CIMM Committee Meeting

STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION

COMITÉ PERMANENT DE LA CITOYENNETÉ ET DE L'IMMIGRATION

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, March 20, 2001

• 0909

[English]

The Chair (Mr. Joe Fontana (London North Centre, Lib.)): Good morning, colleagues. We'll be resuming our hearings on Bill C-11, an act respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted, or in danger.

This morning our first witnesses are from the Immigration and Refugee Board. We want to welcome Peter Showler, the chairperson, as well as Philip Palmer, the senior general counsel and director general of legislative implementation, and Glen Bailey, who is the director general of policy, planning, and research.

Peter, you pointed out that you appeared on Bill C-31, which was the predecessor to Bill C-11. I want to thank you very much for that, and I understand you've also given us some explanation of proposed IRB rules under the new Bill C-11. I think you produced that for the members.

• 0910

Mr. Peter Showler (Chairperson, Immigration and Refugee Board): Yes, I believe that has now been delivered to members of the committee.

The Chair: Thank you very much for giving us that information.

I know you have some speaking notes for your introductory remarks. I hope you might take about five or seven minutes to do so because we have an awful lot of questions for you. So welcome again, and thank you for your input so far and your hard work on the IRB.

Mr. Peter Showler: Thank you, Mr. Chair. You've already introduced my colleagues, but just to repeat, Mr. Palmer is senior legal counsel for the board and is responsible for the implementation of the bill at the board; Mr. Glen Bailey is the director for planning and research.

I do want to say that both these gentlemen have been very involved with the preparation of the bill from the point of view of the board, and that's why they're here with me today, to provide you with responses.

You have received written copies of my remarks. I will make quite abbreviated comments to you today, Mr. Chair, in order that you can ask as many questions as possible.

Since there are some new faces around the table, I'll make some very brief comments about the board in general simply to give you an outline of what we do. Then of course I want to refer to the legislation itself and to its impact on the board.

I'm sure you're all aware that the Immigration and Refugee Board is the largest independent quasi-judicial tribunal in Canada. The board reports to Parliament through the Minister of Citizenship and Immigration. We render approximately 50,000 decisions per year. The IRB consists of three separate divisions. They're quite separate tribunals, each with its own unique statutory mandate.

The board is judicially independent. To know what that means you should know that there are two aspects to judicial independence. First of all, there's institutional autonomy. What that means is that our responsibilities are carried out separately from the executive branch of government and from other federal departments. The decisions of the board are not subject to interference from anybody within the federal government. In addition, the second aspect of independence refers to our individual decision-makers, who render their decisions based solely on the evidence placed before them and on the law. Just as the IRB enjoys institutional autonomy, individual decision-makers are also free to decide cases without interference from anybody within the board, including the chairperson, or from any other party external to the proceedings.

[Translation]

In terms of the current organization, the IRB has slightly over 1,000 staff, including Governor-in-Council appointees and public servants. While our headquarter is located here, in the National Capital Region, we have structured our operations to include regional and district offices in Toronto, Montreal, Vancouver, Ottawa and Calgary. We also have a staff permanently located in Winnipeg and Niagara Falls.

In addition, the Board holds hearings in most major cities in Canada and in numerous detention facilities. Our largest division, the Convention Refugee Determination Division, determines refugee claims made within Canada. The 180 CRDD members are expected to finalize about 30,000 refugee claims this year.

The Adjudication Division conducts inquiries for people alleged to be inadmissible to or removable from Canada and holds detention reviews for those detained for immigration reasons. A total of 28 decision-makers expect to hold 3,600 inquiries and 11,000 detention reviews this year.

Our third division, the Immigration Appeal Division, hears appeals from refusals of sponsored applications for permanent residence by family members and appeals from removal orders applying to permanent residents and other individuals. Twenty-seven decision-makers are expected to finalize 4,400 appeals this year.

• 0915

[English]

The IRB does not select refugees from abroad or remove people from Canada. I mention that because those are two common misconceptions about the role of the board. Both these functions are the responsibility of the Department of Citizenship and Immigration.

I would now like to pass on to the IRB's role in drafting the legislation. The IRB has participated in every phase of various consultations involved in the drafting of both Bill C-31 and Bill C-11, beginning in 1996 with the Immigration Legislative Review Advisory Group and moving through the white paper exercise.

The IRB does not propose or initiate new legislation or regulatory policy, but that is not the role of an independent tribunal. We have advised the minister on the potential effects of proposed policies that either directly or indirectly affect the operation of the board. In addition, we have offered advice on the drafting of particular provisions of the bill that relate directly to the work of the board. Normally the board's comments have been restricted to matters of law, clarity of drafting, and feasibility of implementation. The minister has listened to the board's suggestions and has responded where recommendations were consistent with government policy.

Bill C-11, which is the final result, is in our view an improved version of the previous bill, Bill C-31. In particular, the new bill has been framed with greater clarity and precision, which will consequently contribute to greater ease of implementation.

I'll now move on to the impact of the bill on IRB operations. The bill both affirms and alters the role of the Immigration and Refugee Board. It clarifies the principal functions of each of the three divisions, reaffirming their authority to decide particular matters and, in some instances, modifying their jurisdictions.

The bill will have significant impact on virtually all aspects of IRB operations and will require significant preparation to ensure that it is effectively implemented. The most obvious and far-reaching changes relate to refugee protection. The present CRDD will become the refugee protection division, the RPD. Its jurisdiction will be expanded to consolidate protection grounds. There will be three grounds on which a person will be granted protection. The first is convention refugee status, which at this point we are already concerned with. The second is protection under the Convention Against Torture, the so-called CAT, and the third is protection from a risk to life or from a risk of cruel and unusual treatment or punishment.

In contrast to the present model, where claims are normally heard by two-member panels, the vast majority of protection decisions will be made by a single member. Single-member panels are a far more efficient means of determining claims. It is true that claimants will no longer enjoy the benefit of the doubt currently accorded them with two-member panels, and I think that should be noted. However, any perceived disadvantage is more than offset by the creation of the refugee appeal division, the RAD, where all refused claimants and the minister have a right of appeal on RPD decisions.

Appeals to the RAD will be in writing only and will be reviewed by experienced RPD decision-makers with the power to affirm the RPD decision, to set it aside and substitute their own decision, or to refer the matter back to the RPD for a rehearing on particular issues in exceptional cases where it might be necessary to hear additional evidence. We estimate the workload of the RAD will be about 8,000 to 9,000 cases per year, and we intend to equip the division with a corresponding level of staff and resources.

It is expected that the RAD will produce two different but complementary results. By reviewing individual RPD decisions on the merits, the RAD can efficiently remedy errors made by the RPD. That, if you will, is the safety net for the RPD. However, in addition the divisions will ensure consistency in refugee decision-making by developing coherent national jurisprudence in refugee law issues. As I said to this committee before, we don't see that as a benefit simply in that it will improve the quality of our decision-making. If there is more coherent, consistent jurisprudence, we think RPD decision-makers can actually make their decisions more quickly as well.

• 0920

These combined changes will make the overall protection system more efficient, while at the same time allowing the to maintain its commitment to rendering fair decisions.

[Translation]

The Adjudication Division would become the new Immigration Division. The role of this division is not fully appreciated but it is an essential part of Canada's immigration system. In particular, decisions relating to detention have become more important with the increasing pressures related to global migration. While the fundamental mandate of the division is unchanged, it is worth noting that positive amendments have been made. For example, the new bill clarifies the terms for detention at ports of entry and limits detention to those cases where it is clearly warranted in order to maintain the integrity of the system and to protect the safety of Canadians.

The Immigration Appeal Division will continue to hear appeals of removal orders and sponsorship refusals except the right of appeal would be eliminated for certain individuals including serious criminals, members of organized crime and those who pose a security risk. Under Bill C-11, the division will now hear appeals from those who have lost permanent resident status for failing to meet Canadian residency requirements.

[English]

Finally, the implementation of Bill C-11 will touch every person and system at the IRB. We will need to redraft our rules, modify procedures and forms, review our reference and educational tools, and rewrite our manuals and handbooks. All this needs to be done while we continue to hear cases.

While this sounds like a daunting task, and I think it is, let me assure you that the IRB is well positioned to support and implement the new legislation. We are confident that we will continue to render decisions fairly, efficiently, and in accordance with the law—which is our essential mission. We will do that now, during the transition period, and under any new legislation adopted by Parliament.

Thank you very much for your attention. All three of us will be pleased to receive your questions.

The Chair: Thank you, Peter.

Let me just ask you a technical question. When I referred to the cover sheet of the explanation of the proposed IRB rules, those rules were essentially for Bill C-31. I know the cover sheet says Bill C-11, so just let me ask, based on the changes made in Bill C-11 from Bill C-31, is this document still relevant in terms of the rules and explanations, or will something else come to bring us up to date on what Bill C-11 does?

