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

Issue 28 - Evidence

The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-11, respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger, met this day at 1:40 p.m. to give consideration to the bill.

Senator Michael Kirby (Chairman) in the Chair.

[English]

The Chairman: Senators, we are here to continue our discussion of Bill C-11, respecting immigration and the granting of refugee protection to persons who are displaced, persecuted or in danger.

Our first panel today consists of Mr. Bélanger and Ms Legars from the Shipping Federation of Canada, Ms Sparling from the Organization of Professional Immigration Consultants and Mr. Kurland from LEXBASE. Thank you for attending today.

May I remind all the witnesses that there will be many questions asked of you, so please keep your opening statements brief. Thank you again.

Mr. Bélanger, please proceed.

[Translation]

Mr. Gilles Bélanger, President and CEO, Shipping Federation of Canada: Mr. Chairman, thank you for your invitation to appear. I am accompanied by my colleague, Ms Anne Legars, Director of Policy and Government Affairs.

[English]

The federation represents virtually all ocean vessels trading internationally to and from ports in Atlantic Canada, the St. Lawrence River and the Great Lakes.

You have already received our brief with its appendices, but there are two messages we wish to convey to you today. First, there is a glaring need for the immigration process to speed up and to dramatically increase its efficiency. Second, the liabilities of transportation companies should be more clearly defined.

For years we have been repeating that the delays of the Canadian immigration legislation concerning refugee status claims, as well as the very low rate of removal, are widely known abroad and amount to a blatant invitation to abuse of the system. As a matter of fact, Coroner Claude Paquin, in his investigation of the deaths of three Romanian stowaways in Montreal, concludes in his report, after interviewing officials at Liverno and Genoa, that the delays are viewed as an invitation to abuse our system because it is so lax. That report has been filed with our brief.

For years we have been repeating that this incentive encourages over 100 stowaways each year. Some years, hundreds of them risk their lives, the safety of the ship and the environment to stowaway on our ships. For years, we have repeated that thousands of stowaways and deserters, who were denied refugee status, have simply disappeared underground because of the shortcomings of the system.

Now, because of the recent dramatic terrorist events, figures are coming to light claiming that there are currently 27,000 aliens who were issued removal orders, and whose trace has since been lost by the immigration department. Consequently, they remain illegally in Canada or possibly they have gone across the border. When that sort of problem reaches such a magnitude, it is not only a transportation company's concern, it is a safety concern for our country as a whole.

These 27,000 aliens must earn a living in some way, yet they also must remain invisible. Such a dilemma is likely to drive some of them to illicit activities.

Let us be clear: We are not asking that Canada stop welcoming refugees. We are asking that Canada speed up and strengthen the process in Part 2 of the bill by accelerating the processing of claims, by rendering effective provisions relating to removal to safe third countries and by facilitating the effective removal of the persons who are subject to a removal order. Why not return stowaways to the point of embarkation if that is located in a safe country?

More specifically, we believe that the proposed legislation should provide: first, that prompt processing of refugee claims be one of the objectives of the legislation, just as it is one of the objectives of the immigration process; second, that there be a 30-day limit for making refugee claims which should prevent persons who have remained illegally in Canada for long periods to claim refugee status once they are discovered, and third, that a claimant shall appear in person to receive the decision, otherwise the claim would be deemed abandoned.

We believe that more control should be dedicated to the closure of the refugee determination process because it is at the end of the process that claimants who were denied status eventually become illegal immigrants by disappearing underground. How can we expect the system to work when we send removal orders by mail?

We believe that these measures would deter potential claimants from trying to enter Canada to apply for refugee status with the hope that they would be able to remain here for many years regardless of the results of their claim. We believe that this would enhance security in our country and improve safety on our ships by reducing the number of potential stowaways and deserters.

[Translation]

We need to clarify the obligations of transportation companies. According to our reading, subsection 148(1) makes transportation companies that operate in good faith subject to a new criminal liability in addition to their current financial liabilities.

The new paragraph 148(1)(c) and its criminal implication would be inequitable for ships that have stowaways on board, against their will, by definition, in addition to international cruise ships that keep on board passengers who are not authorized to disembark for land excursions.

We strongly opposed what appears to be a new obligation that would make the carrier liable for any medical care that may be required by people it transports on visits to Canada. There is no concern about obligations for medical treatment for stowaways who may be transported without our knowledge. However, cruise ships, under the new act, could find themselves required - this is provided for in the act - to provide medical treatment to their passengers here in Canada who have a right of entry and a right of visit. This would appear to be an inadvertent provision of the act, but the wording is certainly there in the act.

According to the informal discussions we held with the Department, they do not intend to introduce new obligations for transportation companies.

We are asking the Committee to revise the language used in these sections because it appears to us that in both instances, additional obligations are provided in the new act.

Mr. Chairman, I would be happy to go into further details about the Federation's position during question period.

[English]

Ms Jill Sparling, President, Organization of Professional Immigration Consultants: Honourable senators, thank you for giving us the opportunity to appear before your committee. The Organization of Professional Immigration Consultants of Canada, known by the acronym OPIC, is the largest professional association for immigration consultants in Canada.

Like me, many of our members are former senior immigration officers. We believe that we have unique insight from both sides of the desk on the workings of the immigration system.

My first point is that most of the problems that beset our immigration system, and there are many, will not be resolved by legislation. Your Special Committee on Security and Intelligence, chaired by Senator Kelly, reported in January of 1999. It was remarkably prescient about recent events.

It stated on page 36 that:

[...] deficiencies in Canada's immigration policies and pro cedures appear to be primarily a factor of resources, rather than gaps or inadequacies in the legal framework. In the Committee's view, it is imperative that Citizenship and Im migration Canada has the technical, personnel and other re sources necessary to protect the security of Canada and Ca nadians.

We totally agree with that statement.

The problem with CIC is that for the past 30 years, the department has been treated as a junior department in the constellation of government organizations in Ottawa. It has not been given the resources, personnel or political attention that it deserves. CIC has been starved for resources for so many years that it is unable to administer effectively our current legislation, let alone be able to adapt to or implement new legislation.

In our opinion, morale in the department is at an all-time low because of resource constraints. For example, Canada, to my knowledge, is the only developed country that uses local employees in posts abroad to issue visas. The security implications in that are obvious.

I urge this committee not to support the rhetoric that this legislation will resolve the problems and to use its report to plea for the resources and political attention that CIC needs so badly.

My second point is that I could quote from data supplied by Statistics Canada, the Canadian Federation of Independent Business, the Conference Board, the Canadian Association of Management Consultants and others to demonstrate that Canada is currently facing a major shortage of skilled workers, entrepreneurs and investors. According to the CFIB, up to 300,000 job opportunities for skilled workers are not being filled in today's economy. According to the Conference Board, by the year 2020 there will be a shortfall of nearly 1 million workers needed to support the Canadian economy.

This increasing demand for skilled workers will have to be met largely through immigration, and yet, we will still have to compete for these skilled immigrants, entrepreneurs and investors with the United States, Australia, New Zealand and elsewhere.

We readily acknowledge, particularly in light of the events of September 11, that the first objective of our immigration legislation should be to protect national security. However, our concern is that Bill C-11 will make it more difficult for Canada to compete for the best and the brightest.

Overall, our procedures are too slow, the department is woefully understaffed and some of our document requests, particularly in regard to business applicants, are overly zealous.

My third and final point is one that is particularly dear to my heart and to OPIC members. One of the objectives under which our association was originally established in 1991 was to secure the regulation of immigration consultants. We have been working toward that objective for at least ten years, to date with no success.

We have made representations to the minister and to the Department of Citizenship and Immigration. We have provided a fairly detailed proposal for a professional, self-governing regulatory framework for immigration practitioners that does not offend provincial jurisdiction. However, the file is going nowhere. In 1990, the Canadian Bar Association recommended the creation of a self-governing regulatory regime for non-lawyer immigration consultants. The ninth report of the Standing Committee on Citizenship and Immigration strongly recommended immigration consultants be regulated within a professional self-governing system.

It is with some irony that we note that the report was issued in September of 1995 and was entitled "Immigration Consultants: It's Time to Act." Nothing has happened since then.

Earlier this year in submissions to the Supreme Court of Canada in the Mangat appeal, counsel for the Attorneys General of British Columbia and Manitoba, the Law Society of British Columbia and Manitoba, OPIC and the Attorney General of Canada argued for the regulation of immigration consultants. The Attorney General of Canada repeatedly told the justices how important consultants are to the running of CIC's boards and tribunals.

Three years ago we signed a memorandum of understanding with the Department of Immigration regarding a self-regulatory process, yet nothing has happened from that time forward. Today with no training or experience in immigration law, policies or procedures, anyone can hold himself or herself out to be a consultant. Regulating immigration consultants would, therefore, protect immigrants from incompetent practitioners and serve the public interest.

Today we know that some people who present themselves as immigration practitioners charge usurious fees and make unrealistic promises to their clients. Regulating consultants would, therefore, protect people from such dishonest practices.

It is also no secret that some people who present themselves as practitioners are directly or indirectly involved in the smuggling of illegal aliens. Regulating enforcement consultants would help the enforcement agencies to get at this very odious business.

In many respects, we are Canada's first line of defence against illegal aliens, criminals and persons who constitute a security threat. We, therefore, think it appropriate that such a sensitive profession be regulated because we do not want a balkanised regulatory system across Canada.

We are committed to a national, professional, self-governing regulatory framework, which is the position that we argued at the Supreme Court. The federal government has had the statutory power to regulate the immigration consultants since 1976 through subsection 14.(1) of the current Citizenship Act. In the bill before you, clause 91 again confirms the federal government's statutory power to regulate immigration consultants.

We are here today before you to make a plea, yet again, that the committee use the opportunity to urge that the government use its statutory power to regulate practitioners.

That concludes my formal remarks. I would welcome any questions you have.

Mr. Richard Kurland, Editor-in-Chief, LEXBASE: Honourable senators, thank you for inviting me back to this committee.

I will be brief because I suspect that our time may be most valuably used in the question and answer session.

LEXBASE is a non-profit legal publication that, monthly, summarizes decisions rendered by the Canadian Federal Court system as it pertains to immigration citizenship matters. LEXBASE is received by not only most senior immigration officials in our Canadian embassies, but by mainstream print and electronic media. LEXBASE provides between three and four national news stories monthly to those individuals. As well, 70 per cent of the Canadian immigration bar receives LEXBASE, as do all provincial immigration departments.

In our submission, and perhaps we may briefly have two today, we were going to specifically address what we perceive to be an expensive mistake in the new law. The bill adds an additional level of appeal where there is a decision from a visa officer. The statistics clearly demonstrate that visa officers overseas are wrong, according to the courts, in the majority of challenged decisions.

The package provided today provides the CIC internal information obtained by virtue of the Access to Information Act. CIC's justification for imposing this additional level of appeal, which lengthens the Federal Court process at the expense of Canadian taxpayers, is based on an increase between 1993 and 1999 of cases filed at court from the low hundreds to the high hundreds.

It is to be noted that over the same period, the total number of Canadian visa officers fell from 300 to 200. The number of locally engaged, non-Canadian personnel performing immigration decisions mushroomed from the low 100s to over 1,000. In addition, new rules to the Canadian immigration system were introduced in that period creating the need for test cases in court.

Finally, and to the department's discredit, a secret telex was circulated. Copies are included in the materials.It was sent to all visa officers to interpret the phrase "some or all" as "all". The technical thing is a thumbnail print. A person must have some or all of a list of requirements to succeed in his or her immigration application.

The law said you need to hit "some or all." The internal, secret telex said use "all." This was kept hidden from the immigration practitioners and their applicants.

In the context of the September 11 tragedy, I have placed - and this may come as a surprise to some - a two-page, of three-page, document involving a statement by the Department of Citizenship and Immigration noting that as of March 23, 1999, CIC was aware that at least 50 foreign-based terrorist groups have representation in Canada. The groups are named and the two page memo deals with the counterintelligence ramifications surrounding the danger of having terrorists in Canada.

Parenthetically, and I will let it go after this statement, I have had a chequered career. During the course of it, I have met people from Hezbullah, People's Liberation Organization, (PLO), MI5, MI6, KGB, CSIS, friends from China and U.S. folks as well. I am one of the very few private sector individuals not subject to the Official Secrets Act who may assist regarding questions concerning terrorist groups in this country. Thank you.

The Chairman: Ms Sparling, by way of clarification, when you spoke about the power, in the existing act and then reaffirmed in the bill, to allow the federal government to regulate immigration consultants, I must have misunderstood you. I thought you said clause 191.

Ms Sparling: It is clause 91.

The Chairman: I have a question related to that because I believe that professions ought to be regulated. Most professions such as the medical profession, pharmacists, lawyers, accountants and others, all have essentially their own act, either in provincial legislation or Parliament, which sets them up as self-regulating professions with certain terms and conditions.

Has your organization ever thought about doing that? It would go through as a private member's bill. They are always amended as private member's bills as well. Have you people ever thought about going that route as opposed to waiting for the government to exercise the jurisdiction that you say it has?

Ms Sparling: Years ago we spoke with provincial government officials who were not interested in doing that for us because we dealt solely with federal legislation - which takes me aback somewhat with the Ontario Attorney General trying to bring forth a bill to regulate consultants last year.

The Chairman: Do you mean consultants generally, or immigration consultants?

Ms Sparling: I refer to immigration consultants. As far as the federal government goes, when we first started to talk to the Department of immigration, its reaction was very much that it would like to work with us to develop the framework. To develop the job duties and the level of education needed it would use HRDC and one of its consultants to do the cross-country trip to get all the information.

We felt that with the department's comment about wishing to work with us in developing the legal framework and, once that was developed, assisting us to get going while not being directly responsible for us, looked like the best way to go. Little were we to know that this has just been passed from pillar to post.

We formed the College of Immigration Practitioners of Canada, which is an incorporated, non-profit company, to do the negotiations. We have lost out now three times on hiring a consultant from HRDC because the department will not move. We believe that we have tried almost every avenue.

We have not actually approached anyone about a private member's bill, but we are at the point where we are willing to do anything to bring this to fruition. It is one reason that we got party status to the Mangot appeal at the Supreme Court as well.

The Chairman: Take this as a piece of gratuitous advice. You would be far better off to try to do it through a private member's bill for two reasons. By the way, I would be happy to talk to you about a private member's bill.

First, you would control the process and the timing, which gives you a huge advantage. Second, you would be able to develop the specs as you require them. Based on the other professions that have frequently come before this and other Senate committees, they have found having a private member's bill is very useful. Then you become incorporated with your own statute.

[Translation]

Senator Pépin: Mr. Bélanger, you said that you believed the bill contained an obligation to pay for medical treatment for passengers who enter Canada. Do you know of any precedents in another country where this is done or are we the only country to impose such an obligation on shipping companies? Are there precedents elsewhere? Do you believe that this has happened because of the wording of the bill?

Mr. Bélanger: To our knowledge, there are no precedents. Clearly, ships or owners are responsible for medical expenses for the crew and others. We do not know of any precedent for passengers. The Department has told us that this is not the intent, but the wording of the bill says precisely that. What bothers us is that the act says that passengers are entitled to have their medical expenses paid for when they are visiting here, even though the regulations say otherwise. The Department says that this will be taken care of in the regulations. However, even though the regulations may say the opposite, the act would become ultra vires. If this right is stated clearly in the act, then the person who has to pay medical expenses may require reimbursement of medical expenses from the ship owner and may make the claim under the act.

Senator Pépin: Under which section is this specified?

Mr. Bélanger: Yes, section 148(1)(c) of the bill. I believe that it was placed there inadvertently. The wording needs to be changed. We discussed it with the Department. I consulted lawyers, and they support me. The Department's lawyers say that there is no problem. Do we have to wait until we end up in Court and have the regulations declared ultra vires rather than correcting the matter at a time when we still can now that the problem has been identified?

Senator Pépin: Passengers on cruise ships can pay an insurance premium. If passengers have insurance, then the insurance companies can pay for the expenses.

Mr. Bélanger: The Act says that insurance companies can theoretically make a claim against the ship's owner and recover the expenses. The act says that the owner of the ship is liable for these expenses. That is what we find so problematic.

Senator Pépin: Then the same thing could be required of all airline companies. I will attempt to go into the matter in greater depth, because at first, that was not my understanding when I read the section.

[English]

Senator Di Nino: Ms Sparling, your frustration in trying to have either the provincial or the federal authorities regulate your association stems from the fact that you believe that there are people who are practising, in effect, in this profession without qualifications and without the skills and knowledge to do a professional job. Is that the basis of your request?

Ms Sparling: There is a third group of people who enter into this unregulated profession simply to cause great distress to others by charging large fees and by providing services that are not legal.

Senator Di Nino: That leads me to an issue that has been dealt with, I believe, in the other place as well as by some critics over the last number of years: the patronage appointments to the IRB. There have been some suggestions that the system should be changed to create some sort of independent body that is independent of political patronage, which is now the vehicle used to appoint these people to such positions. Do you have any comment to make on that?

Ms Sparling: I have never really given it much thought. I spend so much energy trying to achieve OPIC's agenda that I do not wish to make any comments about a system of appointments that has been in place for so many years. Suffice it to say, I hope when patronage appointments are put forward some thought is given to the position that the person is named to and whether they have the necessary skills.

Senator Di Nino: In your dealings with the representatives at the IRB, have you found it to be a competent, efficient and capable group?

Ms Sparling: Senator, I am not the person to answer that question. My practice deals solely with skilled workers coming from overseas. I do not represent claimants before the IRB.

Senator Di Nino: The September 11 events have driven the discussions on Bill C-11. As one of my colleagues said, it is strange that they are both numbered 11. The bill deals with a much larger issue - one of immigration to Canada - which should not focus solely on the security issues and/or the refugee component of that.

In your opinion, does Bill C-11 address the issues and the needs for you and your organization, particularly in light of your own experiences, to encourage those from other parts of the world to come to Canada under that skilled worker's, business type of definition?

Ms Sparling: It is a difficult question to answer because much of the "how-to" will be encapsulated in regulation form, on which the drafting stage is not yet complete. We will not see them until the bill receives Royal Assent.

However, I do have a comment: right now, and for the past four or five years, the greatest impediment to people coming to Canada has been the three to four year processing times for most applications. It has been the inventory, or backlog, that the department has been experiencing for years that has been a real detriment. People do not want to wait for that amount of time.

The department, because of its lack of resources, both financial and personnel, have gone to a centralized system of processing for business applicants, which has not made any difference in the length of time. I would have to see the regulations, however, what we now must do is administratively shore up the department so that we can deliver the goods in a reasonable period of time, having due consideration for background checks and medical checks.

Senator Di Nino: We have heard over and over since we started these hearings that the problem is really one of resources, that the existing legislation, in effect, would allow the CIC to conduct business and that Bill C-11 may not add a great deal of authority or value. It really is a question of resources. Is this what you are saying?

Ms Sparling: Bill C-11 certainly gives the department many tools, but all the tools in the world cannot deliver the program. You need the resources to deliver what the bill is promising.

Senator Di Nino: Mr. Kurland has been nodding. Would you care to comment, Mr. Kurland?

Mr. Kurland: In light of the comments made to the question, I concur. Every indication based on forensic accounting performed at every overseas mission comes to the same conclusion: we have the rules and we have the tools, but without the resources, you cannot do the job adequately to protect either the integrity of the immigration program or to deliver what Canada needs for its future.

Ms Sparling: He is correct.

Senator LeBreton: That was the line of questioning that I planned to follow.

Bill C-11 provides for a massive overhaul of the Immigration Act. Under the current section 19, all of the provisions are there - minus the resources to deal with the problems of point of entry that now seem to have come to the fore because of the events of September 11.

Ms Sparling, you spoke about people living abroad who deal with visas. Mr. Kurland, these officers overseas are non-Canadians who are locally employed and did number in the low 100s and now number approximately 1,300. Is that correct?

Mr. Kurland: At a minimum; in addition, the monthly malfeasance reports from Immigration Canada show an alarming consistent trend of bad things happening at our overseas missions, directly attributable to these locally engaged people. There have been RCMP investigations and criminal convictions which have involved losses of cash in the millions of dollars, bribery, missing visas and a parade of horrible events.

Senator LeBreton: We have questioned previous witnesses about authenticity of documents. Often, when refugees appear at our borders, they have no documents. Therefore, that would call into question the entire system of the authenticity of documents. If you must backtrack to try to authenticate a genuine refugee based on school or hospital records it would throw that into jeopardy, as well.

Mr. Kurland: It is a program integrity issue.

Senator LeBreton: Mr. Bélanger, in respect of the shippers, I find it rather astounding that you are expected to be responsible for people who are on your ship without your knowledge. When the bill was before the House of Commons, did you make these arguments?

Mr. Bélanger: We have been making these arguments repeatedly. We appeared before the House committee before the bill was introduced two years ago.

The House committee produced a report with many recommendations, basically none of which have appeared in the bill in terms of the suggestions that we are making.

Senator LeBreton: Were you given any reason? It seems that common sense should prevail. If you do not know people are there, how can you be responsible for them?

Ms Anne Legars, Director, Policy and Government Affairs, Shipping Federation of Canada: Actually we have come a long way because the shipping world is not well known amongst the population. Even members of Parliament ask us in committee, "What is the difference between your commercial ships and the ships that are bound for Canada with illegal immigrants?" We had to submit an additional brief to explain what commercial shipping was. Therefore, we really have come a long way.

Senator LeBreton: It is not very encouraging that our elected members of Parliament would not know the difference.

Ms Sparling, thus far in your efforts to deal with the issue of employees abroad, obviously there has been no provision anywhere that would have allowed you to get those locally hired people under the umbrella of your organization.

Ms Sparling: No, they are contract employees of the department overseas.

Senator LeBreton: Therefore, you would have no access and no controls.

Ms Sparling: No.

Mr. Kurland: This is the point. The early warning system, the control, not paid by the taxpayers, was at this appeal level. Lawyers were the early warning system. We knew within 30 days that something was up in an immigration file that was decided wrongly and quickly went to court, which caused an internal investigation at CIC and led to the removal or departure of the locally engaged employee. This bill takes away that warning system.

Senator Robertson: I wish to come back to something you said, Mr. Kurland. You mentioned a private document, or something that was circulated to staff. Repeat that again, please, and what is the end result?

Mr. Kurland: The document is referred to in the internal CIC materials that I have circulated. It means that when you apply as a skilled worker to come to Canada to live as a permanent resident, if you are an accountant, for example, you are required to know certain duties on a list of duties. The human resources people create the list of duties. The manual says that if the applicant has some or all of these duties, he or she is an accountant, and is in. The internal CIC document instructed the interpretation to be not "some or all." The applicant had to be everything on the list. If the immigration department had made that interpretation public, lawyers would not have filed applications to the Federal Court on the basis that the meaning of "some or all" means "some" or "all."

Ms Sparling: Not all.

Mr. Kurland: Not all. The materials before you today are CIC materials from CIC lawyers. Magically, the Federal Court tells CIC, "some or all" means "some" or "all." That accounted for the 300 or 400 extra court cases going into the system. We are talking about 60,000 skilled worker applicants, and the people who went to court to protect their rights numbered in the low 100s. Until the Federal Court made up its mind and determined that "some or all" in fact meant "some" or "all," you had to file in Federal Court to protect your client. That is why suddenly there is a spike from 300 to 800 cases in 60,000 a year - which over five years would be 300,000 cases. It went up 500 cases. For that reason an early warning system for malfeasance is being taken away. That is incredible.

Ms Sparling: If I could interject, senator, one of the other reasons that it spiked was that no longer could you informally protest a decision that clearly contained an error of law. Correspondence simply was not answered. No one would discuss it with you. You had no choice but to go to Federal Court to get your client's case back on track. That right is now being severely restricted.

Senator Robertson: On page 2, you say that it has been determined that at least 50 foreign based terrorist groups have representation in Canada. How long have the authorities known that?

Mr. Kurland: Senator, this is not my statement. This is the statement from the Department of Citizenship and Immigration headquarters, case management, March 23, 1999, originator, Diane Desrosiers. This is an internal CIC document. CIC has known at least since March 23, 1999 of the existence of some 50 foreign based terrorist groups with representation in Canada.

The Chairman: It is also my understanding that the number 50 appears in the CSIS annual report.

Senator LeBreton: Certainly when I was on the committee that Senator Kelly chaired on security and intelligence, I believe that number appeared in the documentation of that committee as well.

Mr. Kurland: Senators, this is why it is so important now to underscore to our friends south that we, in Canada, are not blind. We are aware. I would bet - and you will hear later on from a very good witness who was in the service of Canada for many years, Mr. Collacott - that these people are living in a goldfish bowl, an electronic goldfish bowl at times. We know with whom they talk, when, and the substance of their conversations. That will be picked up within an hour.

