CITI Committee Meeting

STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION

COMITÉ PERMANENT DE LA CITOYENNETÉ ET DE L'IMMIGRATION

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, March 31, 1998

• 1535

[English]

The Chairman (Mr. Stan Dromisky (Thunder Bay—Atikokan, Lib.)): Good afternoon everyone. We are ready to proceed.

Pursuant to Standing Order 108(2), this is consideration of recommendation 155 of the report of the legislative review advisory group entitled “Not just Numbers: A Canadian Framework for Future Immigration”, particularly issues relating to removal and detention.

We are very fortunate this afternoon, in our first forum, to have members from the Adjudication Division, Immigration and Refugee Board. We have Paul Thibault, who is executive director; Marie Chaput, who is director-general; Michel Meunier, director, adjudication, Montreal region; and Philip Palmer, legal counsel.

Thank you very much, gentlemen and Marie, for appearing before us.

In the forum we operate, you make your presentations and then we simply zero in on some concept. We start with the opposition and anyone can delve into that area, whatever the concept is that has been presented. We exhaust it and go on to another concept.

It's not a very formal pattern we follow. It could bounce all over the place, as long as people are focused on whatever the issue is we're discussing. And we can always switch to a new one.

Thank you very much.

Now who is going to be first? Paul? Thank you very much.

Mr. Paul Thibault (Executive Director, Adjudication Division, Immigration and Refugee Board): Thank you, Mr. Chairman. It's a pleasure again to be with you.

I thought I'd start by perhaps giving you a brief overview of what we do in the area of adjudication. I'll try to make my comments really brief to give you just a broad-brush idea of what our mandate is and what we do.

[Translation]

Essentially, we deal with three kinds of things. We do enquiries on alleged violations of the Immigration Act. There are the removal orders, which account for some 60% of our cases. We also deal with appeals of removal orders issued by the IRB adjudicators. Lastly, we do detention reviews.

[English]

On our relationship to the department, as you know we're an independent tribunal. While we're responsive to referrals from CIC, we have no direct reporting relationship with it in that regard.

Perhaps I might just mention briefly what the respective roles of IRB and CIC are in this process.

As you know, CIC administers the first and last steps in the process. It examines persons arriving in Canada. It investigates suspected inland violations to the act. It refers to the IRB those persons claiming refugee status alleged to have violated the act, alleged to be flight risks or dangerous to the public. The department executes removal orders for processed landing applications consistent with decisions taken at the IRB.

It's important to note that not everybody seen by CIC is referred to the IRB, as Bill C-54 authorizes senior immigration officers to order removal in cases where there are no issues. Indeed, only a very small proportion is referred to the IRB for inquiry.

The IRB decides on issues referred to the board by CIC, including inquiries, appeals, refugee claims, and detention reviews; appeals by persons concerned regarding sponsorship refusal and removal orders; and appeals filed by the minister, which is fairly rare, regarding decisions made following inquiries.

Maybe I will give a quick word on the processes.

[Translation]

Enquiries, detention reviews and hearings on the appeals and on the refugee claims are all quasi-judicial processes. All decisions are made by independent decision makers. Enquiries and detention reviews are carried out by adjudicators and triggered by the minister.

The hearings on appeals and on refugee claims are carried out by order in council appointees and triggered by the persons concerned or the minister.

[English]

Next are some of the possible outcomes, when we talk about the kinds of issues that are under examination here by your committee.

• 1540

The first kind of inquiry is decisions to enter or remain in Canada or orders to leave. The second kind of inquiry is decisions based strictly on evidence provided at the hearing.

The second broad category is appeal against removal orders. This includes decisions to enter or remain in Canada, to execute the removal order or to stay the removal order, subject to review after a determined period of time. The decisions are based strictly on evidence provided at the hearing.

The third category is detention reviews. These are decisions essentially whether or not to continue detention or release somebody with or without conditions. The decisions are based on information provided at the hearing and relate to two basic criteria. The first is that the person concerned is unlikely to appear for examination inquiries and removal and the second is what's considered to be a danger to the public.

On the issue of danger to the public, there's no legal definition of the danger concept. We're guided by the existence of arrest records, criminal records, criminal background, for example, associations, community links, past behaviour, etc. However, criminality in and of itself does not necessarily imply detention.

On the workload, the inquiries have declined from approximately 10,000 per year to 5,000 per year as a result of Bill C-54, which expanded the power of senior immigration officers, as I referred to earlier. This means the immigration officers have the power to take decisions in cases where there are really no major issues involved.

On appeals against removal orders, there are approximately 1,000 per year. That excludes those cases that have been withdrawn or abandoned. Detention reviews are stable at approximately 9,000 per year. About 53% of our decisions at the IRB are on those three categories of inquiries, appeals, and detention reviews.

On appeals against removal orders, if I might just briefly talk about these, about 95% of appeals are made by permanent residents. Appeal rights against removal orders are also open to convention refugees and holders of valid visas, unless denied by ministerial opinion regarding danger to the public. Virtually all of these categories exercise appeal rights. Approximately 90% of permanent resident removals that we deal with are based on criminal convictions.