Mr. Peter Showler: It's similar, but another document will be forwarded to you. Of course, Bill C-11 does have changes and there are going to be some modifications.

The Chair: Okay. Perhaps we'll get to the questions now. But there may be questions on how different Bill C-11 is from Bill C-31 and on what changes you anticipate. Perhaps you could cover that off a little bit more.

Mr. Peter Showler: Do you want to begin with that?

The Chair: No, I'll leave it to my good colleagues to ask the questions.

We'll start with Inky.

Mr. Inky Mark (Dauphin—Swan River, Canadian Alliance): Thank you, Mr. Chair.

First let me welcome our witnesses. It's good to see Peter here again.

As we all know, immigration has played a huge role in this country's past. I was told recently that over 45 members of Parliament are actually Canadians by choice. That shows how important immigration is—and not only in the House of Commons. Certainly, legislators understand that our first priority is to make sure genuine refugees are afforded protection.

But, as you know, the way the media has been reporting the latest developments over the last few years, it appears that asylum-seekers get all the news. That's unfortunate, because when we look at the numbers they really amount to only a small part—even though there are 15,000 reported immigrants or visitors with deportation orders or warrants for their deportation. That's not good news either.

• 0925

The other concern Canadians have, as I'm certainly aware from reading the minutes of the last meeting, is the loss of permanent status.

So my first question is this. I agree some of the processes you've put in place probably will help to alleviate a lot of the problems, but how will this bill improve the quality of your staff? I think you and I have talked about staffing in the past. Will this bill give you the authority to improve the quality of staff so that the job can be done?

Secondly, as the chair has asked, how much difference is there between this bill and the old bill, C-31? Will the changes help you to resolve the issues of asylum-seeking and the time factor? We always hear about the time problems involved in processing refugees, whether genuine refugees or not-so-genuine ones. They get caught up in the system and stay forever, it appears—the process takes years and years.

That's what I'd like you to respond to.

Mr. Peter Showler: Certainly. I'd be pleased to.

First, in regard to the quality of the staff, there is really no direct relationship between this bill and the staff. Sir, I'm not quite sure if you're referring to the decision-makers or the administrative staff. We have about 220 decision-makers out of a total staff of more than a thousand. But nothing in the bill relates directly to either the administrative staff or the Governor in Council appointees.

With regard to any differences of the time factor in Bill C-31, I've already referred to the principal one. In two of the divisions—adjudication and the immigration appeal division—it wouldn't make any difference, but there would be a significant difference in the new refugee protection division. There is a vast difference in terms of speed between a two-member hearing and a one-member hearing.

You must understand that frequently cases are adjourned, perhaps due to inadequate evidence or other problems. Well, with two members who don't always sit together, you can imagine that you can very quickly get logjams in your scheduling. There are tremendous complexities. This is something we struggle with on a daily basis.

Much of that is avoided when we have single members. This also allows a single member to take responsibility for a file right from the beginning and continue with it. So with single members, we're expecting a great deal of efficiency and more rapid decision-making.

Of course, as you're aware, we have been asked, what about the refugee appeal division? Time is being added on there. But our objective is to decide refugee appeal cases within a three-month period. Because it is a paper process, because we expect it to be centralized, we think we're going to be able to do it much more quickly and efficiently than we would the first-level hearings, which involve live hearings.

So there's a significant difference between them. We think the total result will end up the same as before. But as I've already indicated, we think we will have a better-quality decision—because we'll have had two goes, two kicks, at the can. There's not only been the original decision, but also a clear, authoritative, experienced review of that decision.

Mr. Inky Mark: Would you support including a reference in the act to making appointments to the board more merit-based, more transparent?

Mr. Peter Showler: I have no opinion on that subject, as you can appreciate. I am the head of an independent tribunal. That's a matter of government policy that's inappropriate for me to comment on. Sorry.

The Chair: Perhaps, Peter, in answer to that very important question, you could just briefly tell us—especially the new members—about the extensive time spent on making sure the people who come to you are trained properly, with some knowledge of the seriousness of the decisions they have to make.

• 0930

If you would take a couple of minutes—I won't take it from Inky's time.

Mr. Peter Showler: Certainly, I would be pleased to, particularly on the matter of whether or not appointments are merit-based.

It's important for the committee to understand that over the last four or five years there have been significant changes to the appointment process. These haven't been included in the statute, but they have been quite significant. To give you an idea of how the process works and what the results are, I reviewed our statistics for last year.

I think you're aware that there is a minister's advisory committee. The board is the secretariat for that committee and responsible for it, although it is the minister's committee. I sit as a member of that committee.

I remind you that Governor in Council appointees are staff who become members of the immigration appeal division or the RPD, which would currently be the convention refugee determination division. Our adjudicators are public servants, and they're in a different division.

When candidates apply to be members of the Immigration and Refugee Board, there are some fundamental requirements. They require a university education or workplace experience. The minister has repeatedly said that the board really wants to allow opportunity for a wide range of Canadians to apply to be members.

The selection process begins with a written examination—which I can tell you is quite demanding. Approximately 40% of the candidates do not succeed in passing that first step, the written examination.

After that there is an intensive interview, conducted by a member of the minister's advisory committee along with an assisting consultant. It's a detailed, organized interview, looking for predetermined qualities and characteristics we think essential in a good decision-maker.

Then there's a review of two professional references, and a discussion of each application by the minister's advisory committee—which then makes recommendations to the minister.

Last year, of over 200 applicants, two-thirds were eliminated from the process between the written test and the recommendations of the committee. Only a third or so of those candidates were referred to the minister.

Once they're referred to the minister, of course, cabinet decides which candidates will actually be appointed to the board. They remain eligible for two years. If they wish to continue after that, they have to reapply.

The second part of your question, Mr. Chair, is training. Because the Government of Canada has decided that not all persons appointed to the board are required to have legal training, we feel it's extremely important for the board to have a very extensive and thorough training program. Again, this has been augmented in the past year and a half.

Now, a member receives three weeks of initial training. Only the National Parole Board has a training program this long. I should tell you—and I'm sorry if it sounds as though I'm bragging—that our training programs are now used by the International Association of Refugee Law Judges throughout the world. I and the director general of our training program, who is also the chair of the international association's training committee, are really responsible for training refugee decision-makers throughout the world.

I'll be very quick about this. I think it's important for you to know that new members get follow-up training for the first six months. Every member is assigned a team of trainers: a training coach, who's a lawyer, and his member-manager. New members are followed very closely until we're fully satisfied they're actually able to do the job.

This is important, of course, because we are moving to single-member hearings, and it's critical that every member be fully trained before sitting.

The Chair: Thank you, Peter. That was extremely helpful.

A follow-up question, Inky?

Mr. Inky Mark: I just have a short comment.

I applaud you for all your hard work in improving the system. I think you make a very good point: what you've done should be identified, either in the act, or in the regulations, or in your policy. Is what you've just told us to be found anywhere?

Mr. Peter Showler: No. It is not in any regulation or rules of the board. Although it's in place, it does not have any statutory legislative basis.

• 0935

The Chair: Gurmant, you get about three or four minutes of Inky's time.

I appreciate the fact that you're sharing it, Inky.

Mr. Gurmant Grewal (Surrey Central, Canadian Alliance): Thank you, Mr. Chairman, and I do join my colleague in welcoming the board members as our witnesses.

I hear from prospective refugees who are applying, or refugee applicants, that there is a lot of frustration when dealing with those who are actually lawyers and those who are unregulated non-legal consultants. Is the board doing anything about limiting the responsibilities of the non-legal consultants? Is it making the system more efficient so that refugee applicants get professional advice from the people who are handling their claims? I think most of the case preparation is done by those handlers, and when the non-legal advisers or consultants give them advice, it's unprofessional. They charge more money, and it sometimes leads to the misfortune of those refugees in the form of rejection of their cases.

Mr. Peter Showler: It's an excellent question, and obviously a very knowledgeable question, too. It's a matter of concern to the board as well.

In the way in which it currently works, if legal counsel, a lawyer, is representing a person, a complaint can be made to the law society, of course. But as I'm sure you're aware, there is no province...there's a court case currently before the Supreme Court of Canada that has raised some question about who has the mandate to regulate people who are basically serving in a professional paralegal function.

The board is in the course right now of drafting a code of conduct. That code of conduct would apply to paralegals exactly as it would apply to legal counsel or anyone else. We will have a linkage between that code of conduct and the new rules that we are drafting, but I hope to actually implement the code of conduct prior to this legislation. One does not depend upon the other. It's a matter of serious concern to us, and we will have a code of conduct whereby we will not only be able to define appropriate conduct and appropriate comportment within the hearing room, but also enforce appropriate remedies.