Senator Cook: Mr. Kurland, you mentioned the integrity of local visa personnel. Do you have, or is it included in the documentation, any evidence or information to support that?

Mr. Kurland: Indeed, senator. Today, I cannot anticipate all questions, but I will provide that by fax on my return to Vancouver tonight. You will have on your desk tomorrow morning the internal malfeasance reports from the Department of Citizenship and Immigration outlining in detail the number of investigations and what they were for, their conclusions, when charges were laid and the outcomes. It was obtained under the Access to Information Act of Canada.

Senator Cook: Mr. Chairman, perhaps that could be forwarded to the clerk.

The Chairman: I thank the four of you for coming. We appreciate your time.

Ms Sparling, please think about that approach to your problem.

Our next panel is unusual for two reasons: partly because it has five people and partly because the five people have all had distinguished careers as Canadian public servants.

I would ask Mr. Fairweather, Mr. Manion, Mr. Bauer, Mr. Collacott, and Mr. Bissett to come forward.

Honourable senators, for some of us, like me, this is very much a déjà vu element since Mr. Manion was the first minister I met in Ottawa in 1974 when he was Secretary of the Treasury Board. Ultimately he was Clerk of the Privy Council.

Mr. Fairweather is known to all of us, originally as a member of Parliament and as the first chair of the Immigration and Refugee Board. The other three members of the panel have all represented this country abroad in some very difficult places. Mr. Collacott has been ambassador to Lebanon, Syria, and Cambodia and high commissioner to Sri Lanka. Mr. Bauer has been ambassador to Thailand, Burma, Laos and South Korea and was also a member of the IRB for a while. Mr. Bissett has been in Yugoslavia, Trinidad and Tobago, Yugoslavia, Bulgaria and Albania and he worked in Moscow helping the Russians set up an immigration department.

May I say to all of you that the wealth of experience you represent is awesome, frankly. We are absolutely delighted to have you here.

I know some members of the panel want to make an opening statement. We will go through those and then turn to questions for the group as a whole.

Can we begin, Mr. Fairweather, with your opening statement? Thank you very much for coming up from New Brunswick for the day.

Mr. Gordon Fairweather: Honourable senators, I appreciate this opportunity. Probably these wonderful people will have more important things to say than I have, however, I have a couple of points.

First, the chairmanship of the IRB was and remains a high point in my life in Ottawa. I could give a rather eloquent statement of what our country has stood for. I am nervous now that some people abroad in the land are capitalizing on the events of September 11 and from that could come Constitutional, even notwithstanding clauses to revoke one of the important decisions of our Supreme Court , namely Singh.

To remind senators, three people decided the Singh case, two of whom later became chief justices. One was Chief Justice when it was heard, Chief Justice Dixon. It was written by Justice Bertha Wilson. It was agreed to by Justice Lamer. Interestingly enough, three other judges reached the same conclusion, but used the Bill of Rights.

In both cases, the elements of which they were reminding us were the fundamental justice aspect of the most important political event in this country in two or three generations, the Charter of Rights and Freedoms. I find it passing strange that anyone would suggest that this country use the notwithstanding clause. If I say nothing else, the large amount of money that the Crown is paying to bring me here and return me to New Brunswick today on short notice will have been worth it.

I have the Singh decision. I do not keep a library of all the things that happened however, the IRB's very foundation was based on the decision of that marvellous Canadian, Justice Bertha Wilson.

I wish to mention that I have a fairly good person on my side on this, namely, the Prime Minister of Canada, who was my minister when I chaired the Human Rights Commission. Jean Chrétien said that the Government of Canada would not invoke the notwithstanding clause. All your researchers can look that up. It gave those of us who were charter advocates great comfort. I do not suspect for one moment that he could be persuaded to change his mind. If there is anything I could do to keep him on track, I would.

The Singh decision said that fundamental justice was in the Charter and in the Bill of Rights. We have now adopted the American language "due process," which is not known in our law. Fundamental justice is known and that was the principle that those six judges upheld. Fundamental justice means that everyone is entitled to a hearing - and not a paper hearing.

I have a good deal of respect for the former minister, Lloyd Axworthy. He started a process but the court found - and this could not be the first time that ever happened in Ottawa - that the paper hearing held under the old Immigration Act was sufficient. Our court said no, people are entitled to be seen and heard, hence Singh.

The next government proposed the Immigration and Refugee Board. It was a tremendous privilege for me to lead it. It is the largest administrative board in the country. The members - and I am plugging them now - undergo the most extensive training of any board members. I defy anyone to argue otherwise. They have been subject to a good deal of bum raps about what they do.

The Chairman: I will say, Mr. Fairweather, that you are talking to a group of people who absolutely know what a bum rap is.

Mr. Fairweather: I come from that delicate province where such things might not ever be mouthed.

Part of the dilemma that you senators face is that every day there is another horrendous story. If you read the story in the front page of today's Ottawa Citizen, what did these much-maligned members of the IRB do but turn down the claim. Everywhere I went colleagues questioned why there were not deportations. We must go through this hearing and then nothing happens.

The Department of Citizenship and Immigration has staff, especially on the immigration side, that I have found extraordinarily able. They welcome between 200,000 and 250,000 people to this country every year. Statistics would tell you that the IRB deals with perhaps about 12,000 per year, perhaps a little less now.

A wonderful aspect of all of this is that our government enters the refugee camps across the world. There is a designated program for government sponsors. We all have them in our own communities.

We must be careful not to be so caught up in the present agony that fundamental changes are made to the very system that makes us the country we are in the world.

We have had evidence, or watched with some horror, failings in the criminal justice system. We do not for one minute say "notwithstanding the protection contained in the Charter," do we? We try to rally under the Department of Justice and the judicial system and go on from there.

My colleagues at the IRB are embarrassed and humiliated when decisions they take saying "no" are not carried through to deportations.On the other hand, deportations are very difficult, particularly at times, as I understand it, of severe budgetary restraint and quite substantial reduction in staff.

There are ministers and ambassadors to my right and left who will be bellowing and thundering in a minute.

I do not see how immigration can function if CSIS and the RCMP withhold information. I hope this is something honourable senators will be able to say: it is quite unacceptable that CSIS and the RCMP engage in turf wars, while the people who are sponsoring or approving immigration and advising our government to sponsor refugees are not spoken to by the very security people that we employ for that purpose.

I have seen, as I am sure senators have as well, people confuse national security with their own little bailiwicks. National security can become clandestine and secret. I was once told that our judiciary could not be given secrets because these individuals were not cleared up to the right "altitude."

How can an immigration officer in Hong Kong function if the very people who are charged with this responsibility, too often, do not speak?

You have been very patient. I am not running away as there will be perhaps some questions and dumping. Dump away. I am able to be dumped on now that I am retired.

Mr. Martin Collacott: Honourable senators, the events of September 11 have major implications for both the refugee protection and the immigration provisions of Bill C-11. In my view, both of these sections are profoundly inadequate in terms of serving the interests of Canada. The events of September 11 have brought out these inadequacies in different ways.

First is the question of international terrorists entering and remaining in our territory. That is of particular interest to me because one of my jobs at headquarters was Director General for Security Service. I was responsible for coordination of counterterrorism policy.

The U.S. clearly has huge problems of its own in dealing with this situation, as the hijackers all got into the United States and had been there some time. However, Canada also has major problems, as you have probably already been told. The director of CSIS spoke to a special committee of the Senate in June, 1998. He said that his agency was investigating 50 organizational and 350 individual terrorist targets. Canada was probably second only to the United States in terms of the number of international terrorist groups in its territory. We cannot become, through inaction or otherwise, what might be called an unofficial state sponsor of terrorism, which is pretty strong wording. Our policies concerning refugees and immigrants make us particularly vulnerable to terrorist influence and activities. The Ahmed Ressam case and other trials in the U.S. made it clear not only that there was an extensive network of Islamic terrorists in Canada, but that most, if not all, of them came in as refugee claimants.

I might add that our knowledge of this problem goes back a long way. In the 1980s, when I was director general, I proposed that we try to have legislation against funding of terrorism. Joe Clark signed my letter and sent it to his counterpart. Barbara McDougall signed the follow-up letter. There was absolutely no interest whatsoever in this issue.

The new legislation does contain some limited improvements. For example, security checks will be done much earlier in the process for refugee claimants. However, it will fall far short of dealing effectively with the shortcomings.

The Auditor General of Canada, in December 1997, made a scathing critique of the refugee determination system. He cautioned against making patchwork changes. He said it needs a thorough review. However, few of the deficiencies he noted have been dealt with effectively in the new legislation. This will not meet either our security concerns or those of the United States.

In my written brief, which I will not have time to go through in detail, I make some specific suggestions. The essential element, though, is that no refugee claimant should be released into Canadian society until we are reasonably certain that the individual does not pose a security threat and is a genuine refugee according to the UN convention.

This would involve making many people apply in safe third countries through which they came where they could have claimed asylum or made their claim to us. We took over 10,000 people last year from overseas. There will be some people we will have to detain. This costs money, but in the long term the costs will be much less than what it is costing us now.

Some people claim that we are already tougher than the United States. That is simply not so. I can go into detail on what some of the points are.

We have shown that we are overwhelmingly more generous than the Americans. We take 60 per cent of the claimants that we process. The U.S. takes only around 20 per cent. On a per capita basis we accept several times more refugees than are accepted by America. The long lineups of people at the border who cannot get refugee status in the United States but can in Canada indicates which country is more generous.

The most comprehensive analysis of these problems was contained in a book on refugee and immigration law, published last year by John Munro and Charles Campbell.

We will get some strong objections from refugee lawyers and advocates. I notice quite a number of them are making representations to you. One of their arguments will be that the necessary laws for dealing with this are already on the books or will be on the books in the new legislation. That is not so. One of the strongest arguments - and in a way it was reflected in Mr. Fairweather's statement - is that the measures that I would propose would deprive people who come to Canada of fundamental justice by denying a judicial review of decisions not in their favour.

In a perfect world, and in a lawyer's paradise, all unfavourable decisions could be appealed before a court. Ours, however, is not a perfect world. We have hundreds of thousands of people who want to come to Canada every year. It must be stressed that we are not the only country that takes immigrants or refugee claimants, most of whom travel through other countries where they could have claimed refugee status. We must simply accept the fact that the vast majority of decisions, including final decisions, must be made at the administrative level and without judicial review. We simply do not have the resources to put in all the legal bells and whistles and judicial reviews that lawyers would like.

Again, there are other countries that take immigrants and other countries that take refugees. The idea that there should be any number of judicial reviews is simply not realistic.

Other arguments are used to shut down the debate, such as that those who want to make fundamental changes are racist because most of the claimants are visible minorities, or that we lack compassion or are not prepared to meet our international obligations. All of these have been used to shut down the debate, sometimes on immigration as well as refugee issues.

With respect to immigration, it is doing even more damage in the long term to Canada than our refugee determination system. In my brief, I give details on why the government's claims about the economic and demographic benefits of the current immigration program and the proposed legislation are without foundation. They are in conflict with the results of its own research. One of the areas I believe should be of particularly great concern to us is the impact that current policies may have on seriously undermining the spirit of tolerance and widespread acceptance and, indeed, celebration that most Canadians have of diversity.

We have nurtured and developed this spirit over the last few decades and we have set an example to the world in which ethnic conflict has become the norm rather than the exception over the years. I am proud to be part of that example. My wife is an immigrant from Asia, and our two sons reflect the new Canada.

However, it is becoming increasingly clear that we are placing these achievements in jeopardy because of ill-considered immigration policies based very much on the part of lobbying by special interest groups and attempts by political parties to get votes in the next election.

Under our present policies little or no account is taken of the extent to which Canadian society is able to absorb the number of new immigrants who come to Canada nor how well equipped they are to adapt to Canadian society. The government has shown little inclination to determine whether serious strains and tensions are developing, although the need for it to do so is clearly outlined in some of its own papers, which are listed in my brief.

I have been expressing concern for some years about the potential of current policies to create a negative response to immigrants, particularly visible minority immigrants. The despicable acts against members of our Muslim, Sikh and Hindu communities after September 11 is only the first widespread evidence of a reaction. The United Kingdom, where visible minority communities constitute only half the proportion they do in Canada, has in recent months had a number of serious racial confrontations. I wish to make myself clear on this point. Most of Canada's immigrants will continue to come from developing countries and will be members of visible minority groups. However, we must look much more carefully at how many people we need, how they can be effectively absorbed and who should be selected. We have still not had a serious and open debate on our immigration policies. Now the need is greater than ever.

Current polices are to the detriment of the immigrants themselves. I used to describe our programs as "leading to a national disaster in slow motion." Now I am inclined to remove the last three words.

Mr. James Bissett: It is true that I served as an ambassador in the Balkans, but you did not mention the toughest job I had. For five years I was the head of the immigration service and struggled to get the current refugee legislation through Parliament and the Senate. It was the Senate that held it up for a very long time. Some of you might remember that Senator Hébert went on a hunger strike to prevent that bill from being passed. At any rate, I went off to the Balkans for a rest after those five years.

I will focus primarily on what I think is the major weakness of Bill C-11, which is that it does not address where Canada is most vulnerable: the asylum system we have in effect in Canada. Thousands of people arrive every year claiming to be refugees. Most of them are not refugees. They are economic migrants, of which 60 per cent to 70 per cent are smuggled by international traffickers. They pay big money to get here; Chinese applicants pay up to $50,000 U.S. apiece to get here.

Many people confuse asylum seekers with refugees. It should be clear in everyone's mind that they are not refugees: they are people claiming to be refugees. We received 37,000 last year. These people simply walk into the country, for the most part with false documents since you cannot get on an aircraft without a document. They get documents, they arrive, they make refugee claims and then they are home free. We do not know anything about them. Often we do not know where they have come from or even the flight on which they arrived. None of them are screened for security. None of them are screened for health or criminality. They are on the loose. That is a very serious threat in the light of what has happened on September 11.

The proposed bill does not do anything to address that issue, and, in my view, that is its major weakness. It will be just as easy as ever for these people to arrive, probably much easier. There are certain clauses of the bill that will make it much easier for people to come and more difficult to get them out of the country. Mr. Fairweather mentioned that people who fail a refugee hearing, for the most part, are not removed. Part of the reason for that is it is difficult to remove anyone from Canada because of the number of levels of review, the courts and the lawyers who represent them. That makes it almost impossible to get rid of people we do not want. That is the reality.

In 1999, 58 per cent of the cases dealt with by the trial division of the Federal Court were refugee cases. That must tell us something. On the front page of the Ottawa Citizen this morning is a face that is familiar to me, Mahmoud Mohammad, a terrorist who threw a hand grenade on an El Al aircraft in Athens airport and then machine-gunned some of the passengers. He was put in jail in Greece. The PLO negotiated his release. He went to Spain, assumed a new identity and came to Canada in 1987. We found out he was here and instituted deportation hearings against him, but he is still here. The matter is still in the courts.

Bill C-11 does nothing to address this. Indeed, it adds more levels of review. It adds another appeal review at the IRB and it adds another pre-risk assessment review. After everything has been gone through, Supreme Court and all, the lawyer can ask for a pre-risk assessment review, which stops everything and we are back in the business again. In my view, that is unsatisfactory.

Canada is not the only country that has problems with asylum seekers. It is an international problem. All of the European countries, the United States and Australia have enacted measures to try to control and better manage this. We have done none of these things. Unlike Europe, the United States and Australia, we have stood by and allowed all of this to happen, and we are not doing anything about it with this current bill.

I had a part to play in the current bill, as I mentioned to you. We designed a refugee system that Mr. Fairweather has described as one of the most generous in the world. However, we did that because we had in the bill a safe third country concept. The rationale is if people are coming to this country from countries where they could already get protection, they are obviously not coming here for protection. They are coming here for other reasons: to work, for education for their children and because Canada is a great country to live in. They are not coming here for protection. The asylum system is set up to protect people from persecution. We instituted in the bill the concept of a safe third country. If people are coming to Canada from the United States or from Europe, we would not allow them to be refugee claimants. They would have to be sent home. They already had protection in the United States and Europe. Those countries look after refugees better, or as well as we do. Then, in the knowledge that the board would not be overwhelmed by sheer numbers, we were able to design a very generous system, and we did that. Three days before the bill was enacted, the minister announced that the bill would pass, but that the safe third country would not be enacted. Those of us who drafted the bill knew it was doomed, and since that time, over 400,000, close to half a million asylum seekers, have come into the country.

Many Canadians may feel that is all right. However, I think September 11 has changed that. We are in a different world, and we must get much tougher. This bill does nothing to make it tougher.

I could give a long list of things that Europeans do with asylum seekers. I will just give you an idea of what can be done. All of the European countries have the safe third country concept. If people come to Europe from a country that is considered safe - meaning it is a signatory to the UN convention and has a good human rights record - they are not eligible to enter the refugee system and are subject to removal by accelerated processes. Europe also has the safe country of origin criteria. Germany has a list of countries that are considered safe. All European Union countries are safe, North America, Bulgaria and Romania are safe. The list of countries is long, and people coming to Germany from those countries, because they are democratic, have good human rights records and follow the rule of law, are not eligible to get into the system and clog it up. They are sent home.

In addition to that, they have a concept of frivolous claims. If someone claims to be a refugee and it is discovered that he has made contradictory statements, his story is inconsistent and his claim is without substance, that person is subject to easy and early removal and does not get into the system.

There are also abusive claims. People who come without documents or with fraudulent documents and do not co-operate - that is, they do not tell the authorities where they got these documents and why they had to use them - are considered to have manifestly unfounded claims and they are subject to fast removal. These countries have signed readmission agreements with other countries that state "You must take back our failed asylum seekers." In Germany's case, if countries do not take these people back, Germany cuts off developmental aid. Germany has become very tough.

Next is removal while under appeal. In most European countries - certainly France, Sweden, Switzerland, Germany - if an appeal is made, the appeal is accepted but the individual is removed pending the appeal. These countries do not allow such individuals into the country. If the appeal is successful, they are then allowed back into the country.

Social assistance is the next area of concern. Many countries do not allow asylum seekers to work. In the United States there is no social assistance for asylum seekers and they are not allowed to work for six months. When hat law was introduced the percentage of asylum seekers in the United States dropped by 40 per cent. Why? It is because most people are seeking protection in the United States, they do not want to line up at the immigration office. There is a strong correlation between the top countries for immigration and the top countries for asylum seekers, for example India, Pakistan, Sri Lanka, Hungary and Iran. That is to say, they are not only the top countries for immigration but also the top countries of asylum seekers.

The bill is totally inadequate and it should be sent back. All the measures that I have described to you are fully approved by the United Nations High Commissioner for Refugees. Why does this bill not address that issue? Why are we not doing these things? We are idly standing by and letting 45,000 people seek asylum here. It will be much more than 45,000 in a year or two with the Europeans tightening up; the traffickers and smugglers know where the soft countries are. We have a reputation for being soft on criminals, on security issues and on asylum seekers.

The bill does nothing to address the reality that we are in a post-September 11 world. I am not suggesting that we do anything to deny fundamental justice. I am just saying, "Look, we are generous, but we cannot be responsible." It is little wonder that our southern neighbours are worried about what we are doing here because we are not facing up to the reality that many of these people could turn out to be terrorists. I am not suggesting that the 400,000 applicants are, but it does not take more than five or six or 25, as we found out on September 11. We must be much tougher.

The bill goes beyond that. It has broadened the UN definition of "refugee." All of the European countries and the U.S. are trying to narrow the definition, but we have broadened it. We will now give protection to anyone who comes here and says that he or she wants protection. That is now in the legislation. That is a mistake.

We are doing many other things as well. We are talking about giving a fair hearing to anyone who comes here claiming persecution. This will be enshrined in legislation, but it automatically prevents us from doing anything to screen out, at the front end, the people who come into Canada who are obviously not refugees. It gives everyone who claims persecution a fair hearing. "A fair hearing" means "before the courts." Once people are here it is extremely difficult to get them out. We are removing about 7,000 people a year from Canada and maybe 4,000 to 5,000 of those are failed asylum seekers. Where have the others gone? We do not know where they are and we do not track them down. Resources are not enough to do that.

You may wonder why there has been talk in the United States of harmonizing refugee systems and the border. It is little wonder; we are a soft touch and everyone knows it.

Mr. William Bauer: As Mr. Bissett mentioned, in addition to nearly 40 years in the foreign service and four years in the IRB, I spent the last six years doing research on the refugee determination system and world migration to the point where my wife issued an ultimatum this summer that either the book be finished by the end of the year or I will be a separated man. This may be my swan song - either as a married man or as a researcher.

I appreciate very much the opportunity to talk to the chamber of sober second thought through this committee because the bill needs sober second thought and third thought and fourth thought. It is a bad bill.

I do not represent anyone. I am just an individual. I do not have any organization. No one is paying me. I do not earn my money from immigration or from refugee determination. I am long retired and I am just living on my little superannuation.

Someone once said that "The country's ports of entry have been swollen with thousands of refugee claimants who hope they can avoid normal immigration procedures. These hopeful immigrants know a claim may buy them time and a chance to stay. However, their abuse of the system can result in dire consequences for themselves and for others. Canada has been billed as an easy mark. I am afraid the refugee issue may burst beyond the capacity of our existing system and become a major source of international instability. It has already become a source of friction for host countries and sometimes leads to conflicts across borders. The problem also draws massive amounts of money away from foreign development efforts."

It sounds like that could have been said yesterday, but it was said in 1983 by Lloyd Axworthy, then Minister of Citizenship and Immigration.At that time he was worried because in that year 3,500 refugee claimants turned up in Canada and that was overwhelming our system. There was a backlog of 1,400. Last year we had 34,253 claimants, of which 24,000 were processed - 4,685 disappeared completely. We do not know where they are. Eighteen years ago 78 per cent were denied a positive decision. Last year the figure was 42 per cent.

I emphasize that Lloyd Axworthy - one of the kindest, most liberal ministers we have ever had, whether in citizenship and immigration or foreign affairs - spoke in 1983 when we were getting about 600 or 800 a month. We are now getting the equivalent of 600 a week, every week. It goes on and it will increase.

Having said that, I am afraid that the bill - which will be set in concrete for 20 years if it is passed now without amendments - will give Canadians the feeling that something is being done to solve the problem. That is dangerous because there is a significant amount of resistance in the Canadian public - generous, welcoming and kind-hearted and which has never failed, since 1956, to embrace refugees who were believed to be truly in need. There are tens of thousands - hundreds of thousands if my reading is correct - of people who think the system is being abused. I am afraid those people may throw the baby out with the bath water and become hostile to refugees who genuinely need our protection because of the cheaters who ride the system in order to bypass immigration.

Immigration means that we ask, or allow people to come to Canada, after checking their security, health and ability to contribute to Canada, or their relationships with a Canadian or a landed immigrant.

A refugee claimant is someone who chooses, himself or herself, pays someone $30,000 U.S. or $60,000 U.S., to come to Canada and, in the majority of cases, stays here. We do not choose them; they, themselves, choose. No sovereign state can allow that to continue year after year, decade after decade, and maintain its sovereignty, its security or, indeed, its way of life.

I will not talk about September 11. There was a terrorist in New York who had received refugee status in Canada. He was caught only a few hours before he would have taken pipe bombs filled with nails into a subway station in New York. He said at his own trial, "I was going to kill myself and take as many Jews as I could with me." He had been given refugee status in Canada. He tried four times to get into the United States. The fourth time he was caught but an American judge let him loose. That could have been a very bad situation.

The Air India crash was the biggest catastrophe involving aircraft in history at that time. All those who died in that crash were Canadian. The perpetrators of that catastrophe were, again, people with refugee status who were carrying on their little war on our territory as Canadian citizens.

Other things happen when the wrong people are allowed to come in without our having knowledge of who they are. The Big Circle Boys came in from China because we did not send anyone back to China after Tiananmen Square. I have spoken to police and immigration officials in various areas about this.

The Tamil Tigers extort money from Tamils who came here from Sri Lanka because they were being victimized by Tamil Tigers. Here in Canada, on the streets of Toronto, they are still being victimized. If a newspaper prints an article criticizing the gangs or the Tamil Tigers, the newspaper office is torched.

If we do not keep out the people who victimize their own ethnic groups, we are not giving the people we allow in the protection we promised them. They are suffering the same persecution they suffered in their home countries.

This bill has many flaws. I have read the blues from your hearings on Monday. You were reassured about many things. As an old bureaucrat and a bit of a sceptic, I must explain that there is a big difference between the ideal result and what happens in real life, especially when resources are very limited.

You were told that when a person arrives in Canada, there will be a security check up front. Sixty per cent of the people arriving on our doorstep claiming refugee status have either no documents or false documents. We do not know who they are. How can you do a security check on someone who is probably using a false name? You cannot.

