done in any other country that you know of, in view of your obvious experience in your past careers?

Mr. Collacott: Yes. For instance, the arrangement whereby people from 30 countries can get biometric data collected at the visa application centres before they come here. There are more than a hundred around the world.

We have a charge for that, and I believe we can compare those costs with what other countries charge for similar services. It's basically to cover the cost of the actual administration of an individual biometric test and to have it available at port of entry.

That doesn't cover all our costs. Although applicants might find this costly compared to what they had to pay in the past, we would still have to have facilities overseas, particularly where we're conducting individual interviews that are not covered by the applicant. It costs money to keep a Canada-based staff and their family overseas.

So, yes, there are going to be higher charges for the applicants, but they won't come anywhere near to covering all of the costs when you consider keeping Canadians overseas to conduct interviews, which I think we should be doing more of, not less of. We used to do more. We've cut costs, but we didn't cut the numbers of people who had to be screened.

The Chair: Just to explore that a little further with respect to the actual face-to-face interview, it's very interesting to hear a number of witnesses over the past weeks who have all said that an experienced officer, within 30 seconds of an interview, can come to certain conclusions in respect to that particular individual. I find it interesting that one is able to acquire that type of skill.

I want to go back a little further with respect to overseas and those who are paid to conduct interviews. You are recommending that they be Canadians who are sent there from Canada to do those interviews as opposed to local individuals being hired to do that type of interview?

Mr. Collacott: Definitely. I was in charge, when I was ambassador to Syria, of a visa section of nine Canadian-based officers, three from Quebec. You can have locals do a certain amount of processing, but we have to pay locals what the going rates are — a good standard, but basically the going rate. There is a problem of locals being pressured by relatives or being offered bribes. We've had very good locals in most of our posts, but certain things have to be done by Canadian-based officers if you're going to be sure you get the right information. There are no shortcuts.

I might mention that sometimes you can figure out in 30 seconds whether somebody poses a danger, but usually it takes somewhat longer, especially if you're dealing with a skilled applicant who doesn't want you to know what their intentions are.

Yes, the few seconds work sometimes, but often it takes much longer, especially if you have to look into whether some of the documents submitted are fraudulent. That's one of the things that really slow us down. That's not an interview question, but it means that in some countries a high percentage of documents submitted are fraudulent and time has to be spent on tracking those down and trying to figure out whether they're genuine.

Senator Mitchell: Thank you. I'm interested in this biometrics thing. I don't see how exactly it works to be the panacea that some are construing it to be. It seems to me that clearly you get more information on somebody who's applying to come; and when they arrive, you could make sure it was them, because the biometrics might be more reliable than whatever other ID they might have been able to forge. But it doesn't solve the problem being construed, namely, not knowing what their background was. It might solve the problem that if their documentation was stolen and they tried to use it to get into a country like Canada, that wouldn't work any longer. Is that about right?

Mr. Collacott: As I understand it, yes, I think that's correct, senator. One of the major purposes is to make sure that the person who was issued the visa and approved is the same person entering the country, because there have been quite a few occasions where somebody gets a visa and then uses it to get someone else into the country. But it doesn't necessarily deal with all the other issues you mentioned. I think we have to find ways of dealing with those in-depth as well.

Senator Mitchell: You properly outlined that there are two phases to this idea of temporary foreign workers staying beyond their limit. First is knowing who they are, and second is apprehending and deporting them. The latter would seem to be the more complex, complicated, difficult and costly of the two, but in this digital age, how difficult can it be to register that somebody ran their visa and passport through our computer system when they arrived? It happens to me every time I come back. Then, six months later, some red flag comes up because yesterday that person was supposed to have left and their passport didn't get run through the machine as they were leaving. Why wouldn't that be done? It seems to me to be a slam dunk, obvious, easy.

Mr. Collacott: Largely due to resources and technology. We are now increasing our capacity for checking on people when they come in. Having exit screening at all the ports where they might depart is quite a major effort. The Americans are still working on getting their system up and running. So this is not an easy slam dunk, but I think it's very important.

If we do have that exit screening, it still doesn't absolutely guarantee anything. When somebody's name doesn't show up when they should have left, when their visa expired, it doesn't guarantee they're in the country. They might have crossed the border illegally, but probably those numbers are pretty small. If we know that somebody had a two- week visitor's visa and they haven't shown up to have their passport scanned before leaving the country, we're pretty sure they're here. That doesn't mean they're easy to find, and going out and looking for all of them without any leads can be very time-consuming.