I should point out to you, though, that the hand of the board will be considerably strengthened by the new legislation, which expressly gives the chair the power to draft a code of conduct to control hearing room conduct. Currently, it's by implication, and the case law has been somewhat dubious as to the degree to which we have authority to do it. We will receive that express authority within the new act.

Mr. Gurmant Grewal: Can you show me something in the new legislation with respect to this? I don't see it there.

Mr. Peter Showler: Yes, it is there. I'll ask Mr. Palmer to pull out the particular provision.

Mr. Gurmant Grewal: Okay, thank you.

Mr. Peter Showler: It comes within the powers of the chairperson under clause 159.

The Chair: I believe it's referred to in paragraph 161(1)(b), Gurmant.

Mr. Gurmant Grewal: Okay, 161(1)(b).

The Chair: I should point out that that's a very important question, Gurmant, and I think you may want to pose that same question to a number of our other witnesses. I would agree with you totally, and it may very well be a strong recommendation of this committee that we want to make sure that those people who are advising those who seek refugee status are getting the best representation possible from people who know how the system works, not ones who pretend to know how the system works and charge those poor refugees an awful lot of money.

So we'll review that 161(1)(b).

I'll go to the Liberal side. I think I have Gurbax waiting.

Mr. Gurbax Malhi (Bramalea—Gore—Malton—Springdale, Lib.): Thank you, Mr. Chairman.

Is it correct that Bill C-11 would give the chairperson of the board more control over the way in which members perform their duties? What is the reason, and what do they want to achieve out of that?

Mr. Peter Showler: More power over how the members actually perform their duties?

Mr. Gurbax Malhi: They are going to give more power to the chairperson of the board, is that right?

Mr. Peter Showler: No, there's actually no over-control of how they perform their duties. As the chief operating officer of the board, the chair already has the authority to require that they perform their duties in accord with a code of conduct, which the board members already have, but there are no express changes to those authorities as such.

There are some differences in the sense that the chair will now have the authority to assign members to be coordinating members who are the member-managers in the board. Currently, those coordinating members are appointed by the Governor in Council, so for the board managers at the first level, the authority to make those appointments as such now will rest with the chairperson. But in terms of the conduct of the members themselves, there's no greater or lesser authority than there already is.

• 0940

Mr. Palmer, is there anything you want to add to that?

Mr. Philip Palmer (Senior General Counsel and Director General of Legislative Implementation, Legislative Implementation Project Office, Immigration and Refugee Board): I think the general authority of the chair has not changed with respect to members. The members are, as you know, independent decision-makers.

There are a number of changes in the legislation that make a few things more explicit in terms of the chair's role in managing the board as a quasi-judicial institution. It makes explicit his power to schedule cases and matters of that nature.

The other enhancement of his authority is with respect to precedential cases. The chair now has the power to designate certain cases as jurisprudential guides to members, but they stand on the same footing as the current guidelines issued by the chairperson, which is to say that they must be taken account of by members, they must be considered by members, but they do not bind the member to make a particular decision in a particular case. That will continue to be the case.

Mr. Gurbax Malhi: What percentage of hearings do the ministers' representatives participate in?

The Chair: Peter, I believe the question refers to the minister's representatives at the hearings. In how many cases do they participate in the actual hearings?

Mr. Peter Showler: I don't know that number off the top of my head. I'll ask Mr. Bailey if he has some idea.

Mr. Glen Bailey (Director General, Policy, Planning and Research, Immigration and Refugee Board): I don't have a number, but I would say the number is very small. Also, there are two ways for the minister's representatives to do that. They can submit documentation to or participate orally at the hearings.

Mr. Peter Showler: Perhaps I can clarify that, because of course the minister's representatives appear before all three divisions. So when we talk about intervention, that only occurs ordinarily within the convention refugee division. Within the other two divisions, they appear regularly as parties before our decision-makers, so it's a quite different situation. Mr. Bailey is correct that it is really quite rare, but there are two forms of intervention.

Frequently what they will do is deliver documents to be entered as evidence, but it is much less rare that they actually attend as parties before the board. I can tell you my understanding is that it is primarily a matter of resources for the minister as to when they are able to do that.

I would like to say that they are often very welcome. Particularly with difficult cases, particularly where there are exclusion issues involved, we certainly welcome the participation of the minister simply because we'll have more assurance that all the appropriate evidence will be brought before the decision-maker.

Mr. Gurbax Malhi: Is there much impact when the minister intervenes in cases?

Mr. Peter Showler: Yes, there is significant impact. First of all, the entire nature of the proceeding changes from an inquisitorial one, which is the way in which a refugee division ordinarily operates, to an adversarial one. The inquisitorial powers, which continue under the new legislation, are ones where the role of the decision-maker is much more one of simply trying to learn all the information or evidence that's available in order to render a decision.

In the adversarial model, which is much closer to our ordinary court or legal models, there is somewhat of a contest between counsel for the claimant and counsel for the minister. They take adversarial positions, and of course then cross-examination would occur.

As well, it is very important that, simply, the minister has access to all forms of information, particularly involving criminal and security issues, that we would not ordinarily have access to. So their role is actually quite crucial.

Mr. Gurbax Malhi: As you have mentioned, there are not too many representatives from the minister at the current time. What if their intervention increases? What is the board going to do in the future?

Mr. Glen Bailey: As the chair just said, the issue is really the resources that are available to the minister in the number of occasions they are able to do so. If there were a significant increase in their intervention rate, that would have an impact, for example, on processing time. As the chair was indicating, it would also have an impact on bringing full elements of evidence and dealing with difficult questions. So there's a qualitative benefit, and there's also a potential, if the volume of interventions is high, to have an impact on the processing time.

• 0945

We have anticipated with the new legislation that there would be a modest increase in the number of interventions, and that was reflected in some resourcing decisions that were taken for both the Department of Citizenship and Immigration and the board. But again I would stress that this still remains a fairly modest number, and we do not anticipate that it would affect our overall ability to have decisions rendered quickly and fairly.

The Chair: Thank you.

For the remaining time of the first round, Anita, you have ten minutes.

Ms. Anita Neville (Winnipeg South Centre, Lib.): Thank you. I guess in part my questions have been answered, but I have to preface my comments by saying I'm new to this process and very much on the learning curve.

What struck me in your presentation was the emphasis on efficiency. That word comes up over and over again, and to some extent it sets off an alarm bell for me. In regard to the removal of the two-person panel in the interests of efficiency, I'm not convinced. Tell me more. Why is that so important, and how does the two-person panel restrict the timeliness of hearing applications?

Mr. Peter Showler: Certainly.

First of all, I regret to hear that “efficiency” came up so often, because I think it came up in the context of single-member decisions, because that's the primary benefit there. I wish to assure you that not only is fairness as important to this board, and certainly to me, but if there is a choice between efficiency and fairness, fairness will always win out. In my view, it is critically important that, because they all include matters that are of great importance to the person concerned, in any decision of any of the three divisions, fairness always comes first.

Apart from that, in explaining the efficiencies, I would like to say, of the two-member panels we have now, there is a provision for dissent, and if there is dissent between the two panel members, the positive decision will take precedence over the second decision. But less than 1% of our decisions are decided by way of dissent. Virtually over 99% of our refugee decisions currently are unanimous.

I want to be fair, because that masks an issue, and I say this having been a decision-maker for six years. What occurs is a consultation process between the two members throughout the decision-making process, from defining the issues, to defining the important questions, to coming up with their answer at the end. So there is a kind of working it out together. It would be correct that if people made their decisions completely separately, not talking to each other, you'd probably have a higher rate of dissent than 1%, but it is still less than 1%.

To give you a sense right now, I can assure you that over 50% of our current decisions are being made by way of a single member. Under the current legislation, we can make single-member decisions with the consent of the claimant. There are so many instances where counsel and claimants are comfortable with the quality of our decision-makers as single decision-makers. They often find they have a shorter and more direct hearing. When you have two members, you can actually have confusions that would not arise with a single member. So if you have a single member who knows the country well, understands the law, and understands the issues, more than 50% of counsel are prepared to go by way of a single member already.

Ms. Anita Neville: Thank you.

The Chair: I'll come back to you in the next round, Anita.

Gurmant, you have one question, and then we'll go to Madeleine, Judy, and John, whether or not they have questions.

Mr. Gurmant Grewal: Thank you, Mr. Chairman. According to clause 158 in the bill, the Governor in Council appointments that were already made in the past, particularly for the position of executive director of the board, will now be changed. The position will become part of the public service in the future. Does this indicate that the previous positions that were appointed by Governor in Council were not based on merit, or they were not considering the level of competence? Is that the reason this is being done?