Reverting for a moment to New York, members of the terrorist cells all over the world are ordinary young people with no criminal records and no fingerprints on the records of Interpol. There is no way of checking them, even if we knew who they were when they arrived at Lester B. Pearson Airport, the Niagara frontier, or when they sneaked across the Akwasasne Reserve. This is false security. We cannot check them that way.

A long time ago, most Chinese came to Canada through Europe. The Americans tightened up their rules and suddenly the proportion of undocumented people arriving here from China rose tremendously. They are instructed to flush their travel documents down the toilet or turn them over to whoever was escorting them, or to hide in a bathroom until all the planes have left so that no one could determine what flight they arrived on. It is very difficult to turn people back if they have no identity and you do not even know where they came from. A receiving country will not accept people unless they can provide some form of identity.

This is an extremely difficult issue. I am not trying to be alarmist. However, the bill, as currently drafted, does nothing but give a false sense of assurance to everyone who reads it. The minister has said that we are closing the back door to enable us to open the front door wider. I would argue that we are opening the back door wider.

I know, inside out, how the IRB operates. I left it voluntarily because I could no longer continue to work there. When I went home at night I was frustrated - by some of the people with whom I had to serve. Some did not know where the country of origin of some of the claimants was. Some people were so lazy that they never made a negative decision. They took only positive decisions because then they never had to write a reason that would have to stand up in Federal Court when the case was appealed. Positive decisions are only appealed by the minister who knows that a person is a terrorist or something else. However, that happens very rarely.

Two-thirds of the people who work in the IRB have not been trained. Mr. Fairweather said that the IRB has a wonderful training system. I went through it. Yes, people have some basic training, background and intelligence, but you must know the law. There is ten years of jurisprudence on this. You must know the world situation. You must know the intricacies of country politics.

In my opinion, had you sent half of the people with whom I served on the IRB to university for five years, they probably could not have acquired the knowledge necessary. They are paid $90,000 a year and in many cases are appointed because they are failed politicians, relatives of failed politicians, or something else. I am not saying that politicians are incompetent or cannot have merit. I am simply saying that the merit principle is not applied to the board.

We should have legislation that creates a permanent, full-time, civil service-type operation with a career structure rather than two-year appointments that are totally dependent on what you are perceived to be doing. Lawyers complain that you are making too many negative decisions, and the next thing you know your appointment is not renewed. I have known people to whom that happened. If the government changes, half the board disappears and newcomers arrive. It must be a continuum.

The bill does nothing in this regard. In fact, it makes the situation worse because it allows one-member panels, which will be disastrous. We will get bad decisions far more frequently than we do now.

I am sorry to have taken up so much time. However, as you can see, this issue is close to my heart and close to my experience. As a Canadian, I feel terrible that there are things that we can correct, yet, due to pressures and lack of political will, we are simply recycling the same loopholes and making them even bigger.

The Chairman: Mr. Manion, you said that you did not want to make an opening statement. However, you are a past clerk of the Privy Council and deputy minister of what was then called the Department of Employment and Immigration.

Mr. Jack Manion: Mr. Chairman, my interest in immigration dates back 50 years. It lead me to join the immigration service in 1953. I spent the next 26 years of my 37-year career in that department, the last three as deputy minister. I was directly involved in virtually every major immigration policy issue in those 26 years, and indirectly involved over the next 11 years by virtue of my roles in the Treasury Board and the Privacy Commissioner's Office (PCO).

With that background, I must state quite carefully that I find Canada's current immigration situation a shocking and scandalous mess, unique in the history of that program. Our inability to control our borders is gravely eroding our sovereignty. All of the remarks I will make illustrate views that I held before September 11. On that day and since, my views have only strengthened.

The bill before you will help somewhat to tighten up procedures, assuming that it withstands Charter challenges, which I doubt that it will. However, it does not address the source of the problems, which is the 1985 Supreme Court judgment in the Singh case that extended Charter rights to anyone seeking entry to Canada.

I was concerned about the potential implications of the Charter on immigration when it was being drafted. I was assured by the then Deputy Minister of Justice that the Charter did not extend to those without legal residency rights in Canada. Then came the Singh case. With apologies to my friend Mr. Fairweather, that judgment was a disaster.

In 1987, I was asked, as Associate Clerk of the Privy Council, to coordinate the preparation of emergency refugee legislation. When the resulting bill came before ministers, I was asked if it solved the problem. I said it was the best we and the lawyers could do, but in my judgment it would not survive Charter challenges and that the only effective solution was use of the notwithstanding clause or an amendment to the Constitution. I am not saying that I believe foreigners should be denied all protections of the Charter, but I do believe that Canada, as a sovereign country, must be in a position to make summary decisions in cases of those who have no legal connection to this country, as virtually every other country in the world does.

Since that time, I have urged every Minister of Immigration and the current Prime Minister to deal with this issue. In 1994, I wrote the Honourable Sergio Marchi, setting out the facts and issues as I saw them. In particular, I pointed out, first, that direct costs of immigration were two to four times greater than the $950 million he had publicly announced, and second, that the situation would become progressively worse because Canada no longer had assurance that it could legally control its borders or implement any immigration policy. Immigrants were increasingly self-selected, and Canada was becoming a haven for the world's opportunists. Mr. Marchi did not reply.

In 1999, at the time of the Chinese boat arrivals, I wrote the Honourable Minister Caplan along the same lines, and again the minister did not reply. Two months later, I wrote the Prime Minister complaining that his minister was ignoring the problem and possible solutions.

I would like to take the liberty of citing portions from that letter which summarize my views perfectly: "My principal concern about the present immigration situation is that no one seems to realize that there is a critical issue of sovereignty here. To those who plead for an open-door, compassionate response to this latest wave of boat people, I say that certainly we should take as many of the world's genuine refugees as we can, but Canadians, not criminal gangs and unscrupulous immigration consultants and lawyers, should decide how many that should be. That is not only our sovereign right but our responsibility to all Canadians. Secondly, we also have a responsibility and a right to ensure that those we do admit are, as a minimum, not dangers to Canadian health or security. Finally, we cannot continue to spend the billions of dollars we now spend on this uncontrolled problem and deny our immigration service the resources it needs for, first, measures to bring to Canada genuine refugees and those immigrants able and willing to make a positive contribution to this country, and second, to provide effective enforcement services to identify and deal with those who have no legal right to be in Canada or who are threats to our security and well-being."

I also told the Prime Minister: "I am also aware that my implicit criticism of the Charter and my suggestion that it be bypassed or amended to deal with this problem will not find favour with those, like yourself, who are justifiably proud of their role in its creation. However, I am aware that the Charter was never intended to destroy our sovereignty in the matter of immigration, and surely if there is anything Canadians are noted for it, is our pragmatism and adaptability to changing circumstances."

I did not get a reply to that letter.

Senator Beaudoin: If I could summarize the communications, I would say that we have a problem of definitions. The bill does not contain many definitions. This is an area in which we need definitions. With good definitions, we could identify what should be adopted and what should not be adopted.

I should like to return to the notwithstanding clause. I personally am in favour of the Charter of Rights. I think we have a good Charter of Rights. I do not think the use of the notwithstanding clause would solve our present problem. That is not where the problem lies, in my opinion. The courts are there to interpret the Charter of Rights. That is the Constitution of Canada. They have a great deal of experience with that now, having had 400 cases on the subject of the Charter alone.

My question is addressed to Mr. Fairweather and all others.

I do not see the necessity of having recourse to such a remedy. Right from the beginning, I did not think we needed section 33. It may be that in a case of great emergency, it could be used, but we are not exactly in that position now. Mr. Fairweather, what do you think about the possible use of the notwithstanding clause?

Mr. Fairweather: I thought I made myself clear. I have great affection and respect for those who are here. However, the notwithstanding clause was put there, as I understand it, as a way of ensuring support for that monumental constitutional change with the provinces of Alberta and Manitoba.

The chairman said that honourable senators know about a bum rap. I will try another. It was a sop, although a rather elegant sop. The Government of Canada has made it clear that it has no intention of using the notwithstanding clause. A couple of provinces have, rather sadly, in my opinion.

I agree with you, Senator Beaudoin. The problem here is the RCMP and CSIS and Immigration and the failure to deport. Numbers are being cast around here as if hundreds of these people were freeloaders. I would like some substantiation of those numbers.

The failure to deport after a decision has embarrassed the IRB greatly. There is not enough personnel in the immigration department to effectively remove those people who have abused the system. Most immigrants and refugee claimants are here legitimately. Let us not get carried away here.

Senator Beaudoin: In any case, there is no notwithstanding clause in the bill.

Mr. Fairweather: No.

Senator Beaudoin: However, since it was proposed by an expert, I want to ask about it. In my opinion, that is not the problem.

Mr. Bauer: Senator, I personally do not share the view about the notwithstanding clause for two reasons. First, it has been used, unfortunately, in special circumstances. We do not need that damage or political controversy now.

The second point is that it would not do any good. The United Kingdom does not have a Charter of Rights and Freedoms. It is basically based on the common law and now on the European Declaration of Human Rights. All European countries are bound by their human rights law. They can take action within that, and it is just as strong as our Charter of Rights and Freedoms.

However, the U.K., even before this came along, could not do anything about it because the courts said people are entitled to fundamental justice and all of the same things as are in the Charter of Rights and Freedoms. Even if you did use the notwithstanding clause, common law and precedence would accomplish the same thing in justice. I want to ensure that you do not think I was advocating this. I do not think it would do any good because we are long past the time when we can remove rights from anyone who appears before a Canadian court.

Senator Beaudoin: On the issue of definitions, it is a difficult and very important domain. Many of you said that we are somewhat generous. Perhaps this is the time to more clearly define the word "immigration" and some of the other words that we are using in the bill so that we know exactly where we are going. Do you agree with that, Mr. Bauer?

You said that the bill would need many amendments. However, if we introduce a few definitions, perhaps it would help tremendously.

Mr. Bauer: I am sorry, senator, I do not think it would. The definitions are all there. It is political will that is lacking as well as the clauses that would make it possible for officials to carry out their duties effectively.

Also lacking are the resources. Immigration agents have had their numbers reduced from 7,000 to 4,000 in the last few years. They cannot do the job. Imagine a jumbo jet arriving at midnight, and the person working that flight has been there for the whole shift. How can he or she interview anyone and take notes that can be compared for credibility at a full hearing? It does not work.

I have talked to dozens of police officers, and their coordination is not good. The RCMP does not co-operate with the Toronto or the Montreal police. The issue is outside the act and inside the act. However, the problem is not definition, it is will. That is my opinion, anyway.

Senator Beaudoin: We need more cooperation than definition.

Mr. Bauer: That is a good slogan.

The Chairman: It is better than "the land is strong."

Mr. Bissett: I just wish to say that I do not agree with Mr. Bauer and I do agree with Mr. Manion. There is no question that the Charter has inhibited the implementation of any stronger measures against asylum seekers. I mentioned the measures that Europeans are using. If we put those measures into effect in Canada they would probably run up against the Charter and would be declared null and void.

Let me give you an example. In 1992, Germany received 438,000 asylum seekers. It became an alarming number. It was a target for asylum seekers from all over the world because it had a very generous constitution. Following the Nazi regime, the new German constitution was one of the most liberal in the world. It matched our Charter of Rights and Freedoms. However, in the face of 438,000 asylum seekers in 1992, Germany quickly, in 1993, changed its constitution and put into effect all of those measures that I outlined today. Last year, Germany received just over 90,000 asylum seekers. It had to change its constitution.

We may put up with 45,000 this year and maybe 80,000 next year, but when it reaches 100,000 or 200,000, I am afraid we will have to do something. Whatever we do, without the notwithstanding clause, as much as we might hate it, that is inevitable. It is a matter of time.

Senator Beaudoin: Thus, we should address the asylum system.

Mr. Bissett: Absolutely.

Mr. Lorne Waldman: Mr. Chairman, I told people around the Hill that I was summoned by the Senate and several of them fainted. If I do not go home, it will be quite serious.

Senator Wilson: I applaud Mr. Fairweather's citing of the Singh case because I think it was a positive landmark. I sat on the refugee board for six years and I know about the training that went on there. I back you on that, too.

You mentioned that CSIS and the RCMP withhold information and they should not. Can you address that? How would the accountability change the procedures in decision making?

Mr. Waldman: I do not see why information of both these agencies of government cannot be used to warn or discuss with immigration officers who are making major decisions about people coming here. What do these people do, if they are not communicating?

Senator Wilson: There is no systematic way to do that, right now.

Mr. Waldman: I am told that the turf wars are quite active. Mr. Manion tells me that is not so. That is fine. He will tell you it is not so.

Mr. Manion: Mr. Chairman, I really did not say that to Mr. Fairweather.

The Chairman: Thank you for coming.

Mr. Waldman: I enjoyed this.

Mr. Manion: Undoubtedly there are turf wars and failures in coordination, but the police and security people do inform immigration that there is a problem. They may not inform immigration of the details of the information on which they base the judgment that there is a problem. Sometimes that information comes from intelligence sources or from informants and disclosure would imperil those informants if that information were given out.

However, there is a notification - at least there was in my day - passed to security sources to indicate a security problem, or a criminal problem, as is the case. As deputy minister, I always had the right, in the final analysis, to approach the RCMP and request to see what it had, and that was always given to me.

Mr. Collacott: I will pick up on what Mr. Manion said in his first presentation and on what Mr. Bissett said, that the Charter has had a profound impact on the refugee determination system. The Auditor General mentioned that in his report, which I referred to earlier. Needless to say, he did not recommend using the notwithstanding clause - that would not have been appropriate.

In Bill C-11 there is a clause that states that it will ensure that any person seeking to enter Canada is subject to standards, policies and procedures consistent with the Charter of Rights and Freedoms. That, in effect, ensures that it can be invoked not only by people who arrived on our shores illegally, but by anyone in the world - anyone who wants to come to Canada. At least it could be interpreted that way. This, again, is an even greater lawyers' paradise because there can be legal challenges all over the world.

One of the problems we have now is that our immigration officers are so overloaded with representations from lawyers and consultants that they can barely do their jobs. Mr. Kurland from LEXBASE, from whom you heard earlier, had Access to Information reports from our missions in Moscow and Kiev such that they are so overloaded with representations that they really cannot keep track of all of potential criminals. The pressure is to keep issuing visas to bring reach the per cent per year, not to check out people thoroughly.

Senator Di Nino: As my colleague Senator Robertson asked a couple of minutes ago, where does one start? We have heard profound comments. I had in mind to cite some of them, but because time is restricted, I will let that pass.

We have been urged by the minister and by the government side of the Senate, to pass the bill quickly because the minister requires it to be able to do the job, particularly after September 11. Ms Caplan has publicly made these comments everywhere. We have also heard, from officials of the ministry, that the bill will not see the light of day until, at the earliest, spring. The bar association told us that it has been told that the government is shooting for a July 1, 2002 target.

My question is to all of you and I wish all of you would make a comment. Does Bill C-11 fix anything that the minister requires and that the Government of Canada requires to do the job today?

Mr. Bissett: I believe the contrary is true. There are some housekeeping items in the bill that, on the surface, appear to be tightening up on terrorism and so on. The fines for traffickers, for example, have been increased substantially. That looks good, but the fact is we never catch traffickers. The traffickers who are running the Chinese boats into Vancouver are living in China. They do not come here. They hire Korean seamen to run the ships. That looks good, but it does not mean anything. I am happy to increase the fines to $1 million, but you will not get any of the traffickers.

There are other parts of the bill that are of that nature. The fundamental problem is the asylum problem, where there are up to 40,000 people walking in and we do not know who they are. There is nothing in the bill that addresses that issue. Indeed, the bill makes it easier for people to come. Unlike other countries in the world that are concerned about the UN definition being too broad, this bill broadens the UN definition. It says anyone can come here, claim persecution and get a fair hearing. A fair hearing means that person will be in the country from two to three years. You can marry, as Tom Kent said in his article.

The game is not to seek protection but to gain access. Once you are in the country, you are in. The traffickers know this and they guarantee people that. They say, "Don't worry, we'll get you to Canada on false documents and, once you are in, we guarantee you two years and then you are on your own."

That is the problem. The bill does not address that. The bill makes it easier. The bill broadens the definition of a refugee. Why? All other countries in the world are concerned about this. The UN definition is quite broad. We are now broadening it to include everyone who needs protection. We are incorporating the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Those who come now - and there are two cases before the Supreme Court - who are terrorists or murderers can claim that if we send them back they might be subject to torture. We will not be able to send those people back. I am concerned about this.

Senator Di Nino: The minister does not need Bill C-11 to do the job that she claims. Is that right?

Mr. Bissett: No, she does not.

Senator Di Nino: I am not trying to lead you, but that is the question I would like answered.

Mr. Bissett: This bill is deeply flawed. It will make it easier for people to come and harder to get rid of them. The current legislation is not perfect, but it does almost everything the bill does. If the government had the courage to bring in the safe third country rule, we would not have the IRB in Toronto approving 75 per cent of Mexican cases. Can you imagine that? Seventy-five per cent of Mexicans who come to Canada and claim refugee status are approved by the IRB in Toronto.

Mr. Collacott: I believe it would be extremely unwise to pass the bill in a hurry, especially after September 11. The Americans would think that we have taken leave of our senses if we passed it in its current form. I notice the Minister of Justice said she needs a thorough look at her bill to stop terrorist fundraising. I do not know why the same thing is not happening with Bill C-11, since the whole field is changing because of what happened on September 11.

There are far more fundamental problems that ought to be reviewed. I suppose I am the only one who went into immigration, apart from refugee protection. I am very disturbed by the attacks on members of our minority communities. My wife is a member of a minority community. I think this is the tip of the iceberg in terms of what we should be examining much more thoroughly to determine what is happening there.

It would be a great mistake not to have a fundamental review of different parts of this bill. It would be a disaster, frankly.

Mr. Manion: I agree with that.

Senator Di Nino: Mr. Bauer, you said you think the exercise is "to give Canadians the feeling that something is being done." That is your quote. I believe that is correct.

Mr. Manion: Yes, it is.

Senator Di Nino: Can you comment, please?

Mr. Bauer: Let me be frank, if I may, Mr. Chairman. What I am about to say is anecdotal, but it may explain the situation. When, what I call the citizenship and immigration committee of the other place, goes on the road it goes to Montreal, Toronto, Vancouver and Winnipeg. When I read the transcripts of those meetings, it is always the same people who testify. One such group is the Canadian Council for Refugees. It represents 160 organizations and went to Durban and accused Canada of being xenophobic and racist in its immigration policies, which was an outrage. There are all sorts of pressure groups. Except for Mr. Collacott in Vancouver, I cannot recall, in the last consultations on this bill, a single disinterested Canadian citizen. They are all working. They are not bureaucrats working for NGOs and pressure groups. They are not lawyers getting paid in this business - some 600 of them. They are just ordinary citizens who are very unhappy. They become unhappy periodically, but then everybody says, "It's all right." Minister Caplan goes to China and talks to the corrupt people in the security bureau. They say, "We will not let anybody leave anymore." She says, "We are okay now. We will not have any more Chinese off the West Coast." I wrote an article for the Reader's Digest which was made public on the same day the boats landed off Vancouver Island.

Senator Di Nino: I read it.

Mr. Bauer: The editors at Reader's Digest said they had never received so many letters from Canadians about any other article in the entire history of the magazine. They put a lot of letters on the Web site, along with the article, and I read them. They were not rednecks, racists, members of the Heritage Front and Nazis. They were worried Canadians, saying, "What's going on here?" They said, "Send them back," and we cannot do that. It is not something I would argue. What really concerns Canadians is that they have believed all along that the government and the IRB were looking after refugees. They saw Hungarians and Indo-Chinese boat people. They were proud of this. They took the Kosovars. They were proud of that and they gave their hearts. Yet they know there are rotten apples in the system and that no one is doing anything to cure it. This bill will just make it worse.

Senator Di Nino: Mr. Manion, one of the serious concerns we have about this bill is the reference to it as framework legislation, which seems to give the minister huge draconian powers to regulate. It seems that we will legislate regulation. With your background, would you comment on that? Is it appropriate? Is it good?

Mr. Manion: Mr. Chairman, I have to say that I think it is appropriate. Immigration is an area which is constantly changing. To try to embed everything in the legislation is a recipe for setting our feet in concrete. We have to have flexibility, and that we get by providing for regulations.

I am a little horrified when I hear how long it will take for the regulations to be prepared to go with this bill. I cannot believe that, in the time the government has spent preparing this bill, regulations have not been drafted.

I remember when we led the 1976 overhaul of the Immigration Act through Parliament. It was a massive piece of work. We tabled in the committee the draft regulations that we intended to pass under that act. They had been drafted and they were ready.

Senator Di Nino: Was that done at the same time?

Mr. Manion: I cannot believe that somebody has not done some work on this.

My concern is not so much about the size of the immigration movement but the content of the immigration movement. My concern is that judgments about these things should be made by the Government of Canada, not by crooks, by terrorist organizations, by unscrupulous lawyers and unscrupulous immigration consultants. That is not to say that all of them are these things. Those who are insulted by these remarks probably fall within those categories.

Immigration has been very important to Canada. However, at its peak, immigration has been run by ministers who know what they are doing, with the support of cabinet. The key decisions have been made by ministers, not by officials and not by interest groups. I will stop there.

Senator Di Nino: Do you feel that we could improve Bill C-11 to deal with the kinds of concerns that you just expressed?

Mr. Manion: My own view is that it should be scrapped and started again from scratch.

Senator LeBreton: After that comment, perhaps my question is irrelevant. A phrase that I have written down which has been mentioned by almost all of the witnesses in our deliberations on this bill is "lack of integration." There seems to be a great many silos. However, that is just a comment.

I am interested in your views on the immigrant investment program, in view of trafficking and laundering. Do you feel that there are enough safeguards in the immigrant investment program, or is that area also prone to tremendous abuse?

Mr. Manion: I think that the refugee process has become so mammoth that it is soaking up virtually all the available resources in the immigration portfolio. Governments in Canada are now spending something in the order of $4 billion per year on immigration and refugee matters. Most of that is spent unproductively. There is not enough money for enforcement. There is not enough money for visa control overseas. There is not enough money for proper coordination. There is not enough money to supervise some of these programs. They are started and then run automatically over the telephone and by paper. That is no way to run an immigration program. I am horrified by what I see and what I hear every day from friends who have connections in the immigration service.

The morale in the immigration service is dreadful and deplorable. The service believes that it is running a very badly conceived and badly led program, that nobody understands its problems and that it is not resourced to deal with its problems.

Senator LeBreton: Are there any other comments on the Immigrant Investor Program? When you consider the amounts of money that were obviously behind the event on September 11, do you think there are enough safeguards surrounding the immigrant investment program? We bring people into the country simply because they will commit to spending certain amounts of money, setting up businesses in Canada and hiring certain numbers of people. Do you have any knowledge of abuse of this program?

Mr. Collacott: I would like to speak briefly to that. There have been major problems with that program. It was suggested 10 years ago in major reports that we may not even need the program because investment is supposed to go into risk capital and there is enough risk capital in Canada. It has been very popular for immigration consultants. There is a chapter on that subject in the book by Charles Campbell entitled Citizenship Fire Sale. Basically, you can immigrate to Canada without meeting normal immigrant requirements through this program. The average person coming in has relatively little education and cannot speak English or French. It is tremendously popular in certain circles. It has been complicated to some extent because of special provisions for Quebec. However, long ago it was suggested that it was not really required in terms of Canadian needs.

Mr. Bissett: It is a program that is vulnerable to a lot of abuse. We know that has happened in the past. I am inclined to agree with Mr. Collacott that we really do not need it. If immigrants with a lot of money want to come to Canada and to invest their money here, they are free to come. They do not need to come through this program. The program can and has been used by the Russian mafia, by the Chinese triads and others to buy their way into Canada.

Mr. Bauer: I would agree with what has been said. It is a shadowy area, as you know and is hard to pin down. Even when people are prosecuted, as they are about once ever three years, not too many facts are revealed. I agree with the others that it is an unnecessary program. The chaps who were involved on September 11 had lots of money available to them. This is a wonderful way to plant sleepers in a society to await the time that you push a button, which may be five years from now. It avoids difficulties with security or anything else.

Senator Keon: One of the witnesses yesterday suggested that, fundamentally, the structural framework under which Bill C-11 was written was fundamentally flawed, that what was needed was legislation that would integrate the resources that are currently with the Department of Immigration with resources that can be used to ferret out criminal activity, et cetera. In that way the legislation could provide the Department of Immigration with the resources to deal intelligently with all these people who are now overwhelming the system.

You gentlemen are obviously extremely knowledgeable. One of you suggested that the bill should be scrapped and that we start over. Another of you said that it is totally inadequate and that we should send it back.

I would like to ask all four of you what you think should be done with the legislation. If it is replaced, what kind of legislation should replace it?

Mr. Collacott: Is that an invitation for us to rewrite the legislation? After all, senator, we are all retired.