I think one of the things we should be doing is discouraging, in various ways, people staying on illegally — that it's just not going to benefit them. Many people come on a visitor or student visa and stay on and work here. As I mentioned, one of the means to discourage that is to have employer sanctions, as they now have in the United States, for someone who hires a person who is here illegally, and the onus is on the person to prove they're here legally.

It's not a simple issue. It will take several different techniques to control it. But we don't want to have a burgeoning problem of illegals, as they have in some countries, and the United States in particular.

Senator Wells: Thank you, Mr. Collacott, for appearing. You mentioned that Canada may be doing things on the cheap, and you also mentioned that possibly there are a couple of policies or practices we could change. Is it as simple as that or does CBSA — or Canada's structure that protects our borders, including CBSA — is that a structural problem more than a money or small policy issue?

Mr. Collacott: There probably are some structural problems, and I think these have been cited from time to time by the Auditor General. I think some work has been done on that. How much more needs to be done, I have to frankly confess I'm not an expert. But I think there is substantial evidence that there's a lack of resources, which is the part I'm focusing on, because I feel more comfortable with it.

I have no doubt there are structural problems that can be dealt with that could improve the efficiency of the whole system, but I can't claim to be an expert in this area.

Senator Wells: Thank you very much.

Senator Dagenais: Thank you. How concerned are you about the number of people for whom immigration warrants have been issued and those who are in the country with removal orders?

Mr. Collacott: This is a concern. The ones who actually have removal orders, we don't know what percentage they constitute of the whole. There may be many more that should have left that don't have removal orders. We do know, for instance, if a failed refugee claimant who has been turned down is ordered to go and they just don't turn up for their hearings. We're particularly concerned about those who have been ordered removed who have a serious criminal record.

The ones for whom there are removal orders are several tens of thousands in number that we haven't removed. We certainly should be getting after them if we can locate them, but they're only part of the problem, because there are many who are probably here illegally. We don't have removal orders for them and we don't even know how many there are.

Senator Beyak: Thank you very much, Mr. Collacott, for your presentation.

I wonder if you could tell our viewers why you think the face-to-face interviews with an inspector are so important. We discussed how to fund them and that we might need more staff. Why do you see them as so important? I agree with you.

Mr. Collacott: What was the group you were referring to, senator?

Senator Beyak: There's a general concern that we need to have face-to-face interviews with people who want to enter the country, and that there are resource shortages. You've told us how we can get more funds to do the interviews, but why do you think face-to-face interviews are so important?

Mr. Collacott: Because there are things that you can find out and that you can tell the interviewers. I'm thinking here mostly of people who want to immigrate to Canada and live here permanently. I mentioned a couple of reasons why. We can make an assessment of whether they constitute a security threat, a better assessment than simply the paper review where we ask the local authorities, ``Has this person got a record?''

Also, I think it is important, particularly when we're taking large numbers of people from parts of the world with different traditions and different values, that they have an accurate picture of what to expect when they come to Canada. We leave it to them to look online and see what things are available, but a good visa officer can be very helpful in letting that person know what to expect. Perhaps they might decide that Canada isn't the place for them, as the Shafias should have decided instead of coming here.

We used to do interviews with most people coming as landed immigrants, particularly from some of the further and more culturally different parts of the world, but, basically, we have just cut down on those to save money. The numbers stayed up there. I know all parts of government have to economize, but I think this is a false economy. I don't think we're being fair either to the immigrants or to ourselves by not doing these and very often getting people coming here who have different ideas about what Canada is about and having problems of one kind or another or giving us problems. I think these face-to-face interviews are very important.

Senator Day: I would like you to think about, with all of the experience that you have had, the machinery of government from the point of view of immigration. We created the Border Services Agency a while back, and it probably wasn't in existence for a lot of your career. Was that an improvement over what we had previously, or should we be thinking of readjusting all of this again so that we can do the job that has to be done most efficiently and effectively?