• 0950

Mr. Peter Showler: I think both current and past executive directors of the board would be quite concerned to hear that it was not a merit-based appointment.

I can tell you that all of the appointees to the position, including the present incumbent, have been extremely senior civil servants who have already been at the ADM level within government. It was simply seen as inappropriate that the nature of the role of the executive director, consistent with other tribunals as well, has ordinarily been that of a public servant, and it simply was more appropriate to revert to that position.

Mr. Inky Mark: I would just ask a short question.

In the document you handed out this morning, it says the board has a meaningful advisory role to play in terms of the development of legislative improvement to Canada's immigration system. On that point I ask you again, would you not consider it a positive move to put in a clause that deals with application, scrutiny, and training for IRB members?

Mr. Peter Showler: If I may say, Mr. Mark, you've taken me slightly out of context because I clarified what the nature of that role was. The nature of that role was not to initiate or develop policy as such; it's to advise on the impact of particular policies or proposals by the government. We went further than that. We did advise on the law because on certain areas of law, quite frankly, the counsel within the board are the experts on the law. We've advised on that in terms of drafting what's more effective. But we do not, and it is inappropriate for an independent tribunal, tell the government what kinds of laws they should make.

The Chair: Thank you, Peter.

Inky, as you know, this committee in its report on the refugee determination system made some strong recommendations. I would agree with Peter that it's up to this committee and the government to essentially lay down certain rules.

Our previous report strongly recommended additional resources to the IRB, but also that the merit-based system would be the primary system in order to appoint people at that level. I think if we want to reiterate that in our recommendations as we review the bill, that would be fine.

I'll go now to Madeleine of the Bloc.

[Translation]

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): Thank you, Mr. Chairman. Good morning, gentlemen.

I have a number of questions to ask. So I'll string them together because I'm not sure that I'll have the time to finish by 10:15. In your presentation, you said that you were consulted for the drafting of the current bill. You indicated that some of your recommendations or suggestions had not been accepted because suggestions were accepted to the extent that they were consistent with government policy. I'd like to know which recommendations you thought were useful but were not accepted.

That gives you some time to think.

Secondly, you spoke, with great conviction, of the Board's independence. Moreover, there are changes in Bill C-11 affecting everything related to the Refugee Appeal Division in particular. If I use the figures that you gave, nearly 30% of the cases heard every year will be appealed; between 8,000 and 9,000 out of a total of 30,000, that's almost 30%. This represents a lot of people.

I know that you'll tell me that you don't want to answer this, but I'll take a chance anyway. Given that appointments to the Board are basically political appointments, which doesn't exclude competency—everyone agrees—but doesn't necessarily ensure it, and despite the training that you explained to us, which seems interesting to me, would you not be more comfortable with an appointment process for Board members that was not political? For example, just imagine that a single person is going to determine the finding in an appeal procedure, and this person will not even see the individual whose case is being decided.

Mistakes have been made in the past, and others will be made in the future, but we want to ensure there are as few as possible. I'd like to hear what you have to say about this, if, of course, I manage to get you to say something.

• 0955

Thirdly, in the current act, the immigration officer has many powers, including the power to detain. Do you not think this might be risky?

I worked as a nurse for many years and I taught for many years. In spite of all my good intentions, I occasionally did not take the best course of action. I imagine that everyone here, around the table, can understand that. Is it not somewhat disturbing that immigration officers can act like kings in their little booths?

Those are my questions, and now it's your turn.

Mr. Peter Showler: Thank you very much for your questions. I'll answer your second question first and I will then give the floor to Mr. Palmer, who will answer your first question. Lastly, we'll answer your third question regarding powers.

Now, with regard to the second question, it is, frankly, almost the same question as the one asked by Mr. Mark. Both systems would suit me, but I am not the one to decide between them. You are correct in saying that it is a political decision. We are responsible for ensuring that all the candidates are competent. When I say "we", I mean the ministerial committee. The committee ensures that all candidates are competent, but the decision then lies with Cabinet, of course.

I will turn the floor over to Mr. Palmer, who will answer your first question.

Mr. Philip Palmer: First, I'd like to say that it's perhaps not appropriate to disclose the recommendations made and discussions held by the minister and her agents. However, it is important to point out that, the last time we appeared here to discuss the bill, we highlighted three key points regarding our Board, and in each of the three cases, we are now satisfied with the amendments made to the bill by the minister and her agents. Consequently, I think that this is an example of the progress made by working with the department and the minister.

[English]

The Chair: Philip, for the benefit of the members, can you go over those three areas where you were able to convince the minister of improvements so we can make note of them? You may have saved us some time.

Mr. Philip Palmer: I hope so.

We had a few concerns. The first was with respect to the powers of the refugee appeal division and, more particularly, with the binding impact of its decisions. The department responded to those concerns. We're now satisfied that the decisions of the RAD are appropriately binding upon members of both the RPD and single-member decision-makers of the RAD itself.

The second area of concern was with respect to the detention provisions. We had considerable concerns at the time that the powers of members of the immigration division, as it will become, did not have sufficient clarity to ensure both the scope of their jurisdiction—the factors they could take into account on deciding whether to release or maintain a detention—and their powers to impose terms and conditions upon release were sufficiently clear. Those have been clarified, and we are now quite satisfied with that.

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The Chair: You'll have to excuse me for a moment; hold on to that thought.

Peter, did you have anything further on Madeleine's questions? If not I'll move—

[Translation]

Mr. Peter Showler: The third question had to do with the powers of detention granted to immigration officers. From the point of view of immigration officers, it's something else. I will repeat, it has to be brought before the panel within 48 hours. The basis for decisions and the powers of detention have been clarified, they are more precise. There's no difference between this bill and the act. There is no additional ground for detaining individuals under the act. The terms have only been clarified.

The Chair: Thank you.

[English]

Judy.

Ms. Judy Wasylycia-Leis (Winnipeg North Centre, NDP): Thank you, Mr. Chairperson.

It's been suggested by many groups involved in the immigration and refugee field that Bill C-11, although it makes some important changes from the past, is still very much about protecting Canadians from the world and keeping out possible negative individuals and forces, as opposed to carrying on Canada's tradition for humanitarian, open-door immigration and refugee policies. I'd like to know from Peter how he sees his role and the role of the board in that scenario. Do you see yourself as policing and protecting Canadians or as ensuring that all possible opportunities are pursued for those people who have legitimate reason to come to Canada?

Mr. Peter Showler: I see the role of the board as neither of those two options. The role of the board, under the law, is to make decisions that are clear, well reasoned, and efficient, but primarily well reasoned and fair. It's important to understand that. I'm stepping outside my role simply as the head of the tribunal, but I can comment, as I've taught immigration law for many years at university. I can say, relatively speaking, that Canada's system, certainly its determination system, is far superior to any of the systems available anywhere else in the world. We actually go further to ensure that we make fair decisions. So certainly, in respect of refugees, my primary concern, as I indicated to the previous member, is that those decisions are fair. When I say fair, that means they also have to be accurate. It is tremendously important that we know the facts, we understand the facts, and that we make well-reasoned decisions.

At the same time, we cannot avoid the fact that there is significant illegal immigration. So it certainly is the duty of the decision-maker to look at all of the facts. If you have someone presenting what appears to be a false story, presenting false documents, it is clearly the obligation of that decision-maker to make the appropriate decision. I would say, however, that ultimately, accurate decisions defend the refugee protection system for the genuine refugees.

Ms. Judy Wasylycia-Leis: I appreciate the answer, and I appreciate the role of the board in administering the legislation, no matter what it is. It does raise the question, given the kind of presentation we had last week from the Canadian Bar Association, that this bill is filled with draconian powers of arrest and is not in keeping with Canada's tradition with regard to immigration and refugees. Can you give us any help in assessing those comments and knowing how to improve the bill, so that you can in fact do your job according to the spirit of Canada's record and history in this area?

Mr. Peter Showler: Once again, it's inappropriate for me to be commenting on the powers of other participants within the wider immigration system, such as immigration officers. But it is correct to say there are certain persons who, under the present act, have access to the immigration appeal division or to the convention refugee division who will not have access to those determination systems under the new bill. The minister's been quite clear and straightforward about that. There will be persons who are involved with organized crime, serious criminality, and a commission of certain international human rights abuses, who will no longer have access to the board. That is clear, and it's clearly stated in the bill.

• 1005

It's not appropriate for me to say whether or not it's correct. It's a policy decision, and it's based upon information and expertise that does not lie within the board. They will have knowledge about security concerns, security issues, that are not the concern or the immediate jurisdiction of the board in terms of discussion. But it is correct that there will be people who no longer have access to our board but who previously would have access to our decisions.