Senator Keon: I would like to hear from you about the fundamental structural framework within which perfect legislation could be written.

Mr. Bauer: Mr. Chairman, I do not think it is necessary. When we say throw the bill out and start over again, we do not mean throw everything out. There are parts of the bill that are fine. They reflect the previous act, which is working perfectly well. Last year this bill went around on the flying circus from city to city and all the interest groups complained about it. If you examine the softening that took place after that, one more tour and there will be no bill at all and everybody will just come in without having to go through any procedure.

You cannot change everything, but you can tighten up the front end so there is a more obvious obligation to consult with security people, et cetera, more time to do it and provide something to keep people from operating freely in our society while the more dubious ones are being checked.

Frankly, the most important change I would make would be to implement a professional civil service type of commission or organization for choosing members of the Immigration and Refugee Board as the current members retire.

In addition, I would avoid single member panels. The problem at the heart of this refugee issue is that the problem of numbers is constantly running into the problem of efficiency. When Mr. Showler was here the other day, he said, "We will streamline it and move more cases. We will do that by having single member boards." That means more decisions will be positive. There will be more positive decisions because reasons for the courts do not have to be written for positive decisions.

Another thing that should be forbidden completely to the board is the holding of accelerated hearings when there is not a full hearing. They do this for all sorts of groups, especially when the group is large. These are the ones where there are dangers. Yet these people simply come in with their lawyer and a refugee control officer and have a little chat - it is all from a little piece of paper. I have seen the same paper, the same story turn up in the morning and the afternoon for two different claimants. It is routine. Lawyers recycle these things. They have their clerks do them. These people never see a member of the board. They never have to answer questions in a formal hearing. I would say that about 25 per cent to 30 per cent of these are Sri Lankans, Somalis, Mexicans and Argentineans who come in by the hundreds.

This gives nobody any knowledge of anything. Questioning is important to determine the credibility of a claimant. Questioning requires intelligence, skill and time. Those involved do not wish to spend time on questioning. You must resolve the conflict between volume and shortage of time. That means more resources and more members with lower salaries. They do not have to be paid $90,000.

Mr. Collacott: I have far more fundamental problems with the immigration and refugee parts. There may be some parts that are salvageable, but I would have to put it in those terms. On the immigration side, we have strayed completely away from the interests of Canada. The performance of immigrants who have come in since 1980 has dropped sharply. Immigrants used to earn more than Canadians. By 1995, new immigrants had dropped to earning 60 per cent of what previous immigrants earned. There is a variety of different reasons for this, which are included in my written brief. The level of poverty is increasing, as is the use of welfare. There is a whole string of problems that are fundamental to the objectives of the immigration program and the racial reactions that have started to develop. I have been worried about this for some years and have written about it. A total and fundamental review must be made of immigration and the refugee system as well.

Mr. Manion: The basic problem is that there has been no problem definition. The problems that we confront in the immigration and refugee field have not been analyzed and defined properly. We are hitting out in different ways to approach this - sometimes effectively, sometimes ineffectively. The fundamentals must be examined. Perhaps a job for a Senate committee is to really have a thorough examination of immigration. There has been reluctance in Canada, for at least the last 50 years, to have an in-depth, public policy debate about immigration matters. If one begins a debate, that person becomes charged as a racist. Anybody who challenges the status quo is a racist or a fascist or some kind of a closet bad person of one kind or another.

We do need problem definition and I do not think this bill addresses the real problems. A year down the road, you will be examining another bill, another set of Band-Aids that purport to deal with this or that symptom, but not with the fundamental and underlying problems.

Mr. Bissett: The structure of the legislation is okay. I think that it is based primarily on the 1976 Immigration Act, which is looked upon throughout the world as a model of immigration legislation.

Since the 1976 act, there have been amendments and they have been chipping away at the structure; however, it is basically sound. The new bill does not do anything to address the real issues today; it is window dressing and housekeeping. It is time for a thorough review of not only immigration policy but also of refugee policy to try to bring it into tune with the post-September 11 world. We are in a different world now. We have been living in our little castle without thinking that anything could happen to us, but it can, and we must address that. If we do not, we will be told to do so by our neighbours.

Mr. Collacott: Apropos of what Mr. Manion said, we must establish a framework for deciding what we want. The immigration legislative review, "Not Just Numbers: A Canadian Framework for Future Immigration (1998)" which was issued at the end of 1999, made the point as gently as possible that the first objective of our immigration policy is demographic: How many people do we need and why? However, we have no demographic policy. The minister has advanced demographic reasons for why we need people to support the retiring baby boomers, and other things. These reasons are not valid, according to their research.

In 2026, we will need immigration if we do not want our population to go down. Those issues should be examined. I do not claim to have all the answers. We do not have a demographic policy, even though the legislation says that is the first objective. We must establish a framework for what we expect of immigration, and why should we be doing this. That is not there. That should be the starting point.

Mr. Bissett: Mr. Chairman, I must leave, unfortunately. I wish to thank the committee for hearing me out. I am retired. I have five children and ten grandchildren, and I normally do not like to speak about immigration and refugee issues publicly. However, because of what happened on September 11, and because of my knowledge that this bill is totally inadequate, I thought I had to come to talk to you.

The Chairman: We appreciate your being with us.

Senator Robertson: Thank you, gentlemen, for coming.

With the large amount of knowledge that our witnesses bring, everyone around this table must take the testimony seriously. How we manage this information will be interesting.

I said something yesterday at committee, and I want to repeat it because, when you are wise, people seek advice from you. Especially since September 11, the public, with which I am in contact on a daily or weekly basis in my province, has been concerned about the information it receives about immigration policy, the lack of controls, and all the things we have discussed. The minister, on the other hand, is suggesting that unless we pass the bill, the Senate will be blamed for not giving her the tools to help correct this security problem.

There is a big problem in trying to get the information to the citizens. I wish we could transport your testimony to every community in Canada to let them understand what is happening.

I do not care if I am blamed for it, but the Senate, the institution, is always being chastised for one thing or another. We have had all of this information, not only today, but almost every witness we have heard has told us that this bill is not adequate and will do nothing for security that is not in the current bill.

We are in a box. How to get this information to the people, I do not know. However, if you have any wisdom to give us, because, as senators, we are supposed to think these things over carefully, I would be interested in your advice.

Mr. Collacott: Public opinion is overwhelmingly in favour of tighter provisions. There is some desire for harmonization with the United States, though this is not spelled out in the polls. However, public opinion has become clear. The advocacy groups will continue. They will be with the minister and they want to get the bill through quickly before it is derailed.

I am not an expert on legislation, but I would assume that all the urgent measures that need to be taken, such as demanding security screening at the border, could be done without having to pass the current legislation when it should not be passed.

Someone suggested that it might not be nice to the Senate to push through emergency measures in the bill. That is not really a serious reason. Parliament should be able to pass the urgent measures that it needs to pass.

If ever there was a reason for revisiting a bill, the tragedy of September 11 is that reason. My reservations existed long before September 11, however, after those events, I find it difficult to believe that the bill would be pushed through in a hurry. I can understand why someone would want to push the bill through in a hurry to ensure his or her bill is not held up for a long time.

We can say that without these provisions we cannot take action, but they are totally inadequate. If the Canadian public does not realize that, maybe the Americans will question how we can push through legislation dealing with such a sensitive issue without taking into context the new environment.

Mr. Bauer: Senator, I studied this bill pretty carefully, clause by clause, and compared it to the existing act and the one that nearly came along last year. The only clause in this bill that appears to toughen it up is where one can deport someone for criminality, crimes against humanity - that is war criminals - organized crime, and so on.

However, like so much of the bill, this is an illusion because Mendel Green's first client who comes up against that provision will take it right to the Supreme Court. If he does not, Barbara Jackman will, or another lawyer will. This is a just a straw man put in the bill. It will never pass through the Supreme Court.

People are being turned back at Niagara Falls to get documentation. We hear sob stories about all these poor folks going to Vive La Casa. All they have to do is claim refugee status in the United States. They enter the United States with passports and visas, which they destroy on the way to the Niagara frontier. This includes Somalis and Tamils from Sri Lanka. I have had hundreds of them before me.

There is nothing that has to be passed urgently for our protection. There are many things that should be done to protect us, not from what happened in New York but from drug peddlers, from credit card people, from extortion in our ethnic communities by their own gangsters.

All sorts of things must be done, and this act does not touch them at all. The current act is just as good for anything that we want to do, if the government has the guts to do it. However, it requires guts and coordination.

With Mr. Manley chairing a security committee, examination of this whole issue and how to use the present legislation to act against people who might be a threat to Canadians or to Americans might be suggested.

Do not make the mistake of saying we should harmonize with the United States. Their system is lousy; it is almost as bad as ours, except they have a few weapons they can use. There is no need to harmonize with the Americans. We can do it ourselves. I do not like harmonizing with the Americans anyway.

Senator Robertson: Having regard to the wisdom that is before us today, were you asked to appear before the House of Commons committee?

Mr. Manion: No.

Mr. Collacott: It is not publicized so I had to find out about it to make an appearance. I was allowed to appear.

I might mention that when the results of the tour across Canada were reported to the minister, the chairman said he was very pleased with the results because all 154 presentations supported the bill. It was not open enough. He said there were two or three who wanted to stop immigration. I am not aware of any who said they wanted to stop immigration, but some did ask questions about how many people we want. One person was described as un-Canadian for raising that question in Vancouver.

The House hearings were almost totally loaded with advocates. The minister can say, "I have heard from the Canadian people and they think we should widen the system for refugees." She said she was being tough on the refugee system. Some of the advocates then retort, "You are being too tough so you have to ease up." I do not think we are being tough at all. In some key respects we are worse than we were before, and we will have an increasing disaster on our hands.

Mr. Manion: Whatever the Senate decides to say in its report on this bill, I hope that you will recommend that there be a fundamental examination of this whole issue, starting with basic principles and a definition of fundamental problems.

I would be the last person in the world to recommend a royal commission, as they usually report just after the problem either has been solved or the crisis has overwhelmed us. I think this is something that the Senate itself could do. I remember fabulous reports from the Senate in the past years. They were in-depth reports and were far better than any royal commission reports. You have all the tools and the experience.

I would hope that your report would at least point out the need for the government to read its own studies. As Mr. Collacott has pointed out, there have been endless studies on this subject, which nobody reads. The government should read its own correspondence. It is a disgrace that people, like me, write letters successively to one minister after another and receive pre-printed replies from correspondence clerks. The government should listen to people other than the interest groups if it wants to find out what Canada thinks and what can be done about these problems.

Senator Robertson: I can understand why you were not invited.

Mr. Bauer: I have appeared on the other committee three times on other subjects relating to refugees. It was very courteous. However, a week ago I was present at a television discussion about this subject in London, Ontario, with someone involved with immigration who is a member from that area. I mentioned the numbers of people, the problem that the refugee board was having in dealing with them and how we had to find a solution and more resources. When his turn came, he said, "Some people just don't like immigrants or refugees." All my neighbours complimented me because I said, "This is outrageous. I will not stand here and be insulted by this man." After that, everything was calm and beautiful.

Senator Fairbairn: On the comments that Mr. Bauer and others have made, in any attempt to assist this process, would you agree there would have to be an extensive increase in the number of qualified individuals, as a foundation - and in addition to policy, of course - to make this system work in any plausible way with this bill or any other bill?

We have heard testimony from members of the protection board, who came here the other night looking stressed beyond belief.When you talk about resources, a lot of people think about money, but in their case, the people were not there to drive the system.

Mr. Bauer: This is very true. The number of visa officers abroad has been cut down. The Canadian immigration officer numbers have been cut. Locally engaged staff members perform as immigration officers. They are bribable. They are often in societies where money talks. There have been many cases of that.

We must regain control and stop doing so much paper checking abroad because it is useless. The Immigration and Refugee Board needs more, and perhaps, lower-salaried people. It has about 180 people now, which is not enough to function without destroying the system itself. If the board goes for the one-member panel and tries to speed cases through, we will just have more problems. Resources are absolutely vital.

We all have a problem with budgets and money. That is all we hear. However, I am not speaking of refugees. There are refugees and they deserve what they get. However, in welfare and legal costs, refugee claimants cost us an estimated $600 million per year, at the rate of 20,000 claimants per year.

We give the UN High Commissioner for Refugees, UNHCR, about $15 million a year of its $1 billion budget. The UN High Commissioner spends about 50 cents a day on the 20 million refugees that the UNHCR is responsible for. We are spending more than that on the 25,000 who enter each year instead of helping the UNHRC - we gave $1 million for the Afghanis who are in those camps in Pakistan. That is shameful. We should be helping far more.

Senator Roche: I have a question for Mr. Manion, and I hope you will allow me to give him a special welcome. We went to college together many years ago.

Mr. Manion: I hope that is not held against me.

Senator Roche: You became one of the great power figures in Ottawa and I only became a senator.

If we are to make any amendments to the bill before we send it back, they must be credible amendments. What is your view about this committee attaching an amendment calling for the use of the notwithstanding clause from the Charter? Would that be a credible amendment, in your view?

Mr. Manion: Mr. Chairman, when I talk about the use of the notwithstanding clause, I am not talking about a blanket bypassing of all the provisions in the Charter. It is only one aspect in the Charter that is causing all these difficulties, and that is the implicit reference to due process, which means we cannot deal in a summary fashion with would-be entrants to our country who have no connection to us. Other countries do - virtually every other modern state does. We must have a notwithstanding clause indicating that, notwithstanding such and such a provision in the Charter, it is within the powers of the Canadian government to make this kind of decision in respect of people who have no ties here. It does not mean people have no right of appeal. They can go back to their own countries and appeal, or they can go back to their safe third country and appeal.

I do not believe we should be paying their legal costs either in all these cases, but that is another matter.

The other linked amendment you might make is to restore the safe third country provision that was in the 1987 refugee legislation but was never proclaimed - assuming it would withstand a Charter challenge, about which I have some personal doubts. That would go a long way in dealing with our current problems.

Senator Roche: Could you call upon your political experience to give a view about recognizing that any amendments will open up a protracted debate in the House of Commons that will bring in again, in full force, both sides - those who want the bill to be kinder to refugees and those who want it tougher on terrorists? It would be a long time before the bill re-emerged or got to proclamation. If that were the case, would it be your advice to take the bill as it is? I think you said at one point that it will help a bit. Those were your words.

Mr. Manion: Yes.

Senator Roche: You spoke about the Senate, or perhaps the Senate and the House of Commons doing a study together, so extraordinary is the depth of this problem. Would you be satisfied if the bill went ahead as it is, for all the reasons the government has advanced, if it were tied to a guarantee of a forthcoming in-depth study that we would ask the government to take seriously?

Mr. Manion: I would be happy, Mr. Chairman. Some specific things in the bill are downright dangerous and they should be identified and dealt with. If they are identified and dealt with, I would be inclined to hold my nose and go along with what Senator Roche has said.

Senator LeBreton: Can I make a comment, Senator Roche? You were a member of the House of Commons, and you are suggesting that we amend the bill and return it to the House of Commons. I think that is an affront to the members of the House of Commons, who were duly elected. You are saying, in effect, that we should amend the bill and send it back to the House of Commons, that somehow or other, members of Parliament cannot be trusted to do the right thing by this legislation.

The Chairman: I did not take it that way.

Senator LeBreton: He said it a couple of times yesterday as well. The idea was to pass it, and not let it get opened up for fear it gets back into the -

The Chairman: I think he was talking about length of time.

Senator Roche: The issue was length of time, not quality.

Senator LeBreton: That is the way I took it.

Mr. Collacott: I am concerned that the legislation is too deeply flawed. It has taken 25 years to propose new legislation. Some of the elements on the immigration side will worsen the conditions that are causing this reaction. I think it is important that the basic review take place before the proposed legislation is passed. It could be another 25 years before we get directive legislation in place.

The Chairman: On behalf of all of us, thank you for coming.

Our next panel has two lawyers, who come to us with advanced billing from a previous witness who talked about their considerable legal skills. With us this afternoon are Mr. Green and Mr. Waldman. I take it from Mr. Bauer that both of you are immigration lawyers. We also have with us Ms Robin Seligman, a representative from Canadians for a Fair and Just Immigration Policy.

Mr. Waldman must leave soon, so I will ask him to proceed first.

Mr. Lorne Waldman: I am a member of the Canadian Bar Association, which testified yesterday. I support everything that was said but I asked to come here separately because I am concerned about the myths that are being propagated in the media. It is important to separate myth from reality. I have written a paper entitled, "Separating Myth from Reality: Immigration and National Security," and I should like to refer to the myths identified therein.

The first myth is that our immigration policies are too lax and that if they were tougher the attacks in the U.S. on September 11 could have been prevented. I am talking in general terms here. That is one myth that must be considered carefully. Despite the information released in the immediate days after the attack, there is no evidence now that any of the perpetrators came through Canada. In terms of US immigration laws, all the people seem to have come directly to the United States. According to information we have received, they entered as non-immigrants, legally being processed outside of Canada, either as students or as visitors. They were able to do this because they were people who were unknown to the Security Intelligence Services abroad.

When we talk about immigration and national security we must have realistic expectations of what can and cannot be achieved. We must also acknowledge the reality that millions of people will cross our borders every year, and we must keep open borders. It is in this context that we must examine our immigration laws to determine what we can reasonably expect from them and what things we cannot.

The reality is that the key issues are not issues of immigration law but are issues of intelligence. The failure of September 11 was not a failure of immigration, it was a massive failure of the intelligence networks in Canada, the United States and western European countries because they failed to detect - or, if they detected, they failed to take seriously information that suggested these attacks might occur.

The second myth that we hear repeatedly is that our immigration laws are weaker than those of the United States. In the appendix to my paper, I have done a summary of comparison of the two systems. Other witnesses have made the same points, so I will not harp on this. In many ways, our law is tougher in the law, and we must distinguish between the law and the practice. We have the power, under section 103, to detain undocumented people; the Americans detain undocumented people. We both have powers to deport people who are members of terrorist groups. Under the current immigration laws, we have the power to hold secret hearings and file secret evidence; the Americans have similar powers. One thing that the witness said earlier - and, I think it is inaccurate and has been repeated ad nauseum in the media - is that the Americans can summarily deport people who make refugee claims. That is not true. There is a process in the American system which allows for an expedited first hearing, called a credible fear hearing, but if you get through the credible fear hearing, which 85 per cent of the refugee claimants do, then you are entitled to the full asylum process in the United States. A significant fact is that the United States has already enacted provisions to allow people to apply under the convention against torture so they can get further protection, which is not yet available in Canada. Moreover, the American asylum system has an administrative appeal to the Board of Immigration Appeals Precedent Decisions and the Canadian system does not. In many ways, the American system is more generous than the Canadian system at the present time.

The significant differences are differences in procedure. Canada has the power to detain but it does not use it and has not used it. We do not need a new immigration bill to do that. Canada has the power to screen people at the port of entry; we do not need Bill C-11.

The third myth is that we need Bill C-11 immediately. In that sense, I agree with the previous witnesses. I am only here to address issues of national security. In terms of national security, we have the tools that we require in our current immigration law. The minister recently announced up-front screening. We have the power now to do that. It is not a power that is required by the legislation, it is a procedural power.

The problems in our system are not problems of the law or of resources. Three or four years ago, the Ontario region of immigration decided that, because so many resources were being spent on screening refugee claimants when they came in, a pilot project would be started, which has now been operating for three years. Under that project, when a person claimed refugee status, instead of being fully interviewed at the port of entry, a very cursory interview was done and he or she was allowed in and given a form to mail back. Everything thereafter was done by correspondence. I would say that more than half of the refugee claimants who have come to Ontario have been subjected to this pilot project under which they are not even interviewed before being allowed in.

This was done in the face of a law that allows the Department of Immigration to detain undocumented people. It was done for simple reasons of resources and costs. The procedure was reversed after September 11 because of the political perception, and perhaps the reality, that we must screen these people more carefully.

The irony is that the response of the government has been to screen everyone, which is not a reasonable response. The reality is that there are some people who need not be screened more than cursorily. An 80-year-old woman or a five-year-old child is not a terrorist threat and we should not be spending resources subjecting them to three-hour interviews, to which apparently every refugee claimant in Canada is now being subjected.

Letting many people in without any screening, as we did previously, was wrong, and what we are doing now - screening everyone - is wrong. We must set up criteria to screen the people who need to be screened. If there are suggestions that they pose a security threat, we have the power to detain them.

The last point in my paper deals with what I think must be done with respect to national security. Most of the things that must be done have very little or nothing to do with this immigration bill. Most of the things that my friends who appeared before me spoke about have very little to do with the bill itself.

We must make better procedures for passport issuance. Ahmed Ressam was able to get a passport using a forged baptismal certificate. I would love to know who the lawyer or engineer was who guaranteed his passport and whether there has been any check made as to whether anything improper was done.

The only safeguard in our current passport issuance process is one person, be it a lawyer or a doctor, must certify that the person is someone known to him or her.

We must issue permanent residence cards, but this again has nothing to do with the law. It is something we could do now. The cards were supposed to have been issued long ago but, because of cost, the issuance was delayed and now is being brought forward. We require security features in other types of documentation, such as social insurance cards.

The principal issues, in terms of protecting our national security, have to do with intelligence. I have personally been involved in cases in which the RCMP and CSIS have been at loggerheads and have not co-operated. If CSIS knew about Ressam two years before he left the country, why did it not pass that information on to immigration so that immigration could act? Immigration has the power to act under section 40.1, but apparently nothing was done.

Something that is now being done is more careful screening of people who arrive at airports, but it must be done in a more rational way than is currently the case. For that, again, we do not need the immigration law.

In conclusion, there are things we can do but we do not need this bill to do them. We need the will and the resources to properly administer the law that we have.

You must distinguish what your task is. Your task is to study Bill C-11 and decide whether you should pass it. Many of the things that were discussed by previous witnesses have nothing to do with Bill C-11. For example, one of the previous witnesses said "safe third country." Both the current law and Bill C-11 have safe third country. The problem is that we have not implemented it. That requires regulation. Therefore, that has nothing to do with your discussion.

I agree that we need to reach agreement on readmission. One of the major problems in the immigration system is deportation. It takes forever to deport because countries do not want to take back their nationals. If we want to take our immigration seriously, we may have to enter into readmission agreements. However, that has nothing to do with the bill.

We have started to tighten procedures up front, but that has nothing to do with the bill.

I agree that we must choose better IRB members, but again that has nothing to do with the bill.

One of the witnesses said that we are broadening the definition. The reality is that the United States already has a broader definition because the United States has already implemented the convention against torture. We are only fulfilling our international obligation made when we ratified the convention against torture saying that we will not send people back to torture. That is what this bill does.

It was stated that we should weed out frivolous claims at the beginning. We had a procedure in Canada called the credible basis procedure that was supposed to weed out frivolous claims. We got rid of it because it weeded out less than 10 per cent and was so costly and time consuming that it was decided that it was not worth it.

The United States has something called a credible fear process, which is similar to our former credible basis procedure, to weed out frivolous claims. However, 85 per cent of people get through the credible fear hearing. Therefore, massive resources are spent to weed out only a small percentage. Parliament decided several years ago that was a waste of resources.

My point is that many of the comments that were made by previous witnesses have little or nothing to do with this legislation.

I want to comment on the Charter and the use of the notwithstanding clause. I would hope that is not seriously considered by the Senate.

First, the Singh decision has been grossly misstated.I was initially hopeful that the Singh decision would be interpreted more broadly, but it is has been interpreted by the courts in Canada in a very narrow way. In Singh the court said, as it has now been interpreted by the Federal Court in subsequent cases, that if the Government of Canada gives a person the right to a hearing, then he has the right to a fair hearing. After enactment of provisions that denied certain categories of persons the right to make refugee claims, such as if you were found to be a danger, we challenged that saying it violated Singh, because everyone had to have a hearing. The Federal Court of Appeal concluded that there was no violation of the Charter in denying someone a hearing as long as it was not done in a discriminatory fashion.

Therefore, what the previous witnesses have stated is not correct. Singh does not give a right to a refugee hearing. It only says that if the government grants an individual a hearing, it must be a fair hearing. The government is free to enact legislation that denies people the right to a hearing as long as it is not done in a discriminatory fashion. That is the interpretation that has been given to Singh by the Federal Court of Appeal.

It is true that we have been successful in convincing the court that you cannot send someone back without some kind of assessment as to whether they would be in danger, but the procedures involved in assessments of risk do not require complex hearings in the way the previous witnesses suggested.

In other words, I do not believe that a notwithstanding clause is necessary. I believe that the evidence given to you by the previous witnesses was inaccurate in that it misstated what Singh says. I think the witnesses stated what we would have liked Singh to say, but it is not what Singh has now been interpreted to say.