Mr. Collacott: It wasn't in existence when my career was still on. It was created after 9/11 with the idea, I guess, that if you had an agency concentrating specifically on controlling the borders and who gets in and removing people, that would improve the institutional knowledge over just having this as a section of Citizenship and Immigration, which it used to be. Whether or not it is an improvement, I don't know. We made the decision, and I think CBSA is able to develop expertise to a greater degree in its specific areas of responsibility than was probably possible under Citizenship and Immigration. I don't have a really comprehensive judgment, but it seems to me to make sense to the extent I understand it. There are jurisdictional issues sometimes between different groups and different agencies and the extent to which they cooperate closely enough, but these are things that can be worked on. They're not insurmountable.

Senator Day: At our various foreign embassies, is it a border security person who is there now or an immigration person, along with RCMP personnel, that helps to do the screening at the entry point?

Mr. Collacott: Well, we have visa officers, certainly. We also have, on a regional basis, RCMP and CSIS officers who do liaison to find out security checks and criminal checks — background.

I should know if there are CBSA officers overseas. I don't believe there are because, basically, their mandate is to deal with what happens when somebody enters the country.

I could be wrong in that respect, but I assume that they would not have officers posted overseas. They certainly depend on the information they get from visa officers and from CSIS and RCMP.

Senator Day: Just to follow that up, I'm just concerned that we're creating more silos here. To the point that you made earlier that we need more resources and that there should be face-to-face screening for everyone who is coming, maybe we're getting to the stage where we just can't do that because of the volume of people who want to come to Canada and these various silos that we're creating to make the job less efficient.

Mr. Collacott: The term ``silos'' implies that they're operating separately. While there is a rationale for having agencies concentrate on particular aspects of the whole picture, I wouldn't automatically assume that because they have their separate mandates they're going to operate separately. They must share the information and be integrated. A good system can have that level of specialization and institutional knowledge and still cooperate well with other agencies. That hasn't always happened. When CSIS was first formed, for instance, there were real problems in communicating with RCMP on some issues, as in the Air India case. You have to work at making sure that what you describe as silos don't remain silos and operate separately. I think, though, that there is enough area of specialization that there's a justification for having different agencies involved. If they become really expert in their fields and cooperate fully with the other agencies, I don't think there should be a loss of efficiency or waste of resources.

The Chair: Mr. Collacott, I would like to follow up on an area that you referred to — the employers having a responsibility and whether or not it should be illegal to hire those who are in the country illegally. Before we go there, just for colleagues here, not too long ago, I read an article about a family who had entered the United States illegally. They were in a city. They had two kids. To put it into perspective, it was a heart-wrenching article. They couldn't allow the kids to go out and play because of the fact that they were illegal and might say something to their neighbours. You can't imagine what these people feel like with respect to being stateless in a country that they see is better than the country they left but where, at the same time, they've put themselves in a situation and the country in a situation, which is something nobody wants.

At the same time, you have an immigration policy that allows people legally, in a lineup, to go through the process and a substantial number of people coming into the country and not jumping the queue. You have that question.

Going back to — you just briefly mentioned it — the question about the employer who hires the individual here illegally and who, in many ways and many times, I'm sure, is taking advantage of them, much to our chagrin. Is that not a provincial responsibility if you put such a law into effect, or would it be a federal legislative move that would be put into effect to try to ensure that that type of employment couldn't occur?

Mr. Collacott: It would probably initially be a federal move. I'm not expert enough on the employment responsibilities to say that the provinces wouldn't be involved. Very often, provincial governments are heavily involved in immigration-type issues in terms of things like welfare, so I guess all I'm saying is that you need rules in place that somebody is applying and administering. Again, whether or not it will be done by the feds, I expect the provinces will be involved, but you have to have workable rules that are actually being applied because, in the United States, they found that one of the biggest problems of perpetuating the presence of illegals is that people will hire them and then exploit them because they're vulnerable. They can pay them low wages and they can fail to pay them at all sometimes.

You also mentioned the heart-rending tales of people who have been in the United States for a long time, particularly those who are illegally there. Their kids have grown up there and sometimes they speak only English. They don't know any other country. These are really sad tales. One of the things the Americans will ultimately have to do is find some way of accommodating people who have lived most of their lives in the United States and still have no legal status.

The real answer to it is not to let that situation develop, to make sure that people are here legally from the outset and have full legal rights. Once you start letting the situation drag and you overlook the problem of illegals, you are going to have more people coming. They still may be better off than they were in their home country, even though they're exploited, but you will have all sorts of problems down the line including for their children. Before this becomes a massive problem in Canada, let's make sure it doesn't grow; let's try and eliminate it as a problem.