The Chair: John.

Mr. John Herron (Fundy—Royal, PC): I just want to follow on a couple of tracks of questioning. First off, is the problem with written appeals as opposed to oral appeals?

Prior to the IRB having been established in 1985, we just reviewed written documentation and files and determined people's livelihood, future, or even life and death situations, by using a file. What I'm a little apprehensive about is the fact that it's quite conceivable that by the time the file has been prepared the first time around, the family situation of that individual may have altered. Maybe even the situation in the applicant's originating home may have altered as well. There could be a higher risk than when the file was actually initially prepared. How can you instil a little bit of confidence in the fact that we're going to be doing this only from reading paper, as opposed to the right of an actual oral appeal?

Mr. Peter Showler: We're talking about 1989. Before 1989, when the board was formed, at one time refugee decisions were made by the Refugee Status Advisory Committee based only on paper. That was what brought on the decision by the Supreme Court in Singh, and it caused the inception of the refugee division in the beginning.

The big difference, though, sir, is that there is a full live hearing that occurs before the refugee protection division. The requirement for a live hearing—which is absolutely essential to the hearing of refugee information, there is no doubt about that—already occurs. The refugee appeal division, first of all, is reviewing a full hearing, including all of the testimony that lies there.

In terms of timing and changes of circumstance, we expect those appeals will be filed within thirty days of the first RPD decision. There are going to be very rare circumstances in which you're going to have a change in circumstance for the refugee who has been in Canada the whole time in between the first-level decision and the second-level decision.

Mr. John Herron: How will you address that very rare circumstance? What is the margin of error at which it's acceptable to be wrong?

Mr. Peter Showler: That would eventually be addressed not before the refugee appeal division, but by the agent of the minister who is making the pre-removal decision. Assuming that the refugee appeal division affirms a negative decision—the person is then determined to be still not a refugee—they still have the right to seek judicial review of those two decisions before the Federal Court. They go through that process, in which they seek leave. If leave isn't granted, or if leave is granted and the court does not overturn the previous decisions, it's at that point that they become removable from the country.

Before they're removed, there is the third-stage or, if you will, the fourth-stage process. There will be an application before what will be known as a PRA officer, a pre-removal assessment officer. That officer, who is an immigration officer, will specifically look at changes of circumstance. That does arise.

One other thing I want to point out to you—and this is why I mentioned it in my opening remarks—is that I have seen the criticisms from the Canadian Council of Refugees in regard to oral hearings. I want to remind you that when our refugee appeal decision-makers review the testimony, and when their view is that there isn't adequate evidence before them to make a decision—for example, when they're going to overturn a decision, which means they'd ordinarily make a positive finding but there isn't evidence to do so—they can always refer it back to the refugee protection division for decision.

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I would like to make the point to the committee that it is absolutely imperative that, if it were necessary to hear live evidence in that refugee appeal division, we could not do that as a centralized agency. You would have to have essentially a complete repetition of what you had at the first-level hearing. You're not going to get those decisions made in three or four months; they're going to take at least the same period of time as the first-level hearing. You're going to need a much longer period of time, and it's going to be extremely expensive to do so.

Mr. John Herron: One could argue that, given your role, your mandate, and even the title of the institution itself, it's your team that should be the experts on situations surrounding refugees. Why wouldn't your board be the natural entity to actually make the determination on risk removal?

Mr. Peter Showler: In some senses, we are the natural ones to do that in the sense that the expertise for making refugee-based decisions clearly lies within the board. However, remember that for the majority of persons who are being removed, at that stage they've already gone through the three decision-making phases I've described.

This was an issue that arose as a possibility simply because in order to remove somebody from Canada, often it has to be done on a quite prompt basis. I'm sure you're aware, and I'm sure the immigration department has described to you, that although this is their area of responsibility, it's often a matter of being able to find the appropriate travel documents. The department is given very brief windows of opportunity. In those circumstances, the board is not able to respond in that rapid a manner in order to be able to hold the kinds of hearings that would be necessary in order for individuals to be removed. We're not structured in a way in which we can have very quick, short hearings in any way in Canada prior to removal, so in that sense we're not a natural.

The Chair: John McCallum.

Mr. John McCallum (Markham, Lib.): Thank you.

I should begin, as Anita did, by saying I'm new. My concerns were similar to hers in the sense of this trade-off between fairness and efficiency. The concept of the one-person panel made me a little bit nervous, but then I thought about the judicial system, in which you have one judge, subject to appeal. So maybe it's the same in that sense. We're obviously gaining efficiency with the one-person panels, but do we to some extent lose fairness as the price for that gained efficiency? If so, to what extent? That's my question to you.

Mr. Peter Showler: Certainly, I'm uncomfortable with the expression “lose fairness”. I think I'm very confident that our single decision-makers are able to make fair decisions. We have devoted a great deal of resources toward their training to ensure that they're able to do so. They also have the assistance of refugee claim officers who are in the hearing room as well. Of course, they have access to the full panoply of legal services, of which Mr. Palmer is the director, if they require advice. At any time, they can adjourn a hearing to ask for advice on particular matters. So there are a great number of institutional supports for those decision-makers.

At the same time, it is my view that each member has to be completely competent to make determinations in the hearing room. Quite frankly, I view it as my responsibility as a chairperson that if I were not of the view that a member was able to do that, we would undertake further training until they were able to do so, and they would not be in a hearing room as a single member.

You should be aware that the legislation provides for three-member hearings. It is anticipated that all members under the new legislation will go through a training phase in which they will sit on three-member panels—the three-member panels will be making those decisions—until the board is fully satisfied that they're able to fly solo.

Mr. John McCallum: My second and final question has to do with a presentation made at our last meeting by Amnesty International. They were arguing that under this bill it would be much more likely that people might be returned to a country where there was torture. My question to you is, given that it seems the pre-removal risk assessment is done by the ministry and that, as was pointed out earlier, the expertise on conditions in various countries might lie with you, what's your reaction to the Amnesty claim that we're running an enhanced risk of returning people to countries of torture under this bill?

• 1015

Mr. Peter Showler: The expertise currently resides within the board, but that is not to say it cannot reside elsewhere as well, or that the ministry isn't capable of having well-trained decision-makers in the pre-removal process. That can arise.

The current legislation operates in such a way that it is quite candid and direct—and the minister has been direct on this—that there is a balancing going on in terms of removal of certain persons who would ordinarily have been excluded or who have been excluded because of certain acts they've committed, whether they're human rights abuses against others or acts of severe criminality. There is a balancing of the interests of Canada in terms of security, as opposed to what is the potential harm against that person. The board has no expertise whatsoever in conducting those kinds of balancing exercises. Quite frankly, it would be quite harmful to the board if the board entered into that kind of process, which is extremely different from doing the kinds of clear, straightforward refugee determinations we do now.

The Chair: Jerry, and then Yolande and Anita.

Mr. Jerry Pickard (Chatham—Kent Essex, Lib.): Thank you, Mr. Chairman.

I was interested to note a comment you made when you discussed the three grounds under which people need to be granted protection. The first convention on refugee status was mentioned, and you said you already have concerns about that. Those weren't in the notes, but those were the comments you made. What are those concerns, and what recommendations have you made to change or improve the concerns you have?

Mr. Peter Showler: I don't think—

The Chair: The answers have to start getting a little shorter, too, Peter, if you could.

Mr. Peter Showler: Well, this can be very short. I don't recall saying I have a concern about the present convention refugee definition, because I don't. I think it's just fine. I just said that's now the first of three grounds, and it is the basis of the current legislation upon which we make decisions.

Mr. Jerry Pickard: Okay, I thought I heard that, but the record will probably show....

The second area in which I had some questions had to do with the paralegals. I find I often end up with real problems as a member of Parliament in terms of complaints about a lot of people who are giving recommendations, giving directions. Those directions are oftentimes not in the best interests of the client, but those people giving them are very much people who are securing from various communities a lot of people who are under examination. They're trying to make pretty large dollars; I know huge dollars are paid. As the last resort, people come to my office after they feel true justice hasn't been served. That's often the case in the offices of many members of Parliament, when you're at the last stage, and it may not be the best circumstance. What are the qualifications required, and are you making recommendations?

I believe you talked about a code of conduct that was important. I certainly gather that, but I think there needs to be more than just a code of conduct. I think we have to have qualifications testing, something put in place to make sure they're not part of a fly-by-night advisory group, but are very well-educated, well-trained, and well-implemented people who can serve the community in the fairest, utmost way.

Mr. Peter Showler: I completely share your concerns. The problem is how you do that.

As I already indicated, the Mangat decision, which is before the Supreme Court, addresses the issue of whose jurisdiction it is in terms of regulating paralegals. Is it provincial or is it federal jurisdiction?