Mr. Mendel M. Green: The previous panel is well known to me. I have been practising immigration law for 40 years. I am an immigration law specialist. I am a lawyer who has been actively involved in perhaps more cases than most of the immigration bar, and I am quite proud of the fact that all three of my children are immigration lawyers. I am somewhat troubled by the former deputy minister, Mr. Manion, saying that the decisions must be made by the government, not refugee groups or unscrupulous lawyers. I must comment on this. That means, "Let us, the government, the bureaucrats, make those decisions, and keep the lawyers out it - lawyers like Mr. Waldman, perhaps one of Canada's foremost litigants in immigration, who lectures to the Federal Court of Appeal judges and the Federal Court Trial Division, and is well regarded, well respected; and Barbara Jackman, a co-counsel in the Singh decision, this famous decision that we are all talking about that was misrepresented by the previous panel.

Lawyers have only one job in this country, and that is to ensure that justice in Canada is administered in accordance with the law. Nothing else. Frankly, I am shocked by the comments of the former deputy minister of Immigration, supported by the rest of the panel members, in saying that you should just let the government make the decisions and keep the lawyers out of it.

Look at the statistics from LEXBASE and Richard Kurland, showing that the Federal Court overturned more than 50 per cent of visa officers' decisions. What does that tell you? It tells you that those people, acting for the government, are not upholding "the law of Canada."

I am troubled by that kind of rhetoric, by that kind of - I do not want to say "right-wing attitude," but it does trouble me. I have an obligation as a lawyer, as does every professional lawyer in this country, to uphold the law. If we do not have the protection of the law in this country, the Senate is in big trouble and every Canadian is in trouble.

I am here to talk about two clauses in the new bill. There are many areas that I am concerned about, but from what I have heard today, you have been involved with security and refugees and things like that. I will not talk about that today. I will talk about a situation that is well known to all of you, because you have read about it in the media time and time again, or maybe when you were practising your professions or were members of Parliament. Your constituents come to you and say, "My son came to this country with me 30 years ago. He never became a Canadian citizen. He is married and has five children. He has committed a crime, and they will deport him. Can you help me?" We have all heard and read about this.

I have been practising law for 40 years, and this will be the third Immigration Act that I have seen. In the old days, under the first Immigration Act, people would petition the Minister of Immigration and the bureaucrats to be allowed to remain in Canada. Then the Immigration Appeal Division was created as an independent body to deal with these various issues. I have appeared before Gordon Fairweather, and I have great respect for the appeal division of the Immigration Appeal Board. They were given the equitable jurisdiction. If a permanent resident committed a crime in this country and the Immigration Act said the person must be deported, they could review that decision and deal with all the circumstances of the case.

Serious criminals whom the minister found to be a danger to Canada could not get to that Immigration Appeal Division under the present Immigration Act. The Federal Court Trial Division and the Court of Appeal have regularly supported the Immigration Appeal Division. Rarely are their decisions overturned. You heard all these discussions about two-member panels, et cetera. They are mainly, except in very rare cases, one-member panels. They have the respect of the Canadian Bar Association. They have the respect of Canadian Immigration. They do an admirable job, and their decision-making power has been checked by our courts of appeal and has been found to be, in the main, appropriate.

The Immigration Appeal Board follows the Ribic decision and looks at the seriousness of the offence, the possibilities of rehabilitation, the length of time in Canada, the family in Canada that may be affected by this individual being deported, the support available, et cetera. The minister is now proposing in this new bill that if a permanent resident of Canada commits "serious criminality," which is defined as a crime punishable by a term of imprisonment of two years, he or she has no right of appeal to the Immigration Appeal Division. That will create enormous difficulties for the politicians and the minister in the future. It is ill founded and does not make the slightest sense.

In the past few years, only 500 to 800 of these cases have gone to the Immigration Appeal Division, and maybe 40 to 50 per cent of those were criminality cases. When the Immigration Appeal Division looks at the case independently and carefully, at least they give the individual the opportunity to weigh the circumstances.

Take this scenario. Mr. Smith commits a crime. He is from England. He came here with his parents when he was a year old. He is 30 years old, married with many children, and is sentenced to two years less a day in a provincial reformatory. He has a right of appeal to the Immigration Appeal Division on the equitable considerations test to determine if he should be permitted to stay in this country. Mr. Brown, another Englishman in the same circumstances, goes before another judge, and instead of two years less a day in a provincial reformatory, the judge gives him two years - one day more - and there is no appeal. What a difference a day makes, 24 little hours.

Frankly, ladies and gentlemen, I have handled these "trauma cases," as I call them, for the families of people who have become involved in criminality. The minister and the government, in this particular clause, are unfortunately throwing the families of these people onto the welfare system, and we Canadians will ultimately pay the penalty for that. It is ill founded. It makes no practical sense. There is no high volume. The government wants to say, "We are tough on criminality." I can tell you that the present act, and the bill that we are studying here, is frankly tough on criminality, and it is applied that way. We are all parroting the same thing. The problem is resources, resources, resources. I am saying the present Immigration Appeal Division works. This section should not be changed, or it will cause Canadians a great deal of difficulty in the future.

The final say on the removal of Mr. Brown and Mr. Smith from Canada will lie with the minister. We are leaping back 40 years in immigration law and giving the minister the right to make a decision on whether or not there are compassionate, humanitarian grounds for allowing Mr. Smith and Mr. Brown to remain in Canada. Something is wrong. It is unnecessary. The Immigration Appeal Board, and I appear before it probably more than any counsel in Canada, is doing a fine job. I must say they have disagreed with me on many occasions and many of my clients are now back wherever, but this is a totally unnecessary clause.

I want to move on to another issue as outlined on page 7 of my brief. The Standing Committee on Citizenship and Immigration studied this very problem in 1998, and recommended that the children of these people need some protection and Parliament should react to this issue. You can read that in my paper, so I will not repeat it. One would think that in drafting a new act, they would consider the recommendation of the parliamentary committee, which stated:

Although the committee does not recommend a dramatic change to Canada's law, we believe it is time to cautiously re-examine our current position, at least in relation to people who arrive as children.

I have been around a long time, in fact longer than many of these bureaucrats from whom you have heard. In the old days, there used to be a domicile rule. People who came to Canada and stayed here for five years or ten years could not be removed. That was changed in 1976 when the Immigration Appeal Board was established and these people had the right to appeal.

As a compromise, I have recommended that any permanent resident who has been here at least five years should have the right to appeal to the Immigration Appeal Board on compassionate, humanitarian, or on all the circumstances of the case, equitable grounds.

It makes no sense to take criminals for whom we Canadians are responsible because they came here as a children, and grew up and acted improperly, and send them back to wherever. Banishment, ladies and gentlemen, disappeared from the law of civilized nations years and years ago. We are re-imposing banishment in Canadian law with this particular clause, in my respectful submission.

Yes, we should get rid of the bad apples. I do not stand up for criminality. I am not soft on criminality, but clearly, we have to place all the circumstances of a case before an independent tribunal of the Immigration Appeal Division.

My second concern, interestingly enough, follows through on the comments of Ms Sparling from OPIC. She is concerned that there is no regulation of consultants. To be frank, if your six-year-old child claimed to be a consultant, Immigration must, by law, deal with that individual - if someone were stupid enough to pay your six-year-old child as a consultant. Immigration must deal with that person as the consultant.

There is a place for consultants, in my opinion, in helping people obtain employment authorization, as Ms Sparling mentioned, although they should be regulated. Ms Sparling suggested licensing, and I concur with that. In the quasi-judicial process of a deportation proceeding - a refugee removal proceeding - there are hundreds, if not thousands, of people who have no legal training at all representing people faced with such a proceeding.

Parliament has studied this, and this is already the sixth time that I have commented on the regulation of immigration consultants before a parliamentary committee or a Senate committee. I have been before the Law Society of Upper Canada four times on this issue.

Everyone recognizes that you do not need to be a rocket scientist to know that these people must be controlled, and they themselves want to be controlled. What does the government do in Bill C-11? Subclause 167(1) states:

Both a person who is the subject of Board proceedings and the Minister may, at their own expense, be represented by a barrister or solicitor or other counsel.

That means anybody - the six-year-old can represent a person in the most serious refugee case. Is that right? I say no. I suggest that anyone appearing before a judicial or quasi-judicial proceeding should be a barrister and solicitor. We Canadians can control those people, although we have no control over the other people.

Coincidently, Ms Seligman, who is a former chair of the Ontario Bar Association, asked me if I had seen a particular Web site. It is a site for companies called "Angel, Edward & Associates" and "McGuire, Lewis & Associates" who carry on business, apparently, in Hamilton, Ontario. Angel, Edward, et al, claim to provide immigration legal services. Of particular interest on their Web site are pictures of their staff and their foreign agents. Two photographs on the site are labelled, "not agents of our firm; discharged for receiving funds not in accordance with the approved real contracts." At the other end of the site, it declares in English and Russian that they handle family sponsorship programs for US$10,000. There is no control.

I wish I, with 40 year's experience, could garner such fees. Frankly, in my respectful submission to this senate committee, the government has been irresponsible in not acting on its authority to regulate the consultants. The consultants themselves want to be regulated.

I am not making a bid for more work for lawyers, but I am saying that report after report has said that the public does not have protection, and yet the government does nothing. The federal government's position is that licensing is in the provincial jurisdiction, and yet it has been in the Immigration Act for years. They are perpetuating that aspect. Instead of saying that only a qualified legal person should represent a person in a refugee deportation hearing, which can have horrendous consequences, they allow anybody to "consult."

The reasoning is that you should be permitted to have anyone of your own choosing - your minister, your family - to help you. That is fine, if they are not getting paid. However, as you can see from these, they are charging far more than any lawyer could charge. If a lawyer did charge a fee like this, every law society in Canada would make that lawyer give back the money and/or lose his or her licence.

Those are the two concerns that I wished to speak to today. I have many concerns about security, but I do not have time to speak to that today. This senate committee could easily fix my two concerns, because they are not monumental and should be addressed in a serious fashion.

The Chairman: You are obviously an awesome litigator.

Ms Robin Seligman, Representative, Canadians for a Fair and Just Immigration Policy: I am with Canadians for a Fair and Just Immigration Policy. It truly is a national coalition, and represents groups from Ontario and across Canada, including the Canadian Hearing Society, the Italian National Congress, B'nai B'rith Canada and the Canadian Bar Association.

I am a lawyer and a member of the Ontario Bar Association, where I served as chair for three years and as an executive member for 12 years. I also served on the Canadian Bar Association for three years. I have been practicing immigration law for 16 years.

I will focus on the issue of imposing leave for judicial review. Our coalition fully supports the position set out by, not only Mr. Green and Mr. Waldman, but also the Canadian Bar Association. We have also presented a position paper. In particular, Mr. Green commented on a compromise on the appeal rights of permanent residents - a five-year rule, at a minimum, should be recommend by the Senate. Anyone who has been in Canada for at least five years must automatically have a right of appeal to the IRB. Please note that it does not mean that the appeal division will allow them to stay here. It means that people have an opportunity to present their case.

Also in support of Mr. Green, and on the issue of consultants, the coalition fully supports regulation and the Senate could immediately recommend that. I appeared before a parliamentary committee approximately 10 years ago on the same issue on behalf of the Ontario Bar Association. Nothing has been done in the time that I have been practicing, and it is an outrage. Almost every day of the week, I get people coming in to tell me horrific stories about the bad advice they have been given by people not qualified to dispense legal advice.

I know the focus has been on September 11 and the security issues. I would reiterate that the position presented by this panel is that Bill C-11 will not protect Canadians any more than the present legislation. It is respectfully submitted that the minister has the authority under the present legislation to do whatever she must to make Canadians feel more secure. Just to let you know, under the present legislation, anyone who seeks admission to Canada at a port of entry can be fingerprinted, photographed and detained for examination. That exists now under section 45 of the Immigration Act. In addition, if an officer is not satisfied with respect to the person's identity or suspects that the person is a terrorist or a member of an organization engaged in terrorism, that person can be detained under subsection 103.1 of the existing legislation.

Being suspected or determined to be a terrorist undoes everything. A terrorist cannot make a refugee claim and cannot avoid removal to a country of persecution. That is contained in subsection 46.01 and section 53 of the current legislation. All the smoke and mirrors about we need to pass this bill now to protect Canadians, with all due respect, is giving them a false sense of security.

The minister, without passing legislation, has told people that if we cannot paper screen you at the border, we will send you back. There is already much authority for the government to do what it must to get things right, rather than pushing this bill through as a knee-jerk reaction to September 11.

I fully support Mr. Waldman's comments. The main issues seem to be security, intelligence and communication between the departments. We all, I am sure, saw the documentary by Mr. Terrence McKenna on Mr Ressam, and we were astounded that CSIS, after tracking him for two years, had never communicated with Immigration - and he was under a deportation order.

The department is underfunded. There are many people with removal orders against them who cannot be tracked down. That is also an area that needs full resources and should be taken seriously. That does not mean passing Bill C-11 quickly. I hope that addresses some of your concerns.

I know senators are under a great deal of pressure and want to be seen as helping to protect Canada. However, do not do the reverse. Do not pass legislation that gives Canadians a false sense of security, because it is only a piece of paper. If you do not have the manpower or the resources to enforce what is written, it is of no help. They have the power right now, under the present legislation, to do what they must do. They must have the willpower and the guts to get up and do it.

With respect to other issues of serious concern, this bill provides for retroactivity. That means anyone who is in the system now will have the provisions of this bill apply to them, notwithstanding when they made their application or the position they are in. I will focus on the people in the process for immigration rather than refugee status. Please remember, refugees constitute approximately 10 to 15 per cent of the people whom we bring into the country. The rest of the Immigration Act and the policies deal with other people, such as those who have gone through security screening and those who have been fingerprinted. I do not think those people are posing what Canadians perceive as a major threat to our security. When someone makes an application for permanent residence, it now takes anywhere from two to four years to be processed at our visa offices. People pay a great deal of money to be processed. It costs $500 per adult and $1,000 for a business application. When you are coming from a Third World country, that could represent one or two years' income for your whole family. These people who have made an application in good faith under the existing laws, knowing that they have received enough points to qualify, or believing they have met the business or entrepreneur definition, will now be excluded if they no longer qualify under Bill C-11. Therefore, someone who has been waiting up to four years to have their papers processed will now be refused, without getting their fees refunded. These people have relied on what is posted on the government's Web sites and on what the laws are. They have made their applications in good faith. They will now have the rug pulled out from under their feet, after waiting for years, because the laws have changed. Selection will change in terms of requiring higher levels of education and other things that may affect people negatively.

The recommendation in that regard is - and the government has done it before - they should do parallel processing. If you qualified under the old act, you should qualify under the new act.

The concept of leave to appeal makes people's eyes glaze over because they do not know what we are talking about. I want to bring it down to a practical level. The government wants to impose leave to appeal on overseas decisions. The minister has said that this will level the playing field. She is saying that if one needs leave while inside Canada, then the same should apply to those overseas. The processes are totally different. When people overseas make an application, they are not entitled to legal counsel, unless they are going through the process in Quebec. They are not allowed to tape the interviews. All you have is some visa officer or designated immigration officer, someone who is not even a Canadian, putting their words down and refusing them. These appeals represent about 850, and sometimes fewer, cases out of 250,000 applications in the system. It is extremely important to allow these people a fair process and not force them to go through the screening. The Inter-American Commission on Human Rights has said that our leave provisions - and this is in the refugee context - constitute almost a numbers thing. It is docket control. That process is totally inappropriate for overseas decisions.

The Auditor General commented in his 2000 report that the quality of decision making is lacking and inconsistent. Visa officers must be subject to scrutiny and review. In particular, I have had the opportunity to represent a business family with a 17-year-old son who was hearing impaired. The Immigration department refused that family because that child would place excessive demand on our health and social services. The federal government has defined "excessive demand" to be something other than costs. In other words, will there be displacement of Canadians? Will that cause Canadians to lose access to services? I had the opportunity to cross-examine the Immigration doctors who said this person would cause excessive demand. Two doctors based in Ottawa said they had never dealt with someone with a hearing problem. One was a retired cardiovascular surgeon and the other a GP from Quebec. No inquiries had been made of Ontario, which is where this family wanted to move, as to what processes or services this person might be entitled to. One of the doctors said that people who are hearing impaired had better have a superior IQ if they want to come to this country.

The Department of Justice consented to that appeal and we are still in the process. If leave were imposed, I would have never uncovered the basis for the decision. I would not have had the opportunity to cross-examine the doctor. I would never have found out what they were thinking and why they made that decision. On their affidavit, they said something different. They said they had looked into all the possibilities and what would be required, and this person would cause excessive demand.

The minister wants you to believe that those officers have the authority and are the best people to make that decision. With all due respect, they should be subject to scrutiny.

Senator LeBreton: Mr. Green, my question concerns clause 64, which the Canadian Bar Association characterized in their testimony as "mandatory deportation." Are you suggesting that clause be removed, or amended?

Mr. Green: It should be amended. If people come here and commit serious crimes, I would say that if we were to have a five-year domicile provision, then they should go to appeal. If it is any earlier than that, I do not have much sympathy, especially for someone who has just arrived here. If a person has been here 25 years and they have committed one offence, it is like banishment. No immigration officer has any discretion over that. It is just a paper - what a difference a day made. That is it.

The Chairman: I have heard this argument and it puzzles me. I will use your 25-year example. If people have been here for 25 years, why have they not become citizens?

Mr. Green: That is a very good question.

The Chairman: If that puts pressure on them to become a citizen, then that is not a bad thing, in my view.

Mr. Green: That is true. Even though it is in the act, unfortunately, some in our multicultural society do not understand the importance of becoming a Canadian citizen. We must get those Citizenship Court judges out there to make people understand the benefits of Canadian citizenship. Many also have the concept of retaining their Italian or whatever other passport they have.

Right now, individuals who commit a crime that is punishable by a maximum of 10 years, which is almost 75 per cent of all the offences in the Criminal Code, are subject to removal. It does not make any difference. You must understand that you are dealing with a multicultural country and they do not understand the implications.

The Chairman: Do they then say, "Why did someone not tell me?"

Mr. Green: That is right. Then the Immigration Appeal Board stays the removal order and that individual is reformed.

Senator LeBreton: You hear many cases of people who have lived in Canada all their lives, and when they apply for their Old Age Security, they realize they are not citizens. If one of those people committed a crime, they could be deported to God knows where.

Mr. Green: I practised a great deal of criminal law in my younger days. Many of the federal penitentiaries have better reformation policies and programs than provincial ones. When you know your client is going to get about two years, you say to the judge, "Send him to the federal penitentiary; he will reform himself or herself." I am afraid that bureaucrats have forgotten that penitentiaries are there not only to punish people, but to reform them as well. We forget that there is a process of reformation. Fortunately, some of those people in the penitentiary system actually do reform.

That one day just turns it into banishment. They use a different term, though.

Senator Fairbairn: Mr. Green, is there any way that you could foresee the spirit of the changes you want under clause 64 being effected by way of regulation?

Mr. Green: No, it is right in the bill. I have raised this with the senior bureaucrats. They say the policy of the government is to be strong against criminality. Again, you are dealing with people as if they were paper. That is the effect of this unusual clause.

I am not trying to be facetious, but can you tell me the difference one day makes in removing a person from Canada? It does not make sense, especially when the families who are affected have committed no crimes. Canadians will be paying more welfare costs, and there will be sociological costs because the children do not have one parent here. The drafters of the bill have not appropriately considered the totality of the social problems.

Ms Seligman: At the parliamentary level, when the government was making its presentation after clause-by-clause consideration, they introduced what they called "an independent adjudicator." An independent adjudicator has no authority whatsoever under the bill to make any decisions on the circumstances of the case, other than to confirm, "Is your name Bob and did you commit the crime and was it a two-year sentence?" If the answers are in the affirmative, the adjudicator must deport the person and there is no right of appeal.

I heard over and over in different testimony by government officials at the parliamentary level that the independent adjudicator would miraculously provide some kind of review. They went on to say that the person could go to the Federal Court. I hope it is perfectly clear that the independent adjudicator has no authority whatsoever to review the circumstances of the person's case or how long they have been in Canada; neither does the Federal Court. It is strictly an administrative process.

Mr. Green: The Federal Court can only make a decision by asking, "Are you Bob and have you committed the crime and have you been given a two-year sentence?" They can ask nothing about the circumstances of the case or the human problems that may occur as a result of Bob being removed.

Ms Seligman: I have heard about Federal Court oversight over and over again in the media. It is an illusion.

Senator Fairbairn: There is a limitation on the Federal Court in this bill as well.

Ms Seligman: Yes. There will be leave anyway on those decisions because they are inside Canada, but again, they do not have the authority.

Senator Fairbairn: As you know, we have a document that indicates the kinds of regulations that they are intending to put forward, but we do not have the actual regulations, anymore than you do.

Can the issue of consultants be dealt with through regulation?

Mr. Green: It can be, absolutely, but it never has been. I am afraid that a responsible committee taking this seriously must tackle the problem. In 40 years, I have been before six or seven government committees urging that control be taken, but no steps have been taken. I have been before the law society three times, and all agree that control must be taken, but nothing has been done. The people of Canada are not being properly served, in my respectful submission.

Ms Seligman: In the American system, most processes require the applicant to be represented by a lawyer or by one of the groups that Mr. Green referenced, the non-profit types of organizations, or ministers - people who are doing it as a charitable contribution to their community.

Senator Di Nino: Mr. Green, based on your opening comment, I think it is appropriate to inform you that your reputation precedes you - or should I say, your good reputation precedes you?

Let me quickly seize on the issue raised by Senator Fairbairn. You said previously that licensing is a provincial issue. Yet you also said that - and I think I agree with you - we could deal with this issue through a recommendation to the minister, or some guarantee from the minister that she would include that in the regulations. That still requires, then, a further step by a provincial body to license. Is that not correct?

Mr. Green: Licensing of consultants should be done by the provincial authorities. The chairman asked the chairman of OPIC: "Why have you not tried to get legislation passed?" However, the act, under clause 167, allows anyone to appear before a tribunal. If you said that only barristers or solicitors or non-profit counsel could appear there, that would be fine. Then you need not license them. You need only define the words "other counsel."

Senator Di Nino: These folks would then be suggesting that we are putting them out of business.

Mr. Green: No, we are not suggesting that you put them out of business with respect to the employment authorizations or the immigration process for which the Web site describes a charge of US$10,000. They can do that work. Ms Sparling is a former immigration officer and is extremely competent. She knows that would work. Frankly, though, and with due respect to her, in dealing with the legalities of refugee cases, or removal orders, or the technical, heavy weight of law that has developed in the Federal Court on immigration, I would suggest that Mr. Waldman or Ms Seligman would be far more qualified than Ms Sparling, notwithstanding her knowledge of immigration, or even the deputy minister.

You are dealing with a complex body of law. The Immigration Appeal Board produces close to 75 judgments per day across Canada. Counsel must know those things and must keep up to date.

I teach law just to force myself to stay updated. It is a very complex issue today. I see what I call the "heart massage" cases in my office, people who have been represented by someone who claims to provide legal services in immigration, but has no background or experience in presenting or arguing the cases, which have been screwed up. In fact, the best thing that Immigration has going for them are the consultants who help remove people from Canada who would otherwise be here, perhaps.

As for the refugee determination scheme, many consultants are filing unarguable cases before the Immigration and Refugee Board. Nothing can be done about that because, as I told you, a six-year-old child can be a consultant. There is no control. The foreign consultants are filing applications to the Federal Court for judicial review in boilerplate form. There is no control over that. They are not lawyers.

Senator Di Nino: You have stated your case eloquently. Do you think clause 64 would withstand a Charter challenge?

Mr. Green: The practical implications of September 11 will force almost any judge to come down on the side of this kind of attitude. It may not, though. It certainly is arguable, but again, all Singh said is that if a hearing is granted, it must be a fair hearing.

"Serious criminality" is defined in the bill. If the Canadian Parliament determines that "serious criminality" means a two-year sentence, then that is it. It has been considered by the Parliament, and I am afraid that if I were arguing with the Justice department, I would be successful in upholding that proposed section. The social implications of that are frightening. I really mean that.

Senator Di Nino: You believe it would be challenged?

Ms Seligman: Absolutely.

Senator Di Nino: The issue of deportations has been called "a joke" and all kinds of other things. Some of the witnesses have truly heaped scorn on our record there. Does Bill C-11 contain anything, or should it contain something, by which we could rectify that problem?

Mr. Green: I read in the paper the other day that there are 27,000 unexecuted deportation orders. Let us put the issue of our border into perspective. When you come across the border, who is the first person you see? You see a customs officer, who wants to know what shopping you have done outside the country. He or she is concerned about the bottle of liquor or cigarettes you may have. That is the culture and the nature of our border. Customs officers have passport-swiping machines on their desks - which are Canadian technology, by the way. You are put in the computer. First, no one is checked out of Canada by swiping a passport on the way out. Second, our criminal organizations like CSIS, RCMP, or various policing agencies, do not feed customs all that information. Customs culture deals with drugs, importing and things like that. Immigration should be on the front line in Canada. It is in the United States. I travel about 200,000 miles a year. Every country that I have ever been to posts an immigration officer who checks me in. When I leave, he or she stamps my passport.