Senator Mitchell: I would like to follow up on that. In general terms, and I oversimplify this, there are probably two categories of temporary foreign workers. One is the category of those who work in fast food restaurants, and maybe the pressure isn't great now but there really was a pressure as I understand. Certainly, I heard a lot about it. The other issue is that of big industry. I have some sympathy for the fact that unions would have a contract at $28 an hour and the industry can bring in people at $15 an hour. They advertise at $15 an hour. Nobody takes the job, therefore they have passed that hurdle and they can bring somebody in at $15.

If you're saying that there really isn't a shortage that justifies the temporary foreign workers issues — and certainly in that category I might agree — is it just that this is a mechanism for reducing wages and putting pressure on union wages in this country?

Mr. Collacott: It is largely. One definition of a shortage of workers is that employers can't hire the people they want at the wages they're prepared to pay. Now, some of the best analyses say that if there's a shortage of workers, wages go up to take advantage of those who are available. Where people need to get training they get the training. In the old days, for instance, we used to say we're short of workers in these areas so this is where we want immigrants. By the time the whole system had been ramped up, the labour shortages have been solved by the very means I just described. Wages went up and more Canadians got into the work force to take advantage of them.

When you're talking about fast food workers, the fast food operations want to keep the wages down because there are lots of Canadians out of work, including young people, but they want to make at least a living wage. You're going to prevent those wages from rising by bringing in a lot of people from abroad. The ones who work in fast food operations are usually from poorer countries and they plan to stay here indefinitely if they can. That is why we're going to have a surge of illegals after 2015 when the first bunch of four-year contracts run out, and you're going to have a problem.

It even applies sometimes to the higher skilled areas that we're not prepared to let wages adjust to the market. If employers can bring in people and pay them less than what they'll pay Canadians, why not do it? That's your bottom line. Is it good for Canadians though? Basically what the two bank studies said, and what the Parliamentary Budget Officer said, is we have enough people in Canada providing we have the right incentives and, of course, we have to improve our apprenticeship programs. There's a lot of work that needs to be done, but there is no reason why we should keep bringing in foreign workers when we have enough human resources here already if we got our act together.

Senator Mitchell: It is a failure of government policy that has created this aberration, and we could fix it with just better administration.

Mr. Collacott: Some political decisions have to be taken. I'll be frank here. Interestingly, all the political parties advocate high immigration levels for one reason or another, and there are a lot of different reasons. Nobody wants to take on a discussion of how much immigration we need. Our particular group, the Centre for Immigration Policy Reform, is trying to get some discussion going and we're non-partisan. We don't support any particular party.

We really do need a national discussion. We need a comprehensive national labour program to make the best use of all our people. Look at all the young people who are unemployed. Their unemployment levels are twice that of older people, and a lot of their degrees aren't needed on the market. We have all sorts of people who have been laid off from industry as our manufacturing sector has declined. We have a lot of Aboriginal people who hope to find work. We have older Canadians. We have all sorts of human resources we aren't fully utilizing, as well as recent immigrants who can't find jobs according to their skills. If we were doing that properly, we really wouldn't need the large-scale immigration we're now getting.

We should be thinking about it, but no political party is prepared to bite the bullet. What has happened in Europe is there are extremist right-wing fringe parties forming because mainstream political parties there are failing to discuss these issues and people are concerned about them. Most Canadians are pro-immigrant. My parents are immigrants from England, my wife is an immigrant from Asia and I'm pro-immigration. However, that doesn't mean we're doing it right, and I think there are good arguments for saying we're bringing in too many people at the present time and not making good enough use of the people already in the country.

No political party is prepared to take up that issue, unfortunately.

The Chair: Mr. Collacott, I'd like to thank you for coming here today. You obviously bring a wealth of information for us in view of the career you've had and the places you've been over the last number of years. Perhaps you're someone to whom government should look for counsel in respect to not only looking back but looking forward for the long term.

Your point is well taken on the question of employment and unemployment. I do wonder why, when you see an unemployment rate of 6 per cent or 7 per cent and at the same time you're bringing in individuals to take these jobs in Canada, they're not necessarily skilled jobs and we're paying people to be unemployed and Canadians to be unemployed.

The purpose of our study is to look at the situation as it applies to CBSA, and we appreciate your wise counsel. I'm sure we will take your comments into account. Therefore, we would like to thank you.

Colleagues, the meeting is now adjourned.

(The committee adjourned.)

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