We are going to bring in a code of conduct, but there are limitations on what a specific tribunal can do. It's the problem of having someone appear before a judge saying they want this person to represent them. It's very difficult for us to go very far in questioning who that person is, certainly prior to some form of misconduct or inadequate conduct before the board. But certainly we fully share your concerns and certainly we would favour regulation if it were brought about by the appropriate agency.

• 1020

Mr. Jerry Pickard: I think a recommendation you might make, and we should push it through either one level or the other level of government, is that something be in place to make sure Canadians are protected. I think it is the law rather than the judge that has to make the decision.

Mr. Peter Showler: You should know that it's a concern in Ontario. There is the Cory report based upon investigating the role of paralegals in Ontario, and this board did make a submission to the Cory report operating along the lines you suggest.

The Chair: Thank you.

Anita, one question, or Yolande.

Ms. Yolande Thibeault (Saint-Lambert, Lib.): Thank you, Joe.

[Translation]

Thank you for coming, gentlemen. You have spoken very eloquently about the process for appointing the Board members who work with you. Will the same process be used to appoint people to the Refugee Appeal Division, or will the selection process be different for the individuals who will be working in this division?

Mr. Peter Showler: No. We use the same procedure to select candidates for what could be called the two types of member positions. In addition, as you know, under the new legislation, at least 10% of the Appeal Division members must be lawyers.

Ms. Yolande Thibeault: Thank you.

[English]

The Chair: Peter, I have one question for you. Maybe I should say right from the outset that after we've heard from the public, if we ever get to travel—unfortunately we're having some problems getting approvals for travel to hear Canadians, but assuming that will happen—in one way, shape or form, we'll have you back.

I want to mention two things. If members have some questions of the IRB, perhaps they can pose them, because we will have you back at the back-end of the process, after we've heard from Canadians. I wonder though in the meantime if you could do some things. One is to give us a present flowchart of how the system works under the current law and a flowchart of how this system is going to work, from your standpoint, under Bill C-11. A picture says a thousand words. I think that would be very helpful for the committee to do. And secondly, if you could just highlight for us the differences, as you see them, between Bill C-11 and Bill C-31, that would be helpful too.

My question to you raises the question of accountability to Parliament. Under section 66 of the current law, you as the chairperson have to table an annual report to Parliament. Under the existing bill, Bill C-11, you're not required to send that to Parliament. You're required to send it to the minister—not necessarily table an annual report to Parliament and thereby directly to the citizens of Canada. Either I have this wrong or...maybe you can explain it to me just so I have an understanding that the IRB will be tabling an annual report to Parliament, as you always have in the past.

Mr. Peter Showler: This is one of Mr. Bailey's favourites, and he hasn't had the opportunity to speak yet so I'm going to ask him to respond.

Mr. Glen Bailey: Under the FAA, we are required to make a report to Parliament, the RPP, the report on plans and priorities, and the agency performance report. The reason it was dropped in the new legislation was because of the already existing requirement under the FAA, the Financial Administration Act, for the board to make a report.

The Chair: I know, but under the present immigration law, section 66 specifically says that Bill C-11 is silent. I'm half reassured that you have to still do it. I'm wondering why, when you were reviewing Bill C-11, you didn't see this omission there, and whether or not you would feel more comfortable if in fact we added it back in so that there was a clear indication of accountability in that you had to table a report to Parliament on an annual basis.

Mr. Glen Bailey: The advice we got was that the requirement is there in the FAA and that in effect what we were doing was having a double requirement. That was the reason why there was the suggestion to take it out.

The Chair: Obviously that advice came from some lawyers.

Mr. Glen Bailey: Yes.

Some hon. members: Oh, oh!

The Chair: Peter, Glen, and Philip, thank you very much again for a very informative meeting. I know you've done an awful lot of work on Bill C-31, now Bill C-11. We want to have you back just to make sure we get everything right. If you can help us out by giving us some of that additional information, we would appreciate it. Thank you very much.

Mr. Peter Showler: Thank you.

• 1025

The Chair: Committee members, we'll move on to our second witnesses. As you can tell, there's always a number of good questions and stuff.

Our second group of witnesses, if I could ask them to come to the table, is from the Office of the Commissioner of Official Languages. With them is Commissioner Dyane Adam. We'll wait for them to get to the table.

Colleagues, I want to welcome Dyane Adam and Johane Tremblay, as well as Gérard Finn and Michel Robichaud, to the committee.

I look forward to your presentation.

Ms. Dyane Adam (Commissioner, Office of the Commissioner of Official Languages): Chairman, members of the committee,

[Translation]

I would like to thank you for inviting me to come and comment on Bill C-11, an Act respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger.

It was very important for me to appear before you today, largely because my mandate requires me to make every effort to ensure recognition of the equal status of our official languages and to ensure that the spirit and the letter of the law are respected. This legislation applies not only to the daily operations of federal institutions, but also relates to the role these institutions play in promoting English and French in Canadian society and of course supporting the development of minority official language communities.

In this respect, Section 41 of the Act states:

The Government of Canada is committed to enhancing the vitality of the English and French linguistic minority communities in Canada and supporting and assisting their development, and fostering the full recognition and use of both English and French in Canadian society.

[English]

While your committee is reviewing the legislation that will bring about important immigration reform, one cannot ignore the impact immigration will have on the demographic renewal of English and French official language communities. In fact, the decisions you make will have a major impact on the health of linguistic minority communities and consequently on the strength of linguistic duality from coast to coast.

Canada's population, as you are well aware, has always depended on immigration for its growth. Since Confederation, over 14 million people have immigrated to Canada, and immigrants and their descendants have contributed to Canada's economic and social development and have helped define our collective identity.

On the whole, immigrants help sustain and strengthen the position of the English-speaking population, while the francophone population rely primarily on natural increase for population growth. When the francophone birth rate declined, however, around the 1960s, immigration became important to the francophone population growth as well.

• 1030

Since the 1970s, Quebec has made successful efforts to recruit French-speaking immigrants, and between 1968 and 1999 some 310,000 French-speaking immigrants have entered the province. Francophone immigrants will undoubtedly continue to play an important role in the demographic renewal of our French-speaking population of Quebec.

[Translation]

In addition to a low birthrate, a significant rate of language transfers to English amongst francophones outside Quebec makes the situation particularly acute for these official language communities. According to the 1996 census, language loss or transfers rose from 30.1 to 31.3% of persons outside Quebec for whom French was the first language they had learned and still understood but for whom English was the language they used most often in their home. The next census will likely show a higher percentage. Although the situation varies from community to community, immigration is of course an essential component of demographic renewal for francophone communities outside Quebec, just as it is for the majority. This is why I included immigration as one of the strategic priorities I outlined in my first annual report to Parliament last fall.

Let us look briefly to the past. The Commissioner of Official Languages observed in his 1988 annual report that, despite the growing dependence on immigration for Canada's demographic growth, policy makers had rarely assessed the impact of immigration on the demographic vitality of our official language minorities. Being very concerned about this issue, I commissioned a study on this matter last summer. Some findings of the study, which is still underway, confirmed the absence of recruitment efforts to attract francophone immigrants to communities outside Quebec and difficulties with integration of French-speaking immigrants into the official language minority communities.

According to demographer Maurice Beaudin, immigration has not increased the francophone population outside Quebec by very much. In the last 15 years, only 3% of the immigrants who arrived in Canada had French as a mother tongue and some 82% of them settled in Quebec. The situation with respect to Quebec's anglophone communities is somewhat different. While immigration has contributed to their growth, the very unfavourable rates of interprovincial migration culminated in significant population losses from 1971 to 1986.

[English]

There are problems with respect to integration as well. The capacity of the official language communities to integrate francophone immigrants who do settle in communities outside Quebec is often quite low. The Commissioner of Official Languages observes in their report in 1996 that Canada's minority official language communities, with the exception of English Montrealers, frequently lack the resources to create the institutions and the structures needed to help immigrants adapt to their new environment. There is definitely a need to reach francophone immigrants outside Quebec who may be unaware that francophone communities exist and that many services are available in French.

• 1035

I would like to say at this point that the Department of Citizenship and Immigration has shown sensitivity to many of these issues and taken a number of measures to address them. But I feel a more comprehensive approach is needed in order to adequately respond to the wide range of concerns, which must be addressed, and to be proactive in this area. Regulations, policies, and departmental programs should be designed to contribute to the demographic renewal of official language communities.

[Translation]

We have carefully examined the reference in Bill C-11 to the equality of English and French as the official languages of Canada, to see if it addresses the concerns I have raised with respect to the fair demographic renewal of minority official language communities. Clause 3(3)(d) states:

(d) This Act is to be construed and applied in a manner that ensures that any person seeking admission to Canada is subject to standards, policies and procedures consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination, and of the equality of English and French as the official languages of Canada.