A visitor could come to Canada, stay for two years, leave and come back next week and we would have no knowledge. That is a matter of resources and common sense.

Senator Di Nino: The bill does not have to change; is that what you are saying?

Mr. Green: It does not have to change.

Senator Di Nino: Mr. Waldman said that we do not have to change Bill C-11 because all the tools that are required are in place to deal with national security. Do you agree with that?

Mr. Green: I agree with that.

Ms Seligman: In my opening comments, I quoted sections of the existing act that specifically deal with detention of people who the officers think are a risk.

Senator Di Nino: We do not require this legislation to put that provision in place. Is that correct?

Ms Seligman: That is correct.

Senator Cordy: I agree with Mr. Green that it is important that a committee such as this listen to all people interested in immigration and refugees. Our Senate committee has certainly endeavoured to do that.

You made comments about serious criminals, terrorists and so on, who are, under clause 64, denied the right to appeal. We examined the definition of a serious criminal. My understanding is that, under the current act, enforcement action can be taken against permanent residents convicted of an offence in Canada for which five years or more may be imposed and six months have indeed been imposed. Bill C-11 increases the threshold, so that 10 years may be imposed and at least two years have been imposed.

You said serious criminals and terrorists must be removed quickly because these are the cases that are on the front pages of the newspapers and on television and they do an injustice to legitimate immigrants coming into the country and to legitimate refugees who want a safe haven.

Mr. Green: I agree with you. There is provision under the existing Immigration Act to declare a criminal a danger. They do not have a right of appeal. The minister has that authority. With respect to terrorists, there is a brutal process of an ex parte hearing between the justice department and the Federal Court judge that excludes that. Terrorists cannot make a refugee claim and/or remain in Canada.

Some of the former panel said that these people are not removed quickly, but frankly it is a question of resources. They must have their day in court. Someone mentioned Mahmoud Mohammad, who has been here for a great deal of time. If Mahmoud Mohammad cannot get a lawyer and argue a case before a court in Canada, none of us can. I have no sympathy for him and what he has done, if he has done these things. The cliché that the wheels of justice grind slowly is a fact.

I can assure you, honourable senators, that the government is making every effort, with respect to terrorism and serious criminality, to remove those people as quickly as possible. In the totality of immigration, of 225,000 a year, I do not imagine there would be 20 or 30 of these people, if that, in a year. However, they are high profile and on the front pages and they disgrace the entire process. That troubles me, as a Canadian.

Senator Cordy: When we read about cases, such as the Mohammad situation that has been tied up in appeals for years, Canadians want reassurances that these types of things do not happen, particularly after September 11. People should not be in the country for 15 years, tied up in legalities. That does not do justice to the legitimate refugee claimant coming into the country.

Mr. Green: The proposed legislation provides for an eligibility hearing within a few days. The department has said that it does not have the resources to do that, and that is true.

When I did a report on the business immigration program for the Honourable Sergio Marchi, I came up with a brilliant idea: I thought that business immigration should be dealt with in a business-like way. There is no business acumen placed in the processing of refugees and immigrants. If you could start and finish a refugee application in six months and remove the individuals who have been refused, we would not have these problems. However, the government does not have the resources. That is the answer to the problem. It is that simple.

Senator Cordy: We have heard repeatedly that we must have more resources within the department.

Ms Seligman: Section 103 of the existing act speaks to these matters. I believe Mr. Mohammad has been detained for over two years. These people can be dealt with.

Senator Cordy: If a supposed refugee claimant is being deported and happens to be in a province where he or she cannot get Legal Aid counsel, what does the claimant do? How does he or she go about getting legal help?

Mr. Green: In Ontario they are entitled to Legal Aid. Mr. Drukarsh, who will be here later, is on the Legal Aid panel in Ontario and can inform you as to the process.

The Chairman: Thank you for coming.

Our next witnesses are from the office of the United Nations High Commissioner for Refugees, UNHCR; and the Canadian Council for Refugees.

Ms Judith Kumin, Representative in Canada, Office of the United Nations High Commissioner for Refugees: Honourable senators, thank you for having us here tonight. I appreciate very much the invitation to appear before this committee to participate in your review of Bill C-11.

As the chairman indicated, I represent the United Nations High Commissioner for Refugees here in Canada. I must warn you that, unlike the previous witnesses, I am not a Canadian lawyer. In fact, I am neither a lawyer nor a Canadian, so that will be a bit of a switch.

The UNHCR is the agency mandated by the General Assembly of the United Nations to provide international protection to refugees and to help governments to solve refugee problems.

More specifically, UNHCR is responsible for supervising the application of the 1951 convention relating to the status of refugees, which Canada and 140 other countries have ratified.

UNHCR is currently working in 120 countries around the world. We have had an office here in Ottawa since 1976.

Earlier this year, we presented quite detailed written comments on Bill C-11, which were addressed to the House of Commons standing committee that reviewed the bill. Those comments have been made available to this committee. I will not repeat now what we said then. I propose to be mercifully brief so we can move to questions. I will make a few remarks first about the context in which Bill C-11 is being debated.

UNHCR's interest in Bill C-11 concerns those provisions that relate to refugee protection in general and, more specifically, to Canada's obligation as a state party to the 1951 refugee convention. Needless to say, in the aftermath of the terrorist attacks of September 11, our task, which is to advocate for refugee rights, has become more difficult. The conundrum of refugee protection and immigration control, which is a difficult one in the best of times, has taken on a new acuity.

The challenge inherent in Bill C-11 is precisely to respond to today's migratory pressures and security concerns without closing the door on persons in need of protection. There are more persons in need of protection in the world today than ever before.

As your Prime Minister underlined in his statement to Parliament last week, asylum for the persecuted is a core value of Canadian society, and values should not be sacrificed under the pressure of urgent circumstances.

Moreover, the need for a commitment to humanitarian action, including in the form of asylum, is as great as ever. We were reminded of this last week when the UN Secretary-General and the heads of the UN's six humanitarian agencies launched an appeal for support for the millions of Afghans who are already refugees and for the many others on the road in search of safety.

One of the ways in which states can respond to the need of refugees for protection, and one of the ways in which Canada has traditionally responded, is through refugee resettlement programs - that is, organized programs that select refugees overseas for settlement in countries of asylum. The UNHCR appreciates very much Canada's longstanding commitment to refugee resettlement. We appreciate the fact that this is specifically reflected in the objectives of Bill C-11.

However, organized resettlement programs are not enough, and like most other countries, Canada must cope with the phenomenon of irregular migration. We live in a world in which borders between the movement of information, goods and capital are disappearing, so it is no surprise that growing numbers of people seek protection and opportunity outside their own countries.

Border control has taken on new importance since September 11, but it would be disingenuous not to recognize that barriers erected in response to irregular migration in general, and to security concerns in particular, are also hurdles for persons in search of protection.

Access to asylum for those who need it, and protection from being sent back to a country where one's life or liberty would be in danger, are the cornerstones of the international refugee protection regime. Both are enshrined in Article 14 of the Universal Declaration of Human Rights, which affirms that everyone has the right to seek and enjoy asylum from persecution.

Implementation of this basic human right requires effective national systems to distinguish persons in need of protection - that is, refugees - from those who are not in need of protection or who are not deserving of it. While the pressures generated by the recent catastrophe have precipitated debate and prompted reprioritization, care must be taken that this is not at the expense of persons in need of protection.

We think this will be more important in the context of the regulations, as they are drafted, than in the context of Bill C-11 itself and its implementation.

We must constantly remind ourselves that refugees are, by definition, not a threat, but the very people who are threatened. Therefore, any response to today's renewed security concerns must be grounded in principles of international law, of justice and of fairness.

Francisco Rico-Martinez, President, Canadian Council for Refugees: We have two parts to our presentation. I will make some introductory remarks, and then Ms Dench will make a more detailed presentation on Bill C-11. Thank you for the opportunity to make these brief comments.

The Canadian Council for Refugees is a national umbrella organization of approximately 170 members, all NGOs. Our mission calls for the promotion of the protection of refugees in Canada and around the world, and the settlement of refugees and immigrants in Canada. Of course, our focus is basically refugees who are in some way related to Canada. They are on their way to Canada, or are leaving here, or intend to get here somehow.

Before talking specifically about Bill C-11, we would like to make some comments on the context in which Bill C-11 is being discussed now - the events of September 11.

These are exceptionally difficult times for everyone. Let me be clear about why it is a difficult time for me personally. I am a refugee from El Salvador. I came from a situation of massive human rights violations and have been a victim of torture. I know what that means. In that way, I am tortured by everything that is happening in the United States. I am also tortured by what will happen as a reaction, a response, to these events, and the fact that many people will suffer what I suffered in the reality of El Salvador. That is our biggest concern.

It is a time of serious testing for us as a country. I say "as a country," even though I have only been a Canadian for the last four years. This is my country and I take it seriously. It is a test for our country. How will we respond to this situation? Will we live up to the best in our traditions, our values and our ideals - ideals that I have learned during my stay here in Canada? Will we succeed in avoiding responding to human rights violations by committing other human rights violations? My biggest concern is how we will respond to this.

We have here many calls for wide-ranging reforms of policies and practices in the areas of immigration and refugee protection. Some of what has been said publicly is irrational, opportunistic and feeds into existing xenophobia. Much of this talk also focuses on the refugee claimant system, even though refugee claimants make up a tiny percentage of the visitors and immigrants that enter Canada every year. The percentage is one tenth of 1 per cent.

The percentage of people who visit Canada for other reasons and stay is no more than 10 per cent. The issue is not in our immigration or refugee system. The issue is security at other levels. I do not know how we will seal our borders in the globalized environment in which we are living.

Canada has in place laws that prohibit admission to Canada of anyone likely to engage in terrorism. There is no need for stricter laws, as we have been saying at the Canadian Council for Refugees. On the contrary, both the current law and Bill C-11 throw too wide a net and catch people who in no way represent security threats to Canada.

As for changes in implementation of the law, we support any improvements in the ability of the authorities to catch those who are security risks. Everyone must be treated fairly, and we must avoid victimizing innocent immigrants and refugees, who are vulnerable communities. It is apparent to me now in every airport, because I speak English with an accent and I look like a Middle Eastern person. Those are the realities.

There are values that we hope and expect Canada will live up to. Even before September 11, our organization was deeply concerned about the bill before you today, and about the pressures of public opinion that can lead to bad laws. The thing that I learned in coming to Canada is, do not take decisions when you are under pressure. Do not take decisions when you are feeling hot. Do not take decisions when it is the middle of the winter and you want to go home. Calm down, take your time and then make a decision. We are now in a position where you must make a decision. We need time, in light of democracy, to take seriously what we will do. Is this going to change something? That is our question.

We have provided this committee with a summary of our brief to the House Standing Committee on Citizenship and Immigration. We have also provided a summary of this brief. We have revised it to reflect the changes adopted by the House. Unfortunately, it has not made much difference to our summary because the vast majority of our concerns went unaddressed by Parliament.

Now, let me pass the floor to Ms Dench so she can address principles that we wish to bring to the table on Bill C-11.

Ms Janet Dench, Executive Director, Canadian Council for Refugees: First, Canadian law should conform fully to international obligations. Bill C-11 fails this test in a number of ways. Access to the refugee determination system is denied to some claimants, including anyone who has made a claim in the past. This puts Canada at risk of violating our obligation under the refugee convention to not send refugees back to persecution. The convention against torture, according to which no one, without exception, shall be returned to torture, is also not fully respected, since this basic principle is ignored in Bill C-11.

As for the Convention on the Rights of the Child, Bill C-11 does mention at various points that the best interests of the child should be considered, but the exact standard of the convention is not respected; nor does Bill C-11 require all decisions respecting children be made with this consideration in mind.

Second, all people should be treated with basic fairness. In a wide range of areas, Bill C-11 undercuts the rights of refugees and immigrants to a fair process. One such process is the way in which people can be designated as a security risk. Another is the ease with which non-Canadians can be detained, that is, deprived of their fundamental right to liberty.

Third, Canadian traditions of humanitarianism need to be reflected and reinforced. An example of a measure that betrays those traditions is the power given to the government to set a fixed annual limit on the number of refugees who may be resettled in Canada. That would mean that for the first time since at least the Second World War, the government could limit the generosity of Canadians in responding to the needs of a few of the millions of refugees around the world seeking a permanent home.

Fourth, Canadian law should be gender sensitive. Despite the government's commitment in this regard, we do not see words being translated into action. Some provisions of Bill C-11 will have a disproportionately negative impact on women, for example, the bar on second refugee claims, since women frequently go unheard at a first hearing when only the husband's story is told.

Fifth, Canadian law should be analyzed with a view to anti-racism. We have a number of serious concerns in this regard on Bill C-11. For example, the wide discretionary powers given to immigration officers in many areas open the door to abuses targeting racial minorities. There are frequent complaints about perceived biases or racism by immigration officers, but there is no independent complaints mechanism to investigate them.

Senator Roche: I would like to put a question to Ms Kumin. I would not ordinarily ask a UN body or any one extra Canada what they think of Canadian legislation, but you are here, and you have either been summoned or invited as a witness and have given a brief. I listened to your opening presentation, and I just could not figure out whether UNHCR supports this bill or not. You drew our attention to certain deficiencies, or improvements, perhaps. I am not asking for a blanket endorsement, but I need to know where UNHCR is on this bill. Can you live with what the bill is saying about refugees?

Ms Kumin: You are right. It is not for a UN agency to pass judgment in that fashion on proposed legislation, but we have been associated with the bill and consulted by Citizenship and Immigration, including in the discussions on the regulations, so we have had much exchange on it.

I must say at the outset that the Canadian refugee determination procedure is already very highly regarded internationally, and we think that Bill C-11 has some quite positive aspects that will further strengthen that procedure. I can mention three of them specifically.

The bill specifically affirms Canada's obligations to refugees in clause 3. That is a positive aspect. The bill establishes an appeal on the merits within the Immigration and Refugee Board. That is something we have long advocated because we believe an appeal on the merits is an essential element of due process, and we welcome that. We also welcome a pre-risk assessment as a back-end safeguard, in particular, for any persons who were denied a refugee hearing at the front end of the process. We welcome the fact, as Ms Dench said, that the bill incorporates certain international obligations of Canada which were not previously incorporated in law, in particular, the consolidation of decision making based on refugee conventions and on the convention against torture. It is correct that incorporation of the convention against torture is incomplete from the point of view of international law.

The first area of concern that we set out in our comments and in our letter to you is the issue of automatic bars or statutory bars to a refugee hearing. We are also concerned, as is the CCR, that the statutory bars may cast too wide a net. Of course, looking at these bars from the perspective of the current debate about terrorists having access to refugee procedures, it is not evident what we are talking about. However, when one looks at the day-to-day claimants who may be caught in the net of statutory bars, it could be a woman making a second claim after a first claim fifteen years ago, then accompanied by a husband who is now deceased. It could also be someone barred from the refugee process because of "membership" in an organization deemed objectionable, where in fact the person has not had any active role in that organization, but is associated with it because of ethnicity or origin.

For example, organizations like the Oromo Liberation Front - most Ethiopians of Oromo origin are members, but they should not necessarily be excluded. We are worried about the statutory bars. Any exclusion from refugee protection, or from the process, should be based on an individualized determination and not on association or mere membership.

We are also concerned about the extent of the safeguard for those people who are denied a refugee hearing. If this goes ahead as planned, and fairly broad categories of people may be denied access to a refugee hearing, the pre-removal risk assessment done by Citizenship and Immigration becomes all the more important. Anyone who did not have a refugee hearing up front with the Immigration and Refugee Board should be heard in person at the level of the pre-removal risk assessment. We expressed some other concerns about the risk of parallel procedures developing, one done in the pre-removal risk assessment by Citizenship and Immigration, and one by the Immigration and Refugee Board.

We also expressed concerns about rights that refugees are entitled to in the 1951 refugee convention that are not fully recognized in Bill C-11. Those are the rights set out in articles 36, 27 and 28. They stipulate that refugees will be entitled to administrative assistance from their new country of asylum - in this case, Canada - to identity documents and to travel documents. In Canada, those rights are made contingent on landing, not on recognition as a refugee. That has created a problem for a number of people who are commonly known as "refugees in limbo." They have been recognized as convention refugees by the board, not yet landed, and during the interim period, do not enjoy the convention rights to which they are entitled.

The bill does not offer any particular approach to the problem of stateless persons in Canada. Stateless persons who are not refugees are often very much in limbo here, with no particular status and no way to resolve their problems. We had hoped that Bill C-11 might make some concrete proposals for dealing with that category of people.

Those are some of our concerns and some of the benefits that we see in the bill, which is an indirect way of answering your questions.

Senator Roche: Numerically speaking, your list of concerns exceeded the list of positive things that you ascribed to the bill, but I am unable to discern from a qualitative point of view where your weight comes down. I am not expert enough to discern the fine-tuning that you have been bringing forward. I would like to press you a little and ask the following: Do your concerns, in your mind and in the mind of UNHCR, for whom you are speaking, outweigh the positive, or does the positive outweigh the concerns? I do not want to put words in your mouth; I would just like to know where your mind is on this bill.

Ms Kumin: The concerns do not outweigh the positives. UNHCR can certainly live with this bill, but I must remind you that we are only looking at the specific provisions of the bill that deal with refugees, whereas many others have drawn your attention to concerns that relate to immigrants in general.

Senator Roche: I was questioning you only as to how it affects refugees, and you have answered my question.

Senator Di Nino: I wish to address a question to Ms Kumin first. Could you give us your thoughts on the "third safe country" concept?

Ms Kumin: Yes, with pleasure. Actually, I was UNHCR's representative in Germany for four years when this concept was born on the European scene, so I am familiar with it. UNHCR has a well-established position on the issue. In the European context, where this has come up most often, we have said that states are entitled to conclude bilateral or multilateral agreements on the sharing of responsibility for determining asylum requests. Our interest is that a person who is in search of protection should be able to have his or her claim heard somewhere in a full and fair procedure - not necessarily in country A, B or C, but somewhere. Countries may conclude agreements on responsibility sharing under certain conditions. One condition is that the decision on the return of a refugee claimant - what we call an asylum seeker - to a safe third country should be an individual decision that is made case by case and not in a blanket manner. Second, there should be an assurance that the person will be admitted to the refugee determination procedure in the country to which he or she is returned to ensure that the person will have a full and fair hearing. Furthermore, that hearing must be in accordance with international law standards. The person must be treated according to basic human rights standards during the procedure - that is, during the time when he or she is waiting for a decision - and must be able to have asylum in the full sense of the word; that is, all the rights set out in the 1951 refugee convention, if the person is found to be in need of protection. Safe third country agreements, as they are commonly known - I prefer the term "responsibility-sharing agreements" - are permissible. Many are concluded among states, but there are certain conditions that must be met.

Senator Di Nino: The concept assumes that the safe third country is a signatory to the 1951 convention, correct?

Ms Kumin: Yes, but that alone is not enough. There are many countries that have signed the 1951 convention but do not meet the conditions I set out. One must be careful not to assume that all countries are "safe third countries." Many signatory countries do not have an established national asylum procedure to which a claimant can be referred.

Senator Di Nino: You are saying, in effect, that for that system to work, there would have to be a return to a safe third country that has not only signed the convention, but also puts its policies into practice.

Ms Kumin: That is correct. That is the position we have taken in the European context. The country must agree to take the claimant back and to allow that person access to a procedure that meets minimum standards. We wish to avoid a kind of chain reaction whereby you are removed, for example, from Germany to Poland, and from Poland to Ukraine, and from Ukraine to Belarus, and from Belarus to Russia, and so on, and then all of sudden, you are back in Afghanistan. It is essential that the country to which the person is being removed agree to give the claimant access to a full and fair hearing procedure. The objective of the system is to have the need for protection heard.

Senator Di Nino: When you have situations such as today in Afghanistan, and have had in other countries in the past, where hordes of people are being displaced and are being treated as refugees for obvious reasons, does the UNHCR, either on its own or in conjunction with other agencies, do any screening at all of those folks? To use the example before us now, obviously, it appears that action will be taken in Afghanistan. Some of the bin Laden folks might certainly try to sneak through as refugees. Is there any opportunity or any means of doing some screening at that time, by either your organization or by organizations that would assist you?

Ms Kumin: It is an extremely relevant question, and it is one that has been asked many times in recent years. It got the most attention at the time of the exodus from Rwanda, after the genocide, after a whole population of civilians was taken hostage in Eastern Zaire.

The concern about combatants or other undesirable people mixed in with civilian refugee populations is genuine. We obviously are not a police force. We are not armed. We do not have the capacity to do the kind of screening that you are talking about ourselves. We try to do it together with the host government.

Interestingly enough, about three or four weeks ago, we did start such a screening program in Pakistan, together with authorities there. Joint screening teams were operating in the camp where the new arrivals were being placed. That has been suspended for the time being, simply because of concerns for the security of our own staff. The situation in the border areas is vulnerable, and it is difficult for us to be putting people in that situation. We do count on the host governments to screen out at least armed elements, or combatants, and not to mix them with the refugee population. It is extremely difficult when you are talking about a population the size of the Afghan refugee population in Pakistan, which is close to 2 million people. There is no way a handful of civilian humanitarian workers can screen a population of 2 million people.

[Translation]

Senator Pépin: Ms Dench, you said that the act needed to be gender sensitive. In What would be the impact of the current act, which not gender sensitive? How should we go about making changes?

Ms Dench: The government is required to carry out comparative gender analyses. It is not supposed to pass legislation that would have a negative impact on women or even on men, where this might occur. Unfortunately, it is women who are most often victims of discrimination.

However, the current act can be criticized in several respects because of unequal treatment of the sexes. However, we wanted to comment on the bill. We analyzed the bill and attempted to see what differential impacts there might be for women. We drew attention to several such differences. We would like to know how the government would interpret these in order to avoid negative consequences for women.

Senator Pépin: Could you give us an example?

Ms Dench: The trafficking of women is an example that is becoming more and more common. There is a great deal of international discussion of this issue. Increasingly in Canada, there is concern for women, children or even men who are exploited by traffickers or people who use women, children or men as slaves. For women, prostitution may often be involved. In the bill, there are punitive measures for people who exploit others. For women, there is absolutely nothing.

Let us take a hypothetical example. Suppose that the police find a house in which women are used as slaves. They are prostitutes from abroad and have no legal status in Canada. The police can arrest the people running the house, but what will happen with these women? As they have no legal status in Canada, there is a high probability that they will end up in a detention centre for immigrants and that they will be deported under the Immigration Act. There is nothing to allow immigration officers to say that these women ought not to be treated as illegal immigrants, but as victims instead. They will end up at a detention centre and will be deported without any attention being given to their particular situation.

Senator Pépin: I understand you very well. This is certainly something that happens. These sorts of things have been around for a number of years in several of our large cities. Thank you for having drawn our attention to this point.

[English]

Senator Fairbairn: You outline in your papers your views on various clauses of the bill. You comment, as have a number of other witnesses, that the term "terrorism" currently remains undefined in the proposed legislation. We must remember that they are working on the regulations, although it will take longer than we would like for that to be completed. I am wondering whether you have words that would be helpful in suggesting a definition.

Ms Kumin: I do not have a form that I could share with you now. There have been various attempts in our jurisdictions to come up with a workable definition of the term "terrorism," and you might want to look at some of the wording used in other jurisdictions and some of the United Nations resolutions pertaining to the fight against terrorism. Although they do not offer a single definition, they do offer some ideas or elements that could be usefully included.

Senator Fairbairn: It would be helpful if you sent those our way, just in case the department might have overlooked something.

Ms Dench: We have been concerned about this lack of definition. Moreover, although you made reference to the regulations, our understanding is that the government does not intend to offer any definition. There has been an inability to reach an international consensus on a definition. It is a very politicized term. Although there are some incidents, such as the recent events in New York and Washington, where probably everyone can agree that "terrorism" is the word that comes to mind, there are many other situations of which we are aware, through the experience of our members, where it is not so easy to distinguish.

The way the law is formulated, both now and in Bill C-11, all current and past members of the African National Congress are inadmissible to Canada on security grounds. Nelson Mandela, happily, is now an honorary Canadian citizen, but otherwise, if he came to our door, we would say, "You are inadmissible on security grounds." In many parts of the world, other organizations like the ANC fall into this terrorism definition.

Senator Fairbairn: That is one of the reasons I asked the question. It was brought to our attention early in these hearings. It was only two days ago, although it seems like two weeks.

Mr. Rico-Martinez: We have problems with how the person is designated as a terrorist in the Canadian legislation. You are excluded first because you are a terrorist, and you do not have a chance to make your case. The person does not have a chance to mention humanitarian grounds, or any other possible ground.