If I might just say a few words about detention reviews, these are according to legislated timeframes, and 48 hours after a senior immigration officer makes a decision to detain, 7 days following, and every 30 days thereafter, detentions are reviewed.

As you know, we have just issued detention guidelines that recognize detention as an extraordinary measure. I believe the committee was sent a copy the day these were released on March 12, and we have additional copies here with us. They're intended to address criticisms of consistency and transparency. These were broadly consulted, both internally within government and externally with the various stakeholders. Given the breadth of the concept, the content focuses on long-term detention, the concept of danger to the public, alternatives to detention, evidence and procedures, plus it includes a compilation of case law and references to international instruments.

I know you don't have much time, so let me conclude by just talking briefly about long-term detention, which I know is an issue of some concern. Long-term detainees we define as over 90 days, and that includes less than 20% of the general detainee population. In 1997-98, about 229 people were detained for over 90 days out of a total population base of 1,209. We take snapshots at various points as to who's in, who's out, and the the make-up of the detainees. Typically, 60% of long-term detainees are former permanent residents and 40% are failed refugee claimants.

The size of the population that is detained for a long term is often related to the complexities related to removal. This is essentially of two orders: non-cooperation of the person concerned in terms of securing documents to enable him to be removed or, in some cases, non-cooperation or non-assistance from the country to which he is going to provide those travel documents. That's essentially where the long term comes in.

• 1545

With those few comments I'll leave it at that, so you can ask us questions. We're of course available to answer whatever you would like to ask us.

The Chairman: Fine. We'll begin with Mr. Doyle.

Mr. Norman Doyle (St. John's East, PC): I have one question. I'm interested in the term “danger to the public”. This is an individual case I know, but maybe you can address it and help me out with it.

I had a couple of people in to see me yesterday who have applications in the system. Their concern dealt with the power wielded by immigration officers at the point of entry. For instance, one claimant was told he was being designated a danger to the pubic, and he has a hearing in May. He claims the immigration officer in question wouldn't tell him why he is being so designated. He had a local police report and an Interpol report saying he was totally clean, yet he's going to a hearing with a cloud over his head.

How would all that play out at the hearing? Will he be told the nature of the charge against him? Why would he be designated a danger to the public if Interpol and the local police say he has a clean sheet?

Mr. Paul Thibault: It's difficult for us to generalize on a specific case. But maybe Michel, based on his long experience, could give us an idea of how the process works and tell us what comes in front of

[Translation]

the adjudicator and all the rest, such as the type of documentation.

Mr. Michel Meunier (Director, Adjudication, Montreal Region, Immigration and Refugee Board): The issue of danger to the public is dealt with in several places in the Act.

I had some problems with the translation and I haven't fully understood your question. At any rate, a certificate could be issued by the minister to keep the person involved, should they be dangerous to the public, from claiming refugee status or appealing the decision.

The cases submitted to arbitration are those of people alleged by Immigration Canada to be a danger to the public. Usually, not always but usually, that presumption is based upon criminal issues; the person has been convicted here in Canada or abroad. Interpol and various police forces may provide Immigration Canada with information showing that the person may be dangerous to the public. Based on such information, on the answers given by the person or his or her counsel and, finally, on the evidence provided, a decision is rendered by the adjudicator.

[English]

Mr. Norman Doyle: So when the individual who is considered to be a danger to the public goes before a hearing, he is told why he is considered to be a danger.

Mr. Philip Palmer (Legal Counsel, Adjudication Branch, Immigration and Refugee Board): Yes. All the evidence that has to be considered must be introduced at the hearing and made available to the person concerned so they can respond to it and know the case they have to make. At or prior to the hearing, they will have full disclosure of the exact nature of the suspicions that would, in the opinion of the immigration department, render this person a danger to the public.

Mr. Norman Doyle: How long would an individual be in the system before he would go before an adjudicator?

Mr. Michel Meunier: Immigration can detain a person for up to 48 hours, and then the person has to be brought in front of an adjudicator, who then decides whether the person will remain in custody or be released under the terms and conditions.

Mr. Norman Doyle: From that point, how long does it take for a decision to be made?

Mr. Michel Meunier: The hearing would last on average for 40 minutes, while the people are listened to. Then the adjudicator might adjourn for a few minutes. But usually, except in very exceptional cases, the decision is rendered immediately concerning the detention or the release of the person.

The Chairman: Thank you very much, Mr. Doyle.

Next question? Well, I would like to ask a question.

• 1550

First of all, this is going back to a comment that was just made regarding information being presented regarding an individual who is suspected of being a criminal of some type. Are the sources identified and presented to the client in this case? Does he know in a sense who has fingered him or any of that information that pertains to the identification of the individual as a criminal?

I'm not talking about formal records such as Interpol or any of that nature; I'm talking about individuals who might reveal information about that particular individual if he has a criminal background.