We are concerned that this clause might be read only to apply to the early stages of the immigration process, as it refers explicitly to the application of standards, policies and procedures to any person seeking admission to Canada. Also, clause 3(3)(d) refers only to the official languages principles expressed by our Charter, and overlooks the broader statement of official languages principles embodied in the Official Languages Act.

What shall we do to address these issues?

I recommend several amendments to the act. I recommend first of all that the following text be added to paragraph 3(1) of the bill, specifying that one of the new act's objectives is:

to ensure the demographic renewal of our official languages communities in Canada through the processes of selection and establishment of immigrants, and their integration into Canadian society.

We also recommend the addition of a new paragraph to subsection 3(3) of the bill. This begins as follows:

(3) This Act is to be construed and applied in a manner that:

And we suggest it should continue with the following:

recognizes and respects the Government of Canada's statutory commitment to enhancing the vitality of the English and French linguistic minority communities in Canada and supporting and assisting their development.

Furthermore, we recommend that the bill be amended in order to assign parliamentary committees, such as yours amongst others, pre- enactment scrutiny of the regulations relating to sections 1 to 32 of the act in consultation with the official languages communities.

In addition, we recommend that the Department of Citizenship and Immigration undertake promotional activities to inform potential immigrants about the existence of minority official language communities and support these communities in their efforts to integrate immigrants.

[English]

In reviewing the proposals submitted, the members of this committee have the responsibility of promoting the fundamental aspects of Canadian identity. The government's commitment to the protection and promotion of our two official languages was made very clear in the Speech from the Throne in January, as well as its commitment to support the sustainable development of our official language minority communities and a strong French culture and language. Our recommendations, in our view, simply recognize the linguistic reality that has enriched Canada for over two centuries and ensure that it will be one of its greatest assets in the years ahead.

• 1040

I wish to thank you for your attention, and I would welcome any comments or questions

The Chair: Thank you, Dyane, for your brief and for your suggestions and recommendations. I'm sure we have some questions.

I'll go to Inky for the first round, ten minutes.

Mr. Inky Mark: Thank you, Mr. Chairman.

I would like to welcome all of you here today. Thank you for your presentations.

I think you hit the nail on the head by talking about supporting integration. I believe that's one of the weak areas of our immigration policy in this country. As we all know, language training is ultimately the most important accomplishment that needs to take place for all new Canadians.

We also realize that we all have the same problem of trying to spread new Canadians across this country. I know that my home province of Manitoba is always losing population.

The Official Languages Act makes a commitment, as you indicated, to advance English and French. In your brief you made some suggestions as to how we could improve the bill. Because integration support is so important, would you support a separate clause dealing just with that subject?

Ms. Dyane Adam: In this intervention I did not go into detail with regard to integration and measures because a lot of those measures are taken, I believe, through regulations or specific departmental programs. But if you, as a member of the committee, feel we need to enforce it in the legislation itself, I certainly would support that. I agree with your comment that it's not only to recruit immigrants to some provinces, such as your own, or to more rural or non-urban areas of the country, but it's also to create there resources and an environment that will allow them to stay there. So I would certainly support any suggestion this committee may make with regard to amending the act or making changes at the regulation level to ensure this is being done for the two official language communities across Canada.

Mr. Inky Mark: That's good.

The Chair: Anita, go ahead.

Ms. Anita Neville: No.

The Chair: Madeleine.

[Translation]

Ms. Madeleine Dalphond-Guiral: It is my turn. How extraordinary! What is going on, Mr. Chairman?

[English]

The Chair: It's incredible, isn't it? It's incroyable.

[Translation]

Ms. Madeleine Dalphond-Guiral: We will take note of that.

Good day, Ms. Adam. I thank you for your presentation.

It is remarkable that women always seem to be able to put the ideal down on paper. Of course the contribution of the immigrant population is essential for the development of Canada, as it is for Quebec's development. We have understood this for 30 years.

Moreover, can we realistically believe—unless we invest incredible sums of money—that an immigrant family, or an immigrant who already speaks French and who chooses not to go to Quebec, would really want to go and save francophone communities outside Quebec? Clearly, I seem very hard in saying this. I'm trying to put myself in his shoes. It is clear that this family that chooses not to go to Quebec but elsewhere in Canada wants above all to become a full member of American society in the broad sense.

• 1045

What can you possibly imagine as a means, as incentive, as motivation? If you manage that, Madam, you will deserve a statue on Parliament Hill. God knows there are not very many women there.

Ms. Dyane Adam: I trust that is a question. You spoke of ideals. First of all, a country is an ideal over all, that is to say it is a social experiment with principles.

Ms. Madeleine Dalphond-Guiral: I understand that.

Ms. Dyane Adam: There are guiding principles that in fact govern the country's decisions. One of the basic characteristics of our country is its linguistic duality. We, and your committee in particular, have a responsibility here to ensure that we preserve this characteristic.

I will get down to specifics. How can we think, imagine or hope to attract francophones to the minority communities where conditions are not always favourable? As we are all aware, the minority communities where francophones live often experience very difficult situations. But that doesn't mean that efforts are not made. I will give you a few examples.

Efforts are currently underway in Manitoba, among others, where the provincial government and the communities and of course, the federal government are working together to recruit francophones and immigrants. It's only a start. There are immigrants who have already expressed an interest and have immigrated there. You may say not many, but as one of the previous speakers said, we are dealing not only with the francophone factor, but also with the fact that these are not often metropolitan areas. I would say this is an added challenge.

There is still the study I mentioned earlier. I do not have the tables with me here, but you would be surprised to see how many francophone immigrants there are in various places in the United States, among others, and even in a province like British Columbia, which recruits quite a number of immigrants without much effort and without any current support mechanisms.

Based on that, I would say that if our will was steadfast and if we had adequate immigrant admission and integration programs and policies, the goal would be achievable. It's a matter of sufficient resources. I do not think it is a matter of outrageous amounts of resources. However, thought must be given to the service chain, from the point of overseas recruitment and promotion of Canada as a country to the point of arrival and reception, when the immigrant must learn other languages or even increase his or her knowledge of French, as he or she may know only the basics in some cases.

[English]

The Chair: Are there any further questions? I'm very generous and liberal today.

[Translation]

Ms. Madeleine Dalphond-Guiral: You really are. I wonder what you ate for breakfast today.

[English]

The Chair: I can assure you it was very good.

[Translation]

Ms. Madeleine Dalphond-Guiral: In your answer, you spoke about the number of French immigrants to the United States. That seems to illustrate what I was saying. Francophone immigrants who choose the United States wish to take an active part in North American society. Their children may speak French if they still have grandparents in France, Belgium or Switzerland. I bet—and I doubt I am wrong—that in three generations, those people who spoke French and chose to immigrate to the United States will no longer speak French. They will speak Spanish if they are in California or Florida. That is the whole challenge.

The ideals are commendable. However, when you think of our communities outside Quebec that are working so hard, they are in decline despite their personal and collective efforts. The farther you go from Quebec, the greater the decline and the assimilation. It is a sad fact, but one which cannot be ignored.

• 1050

Ms. Dyane Adam: If you do not mind, Mr. Chairman, I think today we could deal with the issue of assimilation, which is one thing that obviously harms communities. However, we are also talking about immigration today, and we know full well that the anglophone majority of Canada is renewed largely through immigration. So if we do not create conditions that will enable the francophone minority to renew itself through immigration, the assimilation problem will greatly worsen. So I think we must not confuse the two.

With respect to immigration, what matters to the community is to have support structures and institutions. French-speaking people who choose the United States as their adoptive country surely do so for all kinds of reasons, including the financial attraction. Canada is also attractive to immigrants, for this and many other reasons: it is a society with very significant humanitarian values.

So for a French-speaking person who is drawn to America, let's say North America, access to his or her first language through any infrastructure, including schools, which may not be comparable to the infrastructure available to the majority, enables him or her nonetheless to integrate into Canadian society while keeping his or her personal cultural heritage. That is what is needed for this drive to recruit immigrants to succeed. We must also ensure that the communities are ready for them, and also, of course, have the means to keep them. This means institutions, schools, services, etc.

[English]

The Chair: Thank you. John McCallum.

Mr. John McCallum: As a native-born anglo Montrealer, I have a lot of sympathy for where you're coming from, but I wonder whether it's operational. We haven't really gotten into this, but for economic reasons, an aging population, and so on, we want to have higher immigration levels. I think it's the policy of the government to aim for 1% of the population, which is quite a lot higher than it is today.