When a person goes before an adjudicator, whether or not the individual is a terrorist is discussed, but that is a limited process. Is this person a victim of torture? Does this person show all the elements of persecution? Does this person qualify for protection in other ways? Those issues are not discussed. They are excluded before other issues can be examined.

My recommendation is that we must discuss how we approach that person to determine a need for protection, first. Then, during that general discussion, any other subject can be added, such as questions to gain information on possible terrorist activities. In that general discussion about the need for protection, it is possible to balance the information and develop the characteristics of the individual.

I will give you an example. Hypothetically, there is a 14- or 16-year-old child before you who was forced to commit various acts at the age of 11. How would you deal with such a situation? The child was only 11 years old when the activity took place, but is now in Canada at the age of 14 or 16. Is that person in need of protection? Are you going to automatically exclude that person from protection because he was named in a previous case?

Senator Fairbairn: The conundrum of the word was raised earlier. We are continually asked about definition, but your point was well taken. For a period of time, Canada was trying to honour Mr. Mandela. One person's freedom fighter for justice can be another person's terrorist, and that issue came up at the time. Happily, the issue was addressed. It does underline the difficulty and the sensitivity of the issue. We would be grateful if you would pass on any information or material that would be helpful to those committee members who are interested in looking at that particular aspect.

Ms Dench: One suggestion we have made in the past is to make reference to the CSIS Act, which does not use "terrorism," but is focused on security risk. You might find suitable language there.

Mr. Rico-Martinez: Also, it may be helpful to define the level of proof that is needed in order to take action against someone charged with terrorism. Under our current law, if a document states that the organization was involved in kidnapping, then that is enough for the adjudicator to find against the person. The individual is excluded from protection, even though any number of documents and letters from the Canadian government might state that the organization is connected with a revolution and that the person is a freedom fighter. One line in a document would be enough to discredit a person.

The other way to handle it would be to change the standards of evidence required to accuse someone of something.

The Deputy Chairman: I thank all witnesses on behalf of the committee.

The Chairman: Senators, we will continue our discussion of Bill C-11. We have with us three lawyers: Mr. David Davis, who is essentially representing himself; Mr. Paul Copeland, who is a member of the Canadian Council of Criminal Defence Lawyers; and Marshall Drukarsh, whose partner, Mr. Green, was here earlier, and who is a member of the Criminal Trial Lawyers' Association.

Can one of you tell me the difference between the Canadian Council of Criminal Defence Lawyers and the Criminal Lawyers' Association? I guess the members of the Criminal Lawyers' Association can work both sides of the street, prosecution and defence, and the others work only on defence. If not, you can explain that to me.

We also have with us, from the Getting Landed Project, Ms Hamdi Mohamed and Ms Louise Slobodian.

May I say to the lawyers, there are two issues that we have heard about quite exhaustively from lawyers and lawyer organizations, notably clause 64 and, not quite as frequently, the transition problem. We really are aware of the clause 64 problem. I will tell you what about the committee's questions and, if you wish, ex cathedra remarks from various senators about the transition provision. We all recognize that typically in Canada, everything is grandfathered. Once someone is in a process, if that process changes half-way through, the committee would regard it as unfair to force people to switch, though they may be offered the option. The committee is very sympathetic to that issue, at least in terms of understanding the clause 64 problem.

Let me raise one question. I am not trying to pre-empt your opening statements, but I do not want repetition. Can I ask whoever was going to speak on clause 64 to deal with one question: whether the clause 64 problem can be dealt with by regulation, or whether it requires a change in the bill.

I understand that to solve the problem, it would be preferable to change the act. That is not my question. The question is whether it is legally feasible to solve the clause 64 problem through regulation.

With that preamble, which I assume has undercut the testimony of the three of you, we will begin.

Mr. David H. Davis: My submission will be that much shorter then. I think that is what you were after.

Thank you very much for inviting me here. It is a pleasure to appear before you.

One important issue is the leave to appeal provision. I am not sure how much you have heard on that. I was going to talk about transitional problems, but I can just as easily talk about the leave.

Let us use Manila as an example. It is one of the busiest visa posts in the world. A visa officer at that post quite often makes decisions under tremendous time constraints. That individual is working on hundreds, if not thousands, of files a year. Decisions must be made very quickly, and sometimes, unfortunately, not with a lot of forethought. If there is no right of appeal to the Federal Court on those decisions, it is our fear that many legitimate cases that ought to be heard will not be, because of the onus to prove to a judge, on the balance of probabilities, that there is a serious enough issue to be heard in the Federal Court. That is very difficult to establish, not to mention the time constraints involved in filing documentation. You will not necessarily have all of the computer notes that the visa officer has inputted because of the time constraints involved. It often takes some three to six months to get materials like that from a visa post abroad, purely because of the bureaucratic process that must be followed.

You are arguing a case on a leave application where you are relying basically on what little memory your client has of the interview process. Our concern is that you are creating a situation whereby these decisions by visa officers will go pretty well unrestricted. The minister may argue that imposing the leave requirement still makes a judicial process available to applicants, and that this will also overcome financial constraints, because it takes resources to create a file to be sent to the Federal Court.

Our response to that is that leave applications will still be filed. Visa officers will have to make some type of report to their bosses. Therefore, it will not necessarily eliminate the financial constraints that the minister herself has identified.

I ask that you take note of that issue when deliberating on your report back to the Senate.

Another very important issue is the ability of permanent residents to travel freely. I am not sure how much you have heard about the permanent resident card. I believe my colleague, Mr. Trister, made mention of that when he was wearing his Canadian Chamber of Commerce hat.

The Chairman: Like all lawyers, he was very flexible.

Mr. Davis: The permanent resident card can be a useful tool. The problem is that if an individual becomes a landed immigrant and is issued this permanent resident card, a judicial process must take place before that status can be revoked. We ask the committee to seriously question why it is that when you apply for an extension to this permanent resident card, you have to go through a process to decide whether or not you really are a permanent resident still.

Unless there is some real meaning to that, there is no necessity for that process. If you are going to have it, allow the individual to apply from out of the country. The way it is worded now in the proposed legislation, you have to return to Canada to do it.

Mr. Paul D. Copeland, Member, Canadian Council of Criminal Defence Lawyers: If I can answer your first question, in the brief that has been provided to you, there is a little background on the Canadian Council of Criminal Defence Lawyers on page 42, and there is an affidavit explaining what the Criminal Lawyers' Association is on page 43.

The Criminal Lawyers' Association was formed in 1971 in Ontario. It is an Ontario-only organization. At one point in my career, I was its vice-president for eight years. It currently has about 800 members.

The other is a national organization founded in 1992. It has about 2,000 members. The Criminal Lawyers' Association is part of that organization. Every member of the CLA is a member of the Canadian council.

On your second question, my view is that you cannot deal with clause 64 by regulation. I do not know what you are considering, but you cannot pass a regulation that is contrary to the provisions of the act. If you want an orderly, thoughtful process for dealing with a landed immigrant who has committed an offence and been sentenced to two years in jail, I believe the only possible one is through the Immigration Appeal Division of the Immigration and Refugee Board. I do not know what you are contemplating doing by regulation to try to get around that.

Perhaps I will make some comments on that at the end. I will try to be brief. I was here for Mr. Green's presentation. I am happy to say I have not been at the bar quite as long as he has. He gave you much of the background on this.

In our material, we have tried to provide some background information on how subclause 64(2) came to be in the bill. I also provided you with some background on how the danger opinions came about. Pre-1995, everyone ordered deported could go to the Immigration and Refugee Board and say, "Please let me stay." If you received two years in jail, you would not stand a great chance of success. I will talk about some of the statistics that I recently received from the Immigration and Refugee Board on that and some non-statistics I have from the minister's office.

In 1995 in Toronto, a young woman was shot at a restaurant called "Just Desserts." There was a huge outcry about that. Shortly afterwards, a police officer named Todd Baylis was killed, also in Toronto. I provided some of the background in that case on pages 23 to 32.

Of the four original Just Desserts defendants, three actually went to trial. Two were of Jamaican origin. O'Neil Grant was one of them. He had been ordered deported from Canada. He had been successful on the immigration appeal. He was on a stay of that deportation order at the time he was charged in the Just Desserts case. His most serious offence at the time he was ordered deported was a break and enter.

O'Neil Grant was ultimately acquitted in the Just Desserts trial, but it was one of the bases for issuing the danger opinion.

The other defendant was Clinton Gayle. Clinton Gayle had been ordered deported from Canada; had filed an appeal; had argued the appeal; had lost the appeal. He was kept in custody for a short time after that. They could not get travel documents from Jamaica. An adjudicator let him out of custody. Basically, the deal with Clinton Gayle was, you get your own travel documents and we will ship you when you do.

Neither of the failures in that case, assuming O'Neil Grant was a failure at all, were attributable to the Immigration Appeal Division process. The failure, certainly in Clinton Gayle's case, came in the enforcement branch of Immigration. The board did its job properly. Gayle had lost his appeal. If there had been proper execution of the deportation order, Clinton Gayle would not have been in Canada.

If you look at the transcripts of the trial that I brought with me - one of my partners represented Clinton Gayle - you will see the arguments before the court. One of the reasons Clinton Gayle decided to shoot was because he knew that if Todd Baylis arrested him, he was going back to Jamaica. As a result of that outcry, the danger opinions were brought in, and they have proved to be a disaster. The courts have found that the government is being unfair in the way they have dealt with the danger opinions. Courts have been overturning them regularly and it has become confusing and time consuming.

There is a letter at page 38 of the material. I wrote to the minister on June 20 after I appeared before the parliamentary committee. The minister explained, in a comment in the Toronto Star, that the department wants subclause 64(2) because at present, the process to remove such people can take several years. I thought the minister was mistaken about that. I asked her for some statistics that would prove it one way or another. Between June 20 and this Monday, she had not answered my letter.I did get an answer on Monday that states she does not have any statistics. Page 38 is my letter, and the reply from the minister is in the loose material before you because it arrived after the brief was prepared.

The minister advised me to write to the Immigration and Refugee Board. Fortunately, I had done that quite a while before. This Monday I got two separate answers from the board, and there are some statistics attached to that material. One of the things I wanted to know was how many people are ordered departed from Canada after they have been sentenced to two years jail time. No one knows. They cannot give me that breakdown on a year-by-year basis. The board did provide me with the statistics on removal orders for persons who were detained at Kingston Penitentiary. That means they are serving a federal sentence. Of the 186 cases, 150 were dismissed. That is found in the material from the board.

The other item from the board that is of some significance to me is the reference to processing times, and this is in their second letter. They show processing time from the date the appeal is filed to the date the order is mailed. They also show the processing time from the date the record is received, which Immigration must provide to the board, to the date that the order is mailed. The statistics are not all that helpful, but if you look at the cases that were never stayed, in 2001, they were completed in 10.6 months from the date the appeal was filed, and 9 months from the date they actually receive the record.

Most of the appeals, particularly for those serving longer sentences, are dealt with while they are still in custody. It is not a problem of the people being at liberty, it is not a problem of the people disappearing in some way or other, and certainly the board could process those appeals in a timely fashion. Therefore, I do not think the minister is correct in saying that these are taking a long time. The danger opinions are taking a long time.

One of the danger opinions in discussed on the front page of the National Post today. It is interesting that the National Post put it on the front page and the Globe and Mail put it in the Toronto section, which might give you an idea of who is pushing what issues.

The only other thing I wanted to comment on is something that you probably heard from Immigration officials who have come before this committee. Instead of granting someone an immigration appeal if they have been sentenced to two years, they will have some bureaucrat consider the equities of the case prior to recommending that an inquiry be held. That strikes me as exactly the wrong way to go. You will end up back in the danger-opinion type situation, where everyone will be litigating the unfairness of that process. I believe you can let the people appeal to the Immigration Appeal Division and you can deal with it fairly rapidly. I think most of the people will lose that appeal, but I favour that process because it is fair. People get to make their pitch to an independent tribunal and to participate in a process; therefore, they feel they have been dealt with fairly.

Mr. Marshall Drukarsh, Member, Criminal Lawyers' Association: Thank you for allowing me to appear before you today on behalf of the Criminal Lawyers' Association, which we have now distinguished from the other association with which we did a joint brief. The Criminal Lawyers' Association is 30 years old next month and has over 800 criminal defence lawyers practising. I have been practising for 27 years, spending 70 to 75 per cent of my time on immigration work and 25 per cent on criminal work. I have been the immigration law columnist in the Criminal Lawyers' Association newsletter for several years, and that is what brings me here.

I am proud and grateful that Canada has a chamber for sober second thought. We are here as a group because we truly believe that subclause 64(2) of Bill C-11 removes the requirement, and the opportunity, for even a sober first thought before the removal of any permanent resident who gets sentenced to 730 days or more.

Not only have you heard from many others on why subclause 64(2) is bad, you have said that you appreciate that. We do recognize that the 1992 Supreme Court decision in Chiarelli upheld the constitutionality of the statutory scheme, which was then extant, by which permanent residents can be deported for criminality. However, to answer a question that one of the senators put to my partner, Mendel Green, earlier today, I do not think that clause 64 in the current bill would withstand a constitutional challenge.

I say that because the key to Chiarelli was that there was an order to provide what the Constitution requires - fundamental justice and due process, or at least a process. This bill not only has no process, it cannot be remedied by regulation. I say that because obviously, many of the areas of the bill have a catch-all phrase at the end of the clause. This division has a catch-all phrase that says anything can be done by regulation.

Honourable senators will note that the specific provisions of clause 7 do not have that catch-all phrase. I most respectfully suggest that the bill will still bleed to death when it comes before the courts. The closest thing to a band-aid would be subclause 15(4), which indicates that an officer shall conduct an examination in accordance with instructions from the minister. Were there to be a regulation that required the minister to instruct officers to take into account the factors that are now taken into account by the Immigration Appeal Division, and which should be taken into account when danger opinions are being done, the factors most often recited are those in the case of Ribic. Those are, length of time in Canada, degree of support in Canada, hardship to the people who would be left behind, and several other significant factors. If officers were instructed to conduct their examinations in accordance with those factors when making their decisions, we would have something of a stop-gap, but it would not be enough.

I have a specific response to the senator who asked my senior associate about whether this could stand up. I brought with me a recent Federal Court of Canada decision. I would suggest, if you look at paragraph 10, you will see that the reason it has been accepted until now that danger opinions and things like that do not necessarily breach fundamental justice is because there was a process for making submissions and some form of review. Now it does not exist.

Wearing the hat of a criminal lawyer, I will go a little further. I do not know, from the notes I have seen of the testimony you have heard here, the extent to which people have talked to you about the negative impact on the criminal justice system if subclause 64(2) is allowed to stand. The first thing I should point out is that it is already being referred to in the courts, by the people who read my column in the Criminal Lawyers' Association newsletter and know something about immigration, as the "dead time clause."

It is a dead-time clause because in situations of hopelessness where landed immigrants are in jeopardy of a two-year sentence, they will shut down the case. They will stay in jail, do enough dead time to drag everything out, and then when that dead time is accounted for as being worth double, they will try to avoid a federal sentence. They will try to avoid being sentenced to the penitentiary. Everyone is delayed.

The next thing people should recognize is that there will be, on the other side of the coin, more trials. There is nothing to lose. It will take longer, but there is nothing to lose if you are faced with the prospect of a conviction. Perhaps because of your family, your roots in the community, or because you have been here since you were a kid, you try to reform yourself, and if everyone treats you nicely, you go before an appeal board, or at least try to convince the minister that you are not a danger and should be allowed to stay. Then fine, you do the practical thing: You carry on with your criminal processes. If the only thing that you face is a sentence of 730 days, doing the mandatory portion, and being driven to the airport, you will have a trial. We will have to budget for more of that.

On the other hand, we will have more bad pleas. We will have people pleading guilty in order to avoid the jeopardy. We will have circumstances where cases that deserve to be fought, because it is in the interest of everyone that people should be punished only where society has a reason to punish them, will not be. It is not in society's interest when people find it convenient to make a plea and possibly avoid a federal sentence.

We will have pleas of convenience. People are being pressured left, right and centre. It will not happen often, but often enough to hurt our system.

There will be soft sentences from judges who do not want to destroy families. There will be harsh sentences from judges who want a double penalty. There will be control problems inside the penitentiary. There will be nothing to lose. You will drive me to the airport unless I stand trial for stabbing the guy next to me before my sentence is up. There will be family breakdowns in the community.

Thank you for the opportunity to appear on the joint brief that our association has presented and for listening to me as long as you did.

Ms Louise Slobodian, Representative, The Getting Landed Project: Honourable senators, we are from a group called Citizens for Public Justice, representing a coalition called the Getting Landed Project. The coalition was formed a few years ago by over 85 groups concerned with refugees in limbo. We are speaking to refugee issues.

I am really hoping, during questions, that you will ask me to tell the story that I came to tell. However, I will jump ahead and answer a question that Senator Fairbairn asked of a previous panel about the definition of terrorism. Ms Mohamed will then speak about identity documents.

The story I was going to tell is one I know has been raised in this room, about two Kurdish men from Turkey. They are pro-Kurdish, as I think almost any Kurd would be in a country where a minority is repressed. They were accused of being members of the PKK organization, which is fairly described as a terrorist organization in some of its actions. They have both strenuously argued that they have never been members of such an organization, and the government has now recognized that in the case of one. In 1977, the two men made a complaint to CSIS. In 1988 and 1989, the Security Intelligence Review Committee, the civilian oversight committee of CSIS, held hearings into the complaint. The chair of the tribunal that heard the complaint was Bob Rae, the former premier of Ontario. His report came out on April 7, 2000. I do not have the full reports with me now, although I do have excerpts. I can get you the full reports, if that would be helpful.

Mr. Rae spoke about establishing guidelines. The complainants received expurgated reports. We do not have the full text. However, Mr. Rae exonerated the two men in all the accusations. He said that it came out that CSIS is currently using a wide-net definition, if a definition at all. That is why so many of us are arguing that some definition be established. This has been brought up repeatedly. The question has been raised of whether the definition needs to be in this bill. It does not need to be in the bill, but we do ask you to ensure it is somewhere and not left as a generality.

Mr. Rae said that CSIS did not present a single, unified, precise definition of terrorism and preferred to rely on "we know it when we see it" and the working relationships described previously, which is when he raised the case of Nelson Mandela.

Mr. Rae also said that the service's representatives must be expected to distinguish between varying degrees of support for the organization by the applicants, and that this should no longer be done in an ad hoc manner. He went on to say that if a sophisticated analysis is not provided to officials making assessments and a set of guidelines is not available, arbitrary decisions and errors will affect innocent people, as we believe has been the case this time.

Mr. Rae says that membership in such a suspect organization would not come easily and would involve extensive training and discipline. He also said that membership would be limited to a small cadre of dedicated ideologues with a traditional Leninist mode of organization, intensified by military discipline.

Mr. Rae clearly said that we are not trying to get rid of outlandish opinions, and that people have a right to hold varying opinions about and sympathies for various causes. He goes into that extensively. His work might be very helpful language for you.

Ms Hamdi Mohamed, Representative, The Getting Landed Project: Honourable senators, we will only deal with specific aspects of the bill and not cover all of it. Ms Slobodian has discussed security. I will talk about the requirement for identity documents.

When refugees come here, the IRB asks them to identify themselves. They go through the process. For them to be accepted as landed immigrants, they must supply what are called "satisfactory identity documents." That can be extremely difficult for many reasons, one of which is there is no infrastructure in the country they come from. Sometimes governments have persecuted them or they do not wish to be associated with that government, so they have not been able to acquire the identity documents.

As a result, thousands of refugees are in legal limbo and cannot get any papers. Both the CCR and UNHCR panels mentioned that 80 per cent of people with identity document problems are women and children. We are quite concerned about that.

The Undocumented Convention Refugee in Canada Class, or UCRCC, was supposed to remedy this situation. That is outlined in the document we provided.

I will not go into detail, but basically, people are supposed to wait between three and five years. That was reduced to three years. After that time, they are supposed to provide identity documents. We have witnessed, and have had reports from CIC, that people still do not have access to identity documents after three or five years. Their countries are broken up, or they have no access whatsoever to their home country. That has been quite problematic for us.

Article 27 of the Geneva Convention on the Status of Refugees explicitly states that signatory parties should issue identity documents to refugees. Canada is a signatory of that convention.

As such, Canada is obliged to issue identity documents. Our recommendation is to address that issue. Clause 31 of the bill says permanent residents will receive identity documents, but it does not give the same rights to refugees. We are saying, extend that to refugees.

Just to illustrate the difficulties a person in limbo faces, we have a fictionalized story about a family that went through war. They come to Canada, they establish themselves through the IRB, and after a year or so they go for their landed immigrant status. They cannot get it because they cannot produce the satisfactory identity documents. That family is in limbo. Their children cannot get access to post secondary education. They cannot have access to loans. Basically, every aspect of their lives is affected negatively, and that is quite a concern. I have been working in the settlement sector for many years and have come across thousands of people whose lives are simply in limbo. The system is supposed to take care of them, and that is a burden on taxpayers. People's mental health has been affected. We do not deal with family reunification specifically, but other groups have done so. People who do not have identity documents cannot sponsor their family members, and the list of problems goes on. I am just going to leave it by saying that people's lives are in limbo, and this bill does not address that issue in particular. We encourage the senators to look at that in detail.

The Chairman: Thank you.

Senator LeBreton: Mr. Copeland, during Mr. Green's testimony, I was thinking about the potential effect of this on our courts in terms of the sentencing requirement - two years less a day, two years, provincial and federal. Has anyone thought this through? Courts are already under great pressure. There already seems to be a wide range of sentencing between jurisdictions. Will it force lawyers into bargaining with the prosecutors, judges and the court system and take away from what the trial should be about, which is determining the details of the case and whether person is innocent or guilty?

Mr. Copeland: Absolutely. The closest analogy I can give is this: Under the old Narcotic Control Act, the mandatory minimum sentence for importing drugs into Canada was seven years. The prosecution would often proceed on a charge of possession for the purposes of trafficking, which had no minimum sentence. They would threaten to go ahead with the importing prosecution unless the client pleaded guilty to possession for the purposes of trafficking and, usually, agreed to a sentence well above the appropriate range for the amount of drugs involved. It was a choice between going to trial and getting seven years minimum, or pleading guilty and getting three years in jail, when a proper sentence would have been 18 months. You will find the same effect here. The Crown will say, "If you want to go to trial, we will ask for three years. If you want to plead guilty, we will ask for 12 months." It will affect the bargaining process in a huge way and will give a power to Crown attorneys that I would describe as akin to extortion.

Mr. Drukarsh: I note that when Joan Atkinson appeared before you, she tried to say, when speaking of serious crime, that they are not interested in the penny ante stuff. I would respectfully point to 98 offences in the Criminal Code that make one liable for a sentence of 10 years or more and where a two-year sentence is a possibility. Those offences include such heinous crimes as misusing computer information, and the standard, everyday possession, or theft, over $5,000. Many of those are offences - for example, an impaired driving causing bodily harm - for which people in some parts of Canada are very likely to get the two years. There are all kinds of situations where this will come into play. It is not just a hypothetical situation. You are right to have concerns about plea bargaining, the delays and the other sentencing factors of which we spoke.

Senator LeBreton: Do you not then face the danger of having two systems of justice? If a client falls within the foreign national category and happens to be a longstanding resident of the country, has children here and a business, do you then have to take a special interest in the sentencing? You may say, "Well, in terms of sending signals to the community, I will let the Canadian citizen who has no chance of being deported get the higher sentence, while I have to work extra hard to get a lower sentence for this particular person with a long-term interest in staying in the country." Will it not cause problems in that regard?

Mr. Copeland: I would like to think I do not make that type of decision in representing my clients, but there will be a problem in representing the foreign national who is subject to that. I have done some appeals of this type, although there are not that many. I acted for an 18-year-old who had been involved in a bank robbery. It was his first offence. He was sent to jail for three years, which was a fairly reasonable sentence, but he had been here since he was about six years old. He had a right to appeal, won it and has not been involved in any criminal activity since. Mr. Drukarsh spoke of impaired driving causing bodily harm or death. That is a horrible offence for the community. However, the degree of moral turpitude involved is usually low - a fairly law-abiding citizen who happens to get drunk one night and gets involved in something that is a disaster both for him and whoever is injured or killed. You may be throwing someone out of the country who has been here for 20 years and has a business and a family here.

Senator LeBreton: I have an interest in the drunk driving issue, since I had a daughter and a grandson killed by a drunk driver who had many, many convictions. Although I must say I agree with you. I have learned from meetings of MADD that there is no uniformity of sentencing from one jurisdiction to another. Having said that, we would like to think some of these people can be rehabilitated and should not necessarily be deported because they happen to have this conviction.

I am not a lawyer, and I am trying to determine what clause 44 says on the question of loss of status and removal. The word "may" is used on many occasions. How does that relate to clause 64?

Mr. Drukarsh: Essentially, the situation works this way. Today, if an individual is convicted of an offence, it comes to the attention of an Immigration officer. The officer does a brief investigation and writes a report. The report goes to a manager, who, in the name of the deputy minister, indicates whether there will be an inquiry. The Immigration officer, under today's law, "shall" write a report. It is not permissive. My friends in the enforcement branch of Immigration make much of the fact that now it is "may" write the report. If the report goes to the deputy minister's delegate today, the delegate can decide that there will be an inquiry. Then the adjudicator at the inquiry has no options. He or she must make the removal order, and unless the minister's delegate has done some research, made some inquiries and has formed a specific opinion that that person is a danger, the person goes to the appeal division, where the deportation order may be upheld or there may be a stay of execution of the order. Although I have not seen it in 27 years of acting for people in these circumstances, the appeal may be allowed out of hand. I should not say I have not seen it. There was somebody who was totally reformed 14 years after finishing the sentence. The deportation order was just quashed.

The difference is that under the new system, that first officer who conducts the inquiry - "Are you such and such a person? Are you a landed immigrant, not a citizen? Were you convicted of the offence?" - will now have the discretion to decide, "I may or I may not do a report."

The major fallacy in this is that if the individual has been sentenced to 729 days or less, you can hold the inquiry safely, have an appeal at the appeal division, have them put on terms and conditions, give them a stay, and tell them that for three years, they should continuing going to AA or continue with the psychiatric treatment or should this or that. Many people will then grow up. Many people, with that help, with that support in the community, with that extended probation, will straighten themselves out, to the benefit of themselves, their families and the community.

In the provisions of clause 64, it is all or nothing. With a 729-day sentence, I can be sent to the appeal division. With a 730-day sentence, they either follow clause 44 and decide to ignore the offence - they have told you about the number of cases they ignore - or you are totally out. They have taken out that social bridge that was working to help with reintegration into the communities. They have left you with an all-or-nothing situation.

Another very important factor here is that today, the decision-making process about whether to force people into an inquiry or not, whether to take enforcement action against them or not, is done on a practical basis. My partner would call it a "business case" basis. Will we win at the appeal board or not? Is the situation overwhelmingly one of compassionate, humanitarian considerations? Have they been here since infancy? Did they come from a country that no longer exists?

Senator LeBreton: Just to finish that off, what happens?

Mr. Drukarsh: Now they make a decision as to whether they are likely to win at the appeal. That is why they do not take a lot of cases through enforcement today. They are pointing to that as proof that it is safe to trust them with all or nothing in the future.

Senator Cordy: I asked this question of Mr. Green, and he deferred, I think, to Mr. Copeland.

Mr. Copeland: I thought he deferred to his partner.

Senator Cordy: Clause 167 says that a person appearing before the board must be represented by a barrister or solicitor, which sounds wonderful in theory. The reality is, though, that many refugee claimants do not have the money, are in the country and may be deported, and do not have access to legal aid. My understanding from Mr. Green is that in Ontario, you would in fact have access to legal aid. In Nova Scotia, which is my province, you would not. What would these refugee claimants do if the bill in fact says that they must be represented by a lawyer or solicitor?

Mr. Drukarsh: There are current situations where young offenders come before the courts and cannot get legal aid. A court orders that legal aid shall be granted to them. That is what happens in Ontario in the provincial court. If the legal aid system is not prepared to give a certificate to a young offender, saying, "Let dad support you because we think you still live at home," but dad will not, the courts can force it.

What will happen in this situation? I fear that we may find ourselves back in one of those awkward situations like when they last massively rewrote the Immigration Act. They introduced the concept of "refugee determination on the basis of credible hearings," and therefore, in order to try to meet their optimistically set time lines, the federal government was forced to fund special panels of legal aid counsel. There was a time during which legal aid schemes and plans in the provinces, where they existed, were directly funded by the federal government for immigration refugee determination processes. Special panels were created.

I do not think anyone wants to see that happen here. I think that a properly funded legal aid scheme throughout the country is a critical aspect of access to justice, and that is a whole other series of speeches I can give, but it is one reason why this is unenforceable.

Senator Cordy: Bill C-11 says that it should be a barrister, solicitor or other counsel. It is I who am suggesting it would have to be a barrister or solicitor.

Mr. Drukarsh: Let me say that, unfortunately, the term "counsel" has covered people who have done a service, and too many people who have done a disservice, to their clients. You will force the refugee appeal division into, by its rules, trying to regulate the conduct of those who appear before them, to do their best to weed out the outright frauds and crooks, and to get involved in the task of determining who shall and shall not appear before them.

Senator Cordy: One of our other witnesses has discussed that.

Mr. Drukarsh: It would be an administrative nightmare and a quagmire.

Mr. Copeland: I will not answer the question today, but you can talk to me afterwards. I was vice-chair of the legal aid committee of the law society for six years. I am still a bencher of the law society. We are dealing with issues of funding of legal aid by the federal government for immigration purposes.

Mr. Davis: I am a past criminal lawyer, and now I work exclusively in immigration. In Manitoba, legal aid is made available to persons who are the subject of immigration proceedings.

The Chairman: In Nova Scotia, it is not.

Senator Cordy: Ms Mohamed, I would like some clarification. You talked about status documents not going to refugees. I did not catch it all.

Ms Mohamed: Identity documents not going to refugees, yes.

Senator Cordy: In the House of Commons, the standing committee made an amendment to Bill C-11, with the agreement of all parties, that clarifies that convention refugees and protected persons shall be issued status documents.

Ms Slobodian: Our concern is that a document offered at the early stages now will act as a potential security measure, and we are not necessarily against that, but it will not necessarily act as a travel document. It will not have the authority of the government behind it to allow people who are not yet landed to travel.

Senator Pépin: They will not get the right paper?

Senator Cordy: My understanding is that all parties in the committee on the other side, in the House of Commons, were very pleased that this was in fact being given to, not only protected persons but to convention refugees, and that it would guarantee support for protected persons to obtain travel documents.

Ms Slobodian: Perhaps it is something of which we are not aware.

Senator Cordy: That was an amendment.

Senator Roche: Ms Slobodian, when you began your testimony this evening, you mentioned in your introduction that you are associated with Citizens for Public Justice?

Ms Slobodian: I am the communications coordinator, and Ms Mohamed is the refugee coordinator.

Senator Roche: For Citizens for Public Justice?

Ms Slobodian: That is right. We manage the Getting Landed Project. We are wearing several hats.

Senator Roche: The briefing notes I have state that you are here actually representing the Getting Landed Project. Is there any connection between Getting Landed and Citizens for Public Justice?

Ms Mohamed: Yes. Citizens for Public Justice manages the Getting Landed Project.

Senator Roche: Thank you.

Ms Slobodian: It is complicated, but we are the current staff people, so yes. We are not one and the same.

Senator Roche: Can it be said that your testimony here tonight on behalf of the Getting Landed Project is in fact a representation by Citizens for Public Justice? Does Citizens for Public Justice, which is a well-known organization, hold the positions that are espoused in your brief?

Ms Slobodian: Certainly, in that we are wearing two hats, and I am not backing away from what Ms Mohamed has said, but particularly because Citizens for Public Justice, separate from the Getting Landed Project, was a member of the coalition that you heard from yesterday and an active supporter of those two men accused of terrorism.

I prepared the media work when the CIRC reports came out. That was certainly part of our contribution, and the coalition is a founding member of the Getting Landed Project. Yes, Citizens for Public Justice stands behind this.

Senator Roche: If you are looking for the position of Citizens for Public Justice, you can find it in yesterday's brief from the Southern Ontario Sanctuary Coalition.

Ms Slobodian: I have some understanding of what was said, and certainly yes, we would end up with two levels of justice. Citizens for Public Justice is now deferring its refugee work to the Getting Landed Project.

The Chairman: I thank all of you for coming. To the three lawyers, one of my staff members is a lawyer, and we have a legal question about drafting a document that we would like you to look at. If you could take a look at a technical issue, we would appreciate it.

Our next and final witness tonight is Mayor Anne Mulvale of Oakville, Ontario. Ms Mulvale is here in her capacity as President of the Association of Municipalities of Ontario and as a member of the board of the Federation of Canadian Municipalities. Welcome, and thank you for coming.

Ms Ann Mulvale, Mayor, Town of Oakville, and President, Association of Municipalities of Ontario: Thank you for inviting us to participate and provide comment on Bill C-11.

This bill is important to not only Ontario communities, but to municipalities across Canada, which is why we have asked FCM to appear with us. Unfortunately, Mr. Jack Layton, President of FCM, could not join me. However, FCM is represented tonight by Mr. John Burrett, Acting Director, Social and Economic Policy; and Ms Pat Vanini, Director of Policy and Government Relations. We would like to provide you with our perspective on this proposed legislation and then we will answer your questions.

Who is FCM? The Federation of Canadian Municipalities is the national voice of municipal governments, and like our provincial associations, is dedicated to improving the quality of life in all communities by promoting strong, effective and accountable municipal government.

The Association of Municipalities of Ontario, AMO, is a member of FCM, and as president, I sit on the board of directors. AMO represents almost all of Ontario's 447 municipal governments and 98 per cent of its population. Together, we promote the value of municipal government as a vital and essential component of Canada's political system.

Mr. John Burrett, Acting Director, Social and Economic Policy, Canadian Federation of Municipalities: Before we address the bill and its relationship to municipal government, I wish to say that we understand the impetus for the legislative speed at which the bill is progressing. We will not comment on its relationship to national security because that is not our area of expertise.

Having said that, however, we do believe that our communities need to be protected from those who are not here for the good of the country or the good of local communities. All government officials need to work closer together to ensure the safety of Canadians. All three orders of government, and the respective law enforcement agencies, need to re-examine how they coordinate their efforts effectively. Bill C-11 has been drafted to reflect a number of principles that are valid and that we generally support. Several of the principles deserve special comments. This country and our communities have benefited from the diversity of people. To envision a Canada that continues to benefit from a multicultural approach is not a difficult vision to embrace. Respecting the multicultural character of Canada, now and in the future, is a priority.

We are particularly pleased that one of the principles of the bill is a commitment to work in cooperation with other orders of government to secure better recognition of the foreign credentials of permanent residents and their more rapid integration. Two points come to mind related to this principle.

First, we hope municipal government is considered as one of those orders referenced in this principle, because it is clear that municipal government is the government closest to the people, and the most accessible and logical place for services to support people, communities and their quality of life.

Why is this important? The 1996 census shows that 85 per cent of all immigrants live in Canada's 25 census metropolitan areas, with nearly three quarters living in three cities: Toronto, Vancouver and Montreal. In 1999, most immigrants continued to settle in these centres. Additionally, there are other cities that receive a high proportion of secondary migrants - immigrants, refugees and refugee claimants - migrating from initial destinations.

Second, we have a shortage across Canada of skilled workers in our health care system, in our schools, in the technology sector and in many other areas. If our cities are to compete globally, to sustain and expand our economic well-being, we need to develop multifaceted plans to deal with this shortage. We clearly support the principles of refugee protection, first, by saving lives and taking into account the best interests of children.

Having said that, however, we do need to look at how best to support the variety of forms of assistance that newcomers need. If we cannot deliver on those supports, whether it be housing, dental care, training or income assistance, then we are not doing justice to public policy or public service.

Ms Mulvale: I would like to state that newcomers to Ontario have played and will continue to play a significant role in the growth and prosperity of this province and Canada. Additionally, municipalities have welcomed and will continue to welcome newcomers and encourage their participation in all aspects of civil life, by removing barriers to services, information and employment for their benefit, and by responding to the special needs of their communities.

Municipal government is the order of government most accessible for program delivery. It makes the most sense to support immigrants and refugees at that level as they integrate into our communities.

While this placement of services makes the most sense, what is not as sensible is that a growing number of social and community health programs and costs are financed through the residential and industrial-commercial property tax base, particularly in Ontario.

Municipal government is the order of government at the bottom of the financial food chain. However, this should not and must not be used as the default funding mechanism for a federal or provincial policy program. There should not be a distinction or disconnect between the order of government that develops the policy and the one that pays to implement it.

Simply put, the financial component for the programs needed to support Canada's immigration policies should not be funded, in whole or in part, by the property tax base, but rather by the federal government. Why? The reason is that there is a flawed assumption that the property owner has the capacity to pay. In Ontario, property taxes are based on the market value of the property, not on personal or corporate income. Property taxes are paid with after-tax dollars. Those are more expensive dollars to the spender.

Property taxes were never meant to support social programs, but rather to support policing, fire services, and waste disposal. Federal tax dollars should be devoted to federal policies. We need to return to this basic premise and work with the federal government on a funding program for those social and community health programs that are needed to support immigrants and refugees.

Why is this of paramount importance to Ontario's municipalities? Let us look at some of the statistics - and I appreciate that all of you have the hard copies, so I will not read them.

In summary, today's immigrants are older on average and women make up the majority of immigrant seniors. Recent immigrants are less likely to speak either official language, as compared to immigrants who have lived in Canada for longer periods. Recent immigrants are somewhat less likely to be part of the paid workforce, as compared to their non-immigrant counterparts. Recent immigrants were more likely to be unemployed - 19 per cent as compared to earlier arriving counterparts at 9 per cent.

Ontario's share of immigrants is increasing faster than any of the other provinces. Ontario's cities are facing greater pressure because of the increased numbers of immigrants and the fact that recent immigrants are older, poorer, work less and speak French and English less frequently than previous immigrants. However, Ontario's $864 per immigrant arrival does not compare well with other provinces - for example, Quebec's $3,252 per immigrant arrival.

Ontario needs its fair share of settlement funding. To show you the impact in London, every additional 1,000 social assistance cases means close to $1.5 million in added costs. There are thousands of cases of immigrants receiving social assistance because of sponsorship breakdown and refugee claimants who need to be accommodated in emergency shelters. It is clear that Ontario municipalities are facing tremendously increased financial pressures to meet the social, economic and safety impacts of newcomers.

What is needed? - an understanding of the impact of immigrants and refugees on the local community and support for the local community's climate of welcome. We agree that newcomers bring social, cultural and economic benefit to our communities. They contribute to our social and ethno-racial diversity. They sustain a source of new and highly skilled human resources. They stimulate urban renewal. They strengthen the economy by embracing the country's global position. They open doors to new investment and new business.

With all these benefits come some challenges. One is that government, education, social, health, cultural and economic institutions have to adapt to the growing diversity in the population. Municipalities have developed and will continue to develop strategies to create a positive climate of welcome for newcomers. Municipalities have strengthened and will continue to strengthen respect among residents for diversity. The local community also has to respond to the health, educational and social service needs of refugees and immigrants who experience difficulties, especially during the initial period of settlement.

Integration into Canadian society means integration into a local community. The success of national immigration policies depends on programs and initiatives turning the potential benefits of immigration into tangible results. Many of the impacts occur at the local level. Municipalities and local service providers are more aware of how federal policies affect local communities. Our national immigration policies and funding should reflect this reality.

The federal government should support the funding of programs and initiatives for the successful integration of immigrants and refugees. Examples of programs and initiatives that will facilitate settlement include public awareness and education on the benefits of immigration, English as a second language training, access to schooling for newcomer children, equitable settlement services, affordable housing strategies, skills upgrades for foreign trades workers, and collaboration with provincial regulatory bodies and technical associations to accelerate the recognition and certification of foreign credentials.

We want to affirm the importance and value of this funding for immigrant and refugee programs and services. Bill C-11 should provide that the Government of Canada reimburse municipal governments for public health expenditures, social assistance, refugee hostel costs and social assistance provided to immigrants because of sponsorship breakdown.

Municipalities that are centres of secondary migration should also be reimbursed for the settlement costs of immigrants and refugees. Further, the Government of Canada should explicitly address and support federal-provincial agreements such as those relating to public health, social assistance and hostel costs for newcomers.

Our understanding is that refugee claimants are currently unable to access any of the federal government funding until they have been granted permanent resident status by the refugee determination process. That may now take, on average, 10 months. This puts pressure on municipalities and their community partners to address the financial needs of this group. This is not fair or reasonable.

It really is a matter of stopping the downloading. It will not serve federal policy on immigrants and refugees if municipal governments have to increase property taxes or cut other municipal services to finance the related increased costs. This is not how to support the federal immigration or refugee policy.

In conclusion, Thanksgiving is the thirty-second anniversary of my becoming an immigrant to this nation, and I am grateful.

Hon. Senators: Hear, hear!

Mr. Burrett: We must recognize the importance of coordination, collaboration and consultation between all orders of government. The municipal order of government understands that the federal government is responsible for immigrant and refugee policies, legislation, management of the refugee determination system, signing of international agreements and sharing some constitutional responsibilities with the provinces. However, it is in local communities that coordination and integration take place.

Many of the impacts of immigration policies occur at the local level. Municipal governments are most aware of how federal policy affects local communities. That is why the municipal order of government needs to be consulted and included in all policy and program development discussions.

It is our view that the Minister of Citizenship and Immigration should immediately establish a process to include the Federation of Canadian Municipalities in the development of the regulations related to this bill.

Ms Mulvale: We believe that our brief has been very succinct in putting the case for the tremendous growth in pressures that have been experienced. If those pressures are not addressed, they will become problematic for the policies of the federal government.

The Chairman: You have quoted numbers with regard to Ontario receiving 864 and Quebec 3,252. How is that amount calculated? Is it a formula? I assume that money goes to the province and not to the municipality, in spite of the fact that the municipality is supplying the services?

Ms Mulvale: We believe your conclusion on the second point is correct.

With respect to the first point, the person who did that research is not here tonight. We will gladly get back to you to ensure we answer you factually.

The Chairman: In any event, it is clearly not a uniform amount.

Ms Mulvale: That is right.

The Chairman: Indeed, it varies, in the case you quoted, by a ratio of roughly four to one.

Ms Mulvale: Yes.

The Chairman: The town of Oakville does not see any of that money?

Ms Mulvale: Not to my knowledge, and Mayor Hazel has spoken very articulately about that several times.

The Chairman: Goodness knows, she is articulate.

Senator Fairbairn: I want to be sure that the money given per immigrant is federal money.

Ms Mulvale: That is our understanding.

Senator Fairbairn: That is federal money going to the province that you do not see.

Ms Mulvale: We do not believe we see any of it. Yet we believe we are the program deliverer.

Senator Fairbairn: The programs that you set out at page 7 of your brief, would you deem them to be programs that the federal government should be supporting? Or do you think they should be jointly supported by both the federal and provincial governments?

Ms Mulvale: With respect, I would suggest that when immigrants such as myself become productive, they pay income tax, federally and provincially. We are not at all arguing that money invested in helping people reach their potential is not well spent. It is a good investment. We are merely saying that it is inappropriately placed on residential, industrial and commercial property taxpayers because of people's inability to pay. It can be counter-productive to a community's acceptance of new Canadians.

Senator Fairbairn: I am very conscious, in particular, of the list of necessities for newcomers such as second language training, schooling for kids and skills upgrading. I am sure that your community has people coming into literacy programs because they cannot access the skills upgrading.

Ms Mulvale: Exactly right. We know we need the increased workforce today. We know we need the infusion of human resources, energy and passion. We need to help release that as expeditiously as possible. Those programs are absolutely vital.

Senator Fairbairn: You are preaching to the converted.

The Chairman: Someone said that for a typical municipality, and I think they were talking about Ontario, something in the order of 50 per cent of the social service costs would be due to immigrants and refugees. Does anyone know for sure? My impression is that it is a staggering percentage relative to what one would expect.

Senator Di Nino: That is the case in certain communities.

The Chairman: Am I right on that?

Ms Mulvale: Ms Vanini may be able to put it in absolute terms.

Ms Pat Vanini, Director of Policy and Government Relations, Federation of Canadian Municipalities: The cost-sharing formula for social assistance with the province is such that municipalities will pay 20 per cent of the benefits, while the province pays 80 per cent. However, we cost share 50-50 on administration. As your caseload goes up, you have the added impact on the benefit, but you will also then have the added costs in administration, because there is a threshold as to how many cases a caseworker can handle.

The Chairman: Am I right that, for some municipalities, it is in the 40-50 per cent range? Are there municipalities like that?

Ms Vanini: The statistics in the report show that, in London, I believe, the number for every 1,000 added cases of social assistance is at 1.6. In Toronto, with the largest numbers, it is fairly significant as well, but that is the breakdown on the 80-20 and then the 50-50.

The Chairman: Whereas in a town the size of Oakville, partly because of the economic climate, the situation would be different?

Ms Vanini: It would be different from some of the larger urban centres, but you can see how my community neighbourhoods have developed in the waves of nationalities of the new Canadians.

Senator Di Nino: Your Worship, we invited you to attend to get your thoughts on the record, because I am not sure that the commentary that has been heard on this bill refers to the municipal level when it mentions other levels of government. It is good to have you here. Keep on pushing it and we will help you.

On the issue of quantification, you presented the number 864 for Ontario versus the Quebec number. Is that an annual number or a one-time amount?

Ms Mulvale: I believe it is a one-time number.

Senator Morin: That is the way it should be, mind you.

Ms Mulvale: Sure.

Senator Di Nino: You do not run a municipality, I guess.

Senator Morin: If it is 3,000 for Quebec and 800 for Ontario, that is the way it should be.

Senator Di Nino: We have more money than Quebec. You and I will continue this dialogue separately from our guests.

Your Worship, is there anyway to quantify the number we are talking about? Do you know?

Ms Mulvale: That is why we have respectfully asked to be at the table and recognized as an order of government. There is only one taxpayer, and one voter who elects at all three levels. If we are to create the best synergy and outcomes for ourselves as a nation, we need to come to grips with that. We can be a source of information because we are delivering services right where the rubber hits the road.

We are delighted that you have extended this courtesy to us today. We are really giving you material that shows we can be part of the solution here. We can get better, more efficient solutions, if we work together and recognize the needs and the cost flow-through. We are all part of building this nation.

Senator Di Nino: Can you provide us, if you do not have it today, with material on the magnitude, the scope, of this problem? I am thinking of the comments of someone who was mentioned by the Chair - my friend, Hazel McCallion. Actually, Hazel McCallion is everyone's friend. She is quite a lady. She has often spoken about this. Her comments indicate that the numbers are astronomical. We are talking about tens of millions of dollars annually.

Ms Mulvale: The costs fluctuate. If the country is in an economic slowdown or in a recession - I hate to use that "R" word - the costs have more immediate impact because there are fewer opportunities for refugee claimants and new Canadians, once cleared, to quickly merge into society. We could give you some historical perspective. I suggest you would want to look at the historical perspective over time to get an adequate snapshot, rather than just the status today, which is a different economic climate than the recession of the early 1990s.

Senator Di Nino: That would be very useful, Your Worship.

Would it also be correct to assume that some municipalities, such as Mississauga, would be asked to contribute a great deal more? Would the burden on them be much greater than, for the sake of argument, on one of the Northern Ontario cities, where there are different kinds of problems, but not those of dealing with refugees?

Ms Mulvale: I remember reading many years ago that, no matter where the point of entry is for a new Canadian, within a year, 50 per cent of them end up in the Greater Toronto area. We must acknowledge that. That is why funding should be on an adequate, per capita basis to let the money flow to where the needs are and to get the greatest synergy on the return on your investment.

We can help you with that, because there are all sorts of demographers who can give you that information. We can track the settlement patterns and we would be very pleased to do so.

Senator Di Nino: It would be useful if you could provide that for us.

The Chairman: That 50 per cent number has been around for a while. I gather that the contribution to the province is a one-time shot for initial settlement? If the initial settlement were in Nova Scotia, that province would get the money, even though, down the road, the pattern suggests the immigrants move to Toronto or Oakville and are on your payroll.

Ms Mulvale: That is why we made the point. We can decide whether the settlement amount is appropriate or whether it should be channelled to the communities where the programs are accessed. Simply because that is the way it has always been, does not mean it is the best way to do it. We are here because we partnered willingly and invited our colleagues from FCM. We are not here to advocate for Ontario alone.

The Chairman: We did not take it that way.

Ms Mulvale: With the greatest respect, we are not trying to take something away from a sister province. We are asking, as a nation, are we putting the money where the need is and thus seeing the proper return on the investment?

The Chairman: You are raising another key question. Is the property tax system - which by its nature is not progressive - the correct way to fund the cost? Is it possible for a municipality to refuse to take immigrants?

Ms Mulvale: That would be counter-productive.

The Chairman: I was not advocating it.

Ms Mulvale: Because of the cash crunch, some rhetoric has arisen that may not reflect the fabric or the values of our nation. That is really a cry of despair, because these are very difficult decisions to make.

The Chairman: You are amazingly articulate. Thank you for coming.

The committee adjourned.