What would happen if that objective of higher immigration conflicted with the objective that you write is “to ensure the demographic renewal of our official languages”? I assume you mean minority communities “in Canada through the process of selection and establishing of immigrants”. It seems to me there might be a conflict. If we have very large immigration, which we may want for economic and other reasons, that comes into conflict with what you're proposing. When you say “ensure”, that's a very strong word. Does that mean we would have less immigration in order to accommodate the concerns you are raising should these two things come into conflict?

Ms. Dyane Adam: I believe I read somewhere that politicians are the ones who are very good at reconciling the irreconcilable. If you have to deal with many objectives, at times there are difficulties.

But this is, I think, what is important in the legislation. Economics is one objective, and certainly it's very important. This is how the Canadian population has renewed itself through immigration largely in the past 15 years or so.

But in the process of renewing, we should not let go of other objectives that govern Canada. I think it's a question of putting it up front, putting in the departmental programs needed to do that, and the promotional activities I mentioned. More has to be done because right now it's very timid.

I'm not asking for a balance or a proportion. I haven't mentioned anything of that sort. I'm saying it has to be on our minds. It has to guide our immigration policy and should be up front in our act and legislation.

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Mr. John McCallum: Thank you.

The Chair: John.

Mr. John Herron: I want to make two comments related to the balancing aspect that John touched on. Something I was rather shocked about in the presentation, which I am going to flag in a second, is that we need to augment our population en masse here in this country anyway. Heading toward 300,000, a lot of the demographers say the numbers should be no higher than that. It makes the pool difficult for us to maintain all the objectives we were seeking from an immigration perspective. I think there is a very delicate balancing issue here that John flagged and I wanted to bring forward as well.

[Translation]

And perhaps this will be a good time for me to use my french a little.

I was a bit surprised by what you said twice during your presentation. On one of those occasions, you said:

[English]

In addition, we recommend the Department of Citizenship and Immigration undertake promotional activities to inform potential immigrants about the existence of a minority in official-language communities and support these communities in their efforts to integrate immigrants.

You also said earlier:

There is definitely a need to reach francophone immigrants outside Quebec who may be unaware that francophone institutions exist and that many services are available in French.

[Translation]

I am from New Brunswick, and in my riding, which is almost the most anglophone riding in New Brunswick, there were 2,000 people who could speak French and English about 10 years ago. Now, there are 14,000. Yet, there is nothing in the section of the report on linguistic duality, not even one sentence on New Brunswick, the only truly bilingual province.

Currently, we have two goals in my province: to improve our population and to protect both official languages. Next time, would you please be so kind as to say something like

[English]

“We need to promote the duality that exists in our country.” Do not forget my province in that regard.

Thank you.

Ms. Dyane Adam: Yes, I chose not to speak of any provinces particularly.

Mr. John Herron: No, you referred to Quebec and to Montreal.

Ms. Dyane Adam: Oh, yes.

Mr. John Herron: You even referred to British Columbia. But in terms of that province, it is the only province that is bilingual. That's why we don't like English and French Canada. In my province, we take a lot of pride in our duality. We think that should be promoted as such.

Ms. Dyane Adam: Yes. In this presentation, at least for the purpose of this legislation, I do treat the official language minorities and French minorities as being in all provinces except Quebec, and the reverse for Quebec. This is why Quebec becomes a reference, but just because it's a reversal of the minority in terms of the official language. It's more a way of referring to the anglophone and francophone minorities.

Mr. John Herron: It's a very sensitive issue for anglos like myself who have been brought up in an anglo culture in New Brunswick and embraced that duality.

[Translation]

Do not forget that the last Francophone Summit was held in my province.

[English]

Ms. Dyane Adam: I don't want to deny at all the important role of New Brunswick. You may know that in your province, which is, as you say, the only officially bilingual province in Canada, currently the rate of immigrants in the province is not that large among the provinces. But on the French side now it stands at about 6%.

• 1100

Mr. John Herron: This points to the issue that if you want to promote the existence of services that exist in both languages—in this case protecting the French language—speaking, even in presentations of this nature, about the immense infrastructure.... Even in the anglo ridings such as my own, to protect, speak, promote, and celebrate that linguistic duality is something that would help improve that 6% issue—

Ms. Dyane Adam: You're quite right.

Mr. John Herron: —and my area is probably the exact area you were emphasizing.

Ms. Dyane Adam: I will just finish with that, Mr. Chairman—

The Chair: I'm enjoying the debate.

Ms. Dyane Adam: We will be publishing that study on immigration. We do more or less provincial portraits. One of the conclusions we have made is that New Brunswick is certainly one of the provinces that has the infrastructure that could facilitate the process of integration of the French-speaking minority. So you may be interested to know that.

Mr. John Herron: Thank you.

The Chair: John, you should know that we all know that the sun rises in the east, and there's no doubt that New Brunswick has always been at the forefront of absolutely fantastic and national programs. You're right. It is the only province that officially recognizes our two languages, and that's to be commended. Maybe some of the other provinces will see the light as the sun starts to move west.

I should tell you though—speaking of New Brunswick—that I come from Ontario, and in northern Ontario where I grew up there is a large francophone community. I should tell you that sometimes we underestimate the vitality and vibrancy of our communities throughout the country, not only the English community in Quebec, or the French community, but also the French minority communities throughout the country, including obviously New Brunswick. But Ontario, I can tell you, while it's not officially bilingual, has a lot of services and programs wanting to support those people who in fact prefer to speak French as their first official language.

I have Inky, and then I have the parliamentary secretary for a short comment.

Go ahead, Inky.

Mr. Inky Mark: Thank you, Mr. Chair.

I can say that in my riding I have several very vibrant French-speaking communities.

For me, the more important issue is language training and support. It doesn't matter whether it's English or French. I'd like to ask you, do you have any specifics as to the support the federal government should give in terms of time—number of years—for new migrants to Canada, regardless of whether English or French?

The Chair: Do you mean integration?

Mr. Inky Mark: Language training.

Ms. Dyane Adam: For language training?

Mr. Inky Mark: Training, yes.

Ms. Dyane Adam: I have no opinion, I must say, on this. I'm a psychologist by profession, so I will respond as a clinical psychologist.

The Chair: We're under a study here.

Ms. Dyane Adam: Language training is something that is subjective. Some people take a lot less time. It depends on your environment and the resources that are there. So I think if we want immigrants, and want to be welcoming to them, we have to adjust to the individual. That's my response as a psychologist.

The Chair: Mark.

[Translation]

Mr. Mark Assad (Gatineau, Lib.): Good morning, Madam.

The mandate of the Official Languages Act is obviously to promote both official languages in all departments. However, on page 7, you make a recommendation. If I understand correctly, you would like us to incorporate some aspects of the Official Languages Act into our Bill C-11. It is the part where it says: "In addition, we recommend that the bill be amended in order..."

Ms. Dyane Adam: Yes, yes, ok.

Mr. Mark Assad: What exactly does that mean in...

Ms. Dyane Adam: I made that recommendation because the section inserted in the new bill that was tabled, C-11, refers only to what is in the Charter, namely equal status and recognition for French and English.

• 1105

The Official Languages Act is obviously quasi-constitutional, but it does much more than recognize French and English as the two official languages of Canada. It defines the government's obligations. For example, it describes in detail the government's obligation to ensure demographic renewal, to enhance the vitality and support the development of official language communities.

This whole notion of language status is not in the Charter. That is why we recommend an addition to Bill C-11. The bill should reflect the federal government's commitment and obligation not only to enhance knowledge of both languages—both official languages—but also to increase their use in the communities. Language is a living thing; it must be spoken and lived in the communities.

That is the idea behind my proposed amendment.

[English]

The Chair: Thank you very much. Let me take this opportunity, on behalf of the committee, to thank you all—and Dyane specifically—for your submission and for leaving us with some food for thought, and looking at our country in entirely different and exciting ways.

You mentioned this study you're doing. I know you said it might be completed in June. We would agree with your assumptions that this country was born of immigrants, and probably its future is very much tied to our ability to attract people from all over the world. If you have any preliminary work that you've done that you might want to share with the committee as we talk about this immigration bill, it would be very welcome from our standpoint. So if you could direct it to us, I would appreciate it.

Ms. Dyane Adam: Okay, thank you. Will do.

The Chair: Thank you so much. Goodbye.

Before everyone jumps up—you too, Mark, sit down—I need a quick motion so that we have money to operate.

As you know, this is our operating budget. It simply asks us, or allows us, to be able to work for the coming year from April 1 to March 31, 2002. All it's going to cost us—so far, at least—is $42,800, which is witness expenses, video conferencing, and miscellaneous.

Can I have a motion that we adopt the operating budget of $42,800, and take it to the liaison committee as we have to?

Some hon. members: Agreed.

The Chair: Thank you. The meeting is adjourned.