Mr. Philip Palmer: We're talking there about something that would be fairly unusual. Normally the evidence that is adduced is a public record of some kind, such as a record of conviction or a statement from a foreign police force or a domestic one. There may be evidence coming from parole board hearings. There may be reports that were adduced at the time of conviction and sentencing, such as pre-sentencing reports, etc., all of which may be available at the time of the hearing.

The fact that somebody may have tipped CIC to the fact that an individual might be suspicious and might have the characteristics that would be susceptible to removal would not ordinarily be before the board. That's because it wouldn't be relevant to the actual determination. It's not evidence as such. It would be like other sources preliminary to a police investigation.

It isn't really relevant to whether the person is or is not a danger to the public, unless they of course had personal evidence to give about it. In that case, they'd be called if they were the only source of evidence with respect to the behaviour of that person. But that would be extraordinary.

The Chairman: But basically it would have to be a very formal report that would be used to make our judgments.

The reason I'm asking that is because I'm leading into something else. Say we visited a refugee camp and selected certain individuals, whether they're in church groups, sponsorships, or whatever. A certain individual is chosen out of the refugee camp, but then three or four or five or maybe a dozen people emerge and say he's the wrong choice, or whatever, simply because he's committed all these atrocities from wherever he came.

Now that would not be a legal, formal report. This would be hearsay from a group of witnesses, and so forth. Would that not stand up in the process? Would it not be valid?

Mr. Philip Palmer: Well, it might be. As I say, the situation described is quite extraordinary, but it could be that in fact individuals would be called to give evidence if there were no—very often, there aren't—formal convictions.

In the case of modern war crimes or something, you don't have criminal records or police records. It may be in fact as you suggest, which is that individuals from that community who have seen the behaviour in the country of origin would be the people who would come forward to adduce evidence that this is in fact a person who is not entitled to remain in Canada. They're not a genuine refugee, so that status would be stripped.

The Mugesera case, of course, comes to mind.

The Chairman: So basically what we're saying is that the net has very large holes in it. Therefore, it's quite possible for the criminal element to very easily get into this country until we have very formal reports.

Now, in many areas where there are crises and conflicts, there are no reports, because the institutions that used to exist in the country maybe have been destroyed or they're completely inoperable. Therefore, we don't have any formal evidence about a person's criminal past, such as whether there might be a genocide or whatever. I'm talking about serious crime here.

Mr. Philip Palmer: I think the holes are not as large as you might fear. I think that with reference to those who come in through the camps and so on, very often in fact those are weeded out through the UNHCR and the various other agencies and the camp populations. So I think that's relatively rare. There are the odd ones who have escaped through other routes and have come to Canada either on their own means or have managed to obtain status through visa posts abroad, but those are extremely small numbers. And, yes, there's an absence of internationally communicated evidence usually about these people, so it is late when it comes to the attention of Canadian authorities in these cases, and then very often we have to rely on other sources of evidence. But I think we've shown that in Canada we can adduce that evidence and it can have the kinds of effects we see.

• 1555

The Chairman: Thank you very much.

Ms. Minna.

Ms. Maria Minna (Beaches—East York, Lib.): Thank you, Mr. Chairman.

I have a series of questions. I'll do a couple and then maybe we'll go around and I can come back to it another time.

Going back to detention, one of the things we heard a great deal about from presenters so far, various NGO groups, was the fact that when people are detained we don't do very well in terms of respecting principles of fundamental justice such as access to lawyers when people are detained, or doctors, or even their religious representative or somebody. This has been a constant with a lot of the various presenters.

Your guidelines refer to principles of fundamental justice, and I wonder whether this is something we are adding because we weren't doing it, or whether we were doing it; we were enforcing it. What I'm trying to get at is whether this is happening in our detention centres. Do we have this kind of problem?

I don't know whether you want me to ask all of them at the same time. Maybe I should let them answer—

The Chairman: Yes, because you're introducing different topics.

Ms. Maria Minna: Yes. I have a couple more. So perhaps you could deal with that.

Ms. Marie Chaput (Director General, Adjudication, Immigration and Refugee Board): I can answer that for you.

The actual conditions within a detention centre do not fall within our purview; in fact those are the purview of the department. So we're not in a position really to elaborate on those. As to the guidelines and their reference to fundamental justice, those references are vis-à-vis procedure in making a detention or release decision. They're not with regard to what transpires within a facility once detained.

Ms. Maria Minna: Let me get back to the reason for detention then, because some of it starts at that end.

One presenter referred to something—and it actually came up a couple of times—as “lightning deportation”, where a person is detained and they're out within 48 hours generally, where there has been obedience and the individual has shown up every time. Some individuals in fact, as they put it, are lured in. They're invited to come in; they're asked to show up. The person shows up and then is immediately detained and they're out of the country within 48 hours without having been given the chance to talk to a lawyer or even see their spouse or their relative or whomever. This is a constant—

Their interpretation of this is that the lightning deportations are used to deport easy cases; that is, people who in fact have actually been following the rules and obeying, instead of dealing with the tough cases, the ones who we think are not going to show up and are more difficult to get at.

This is a perception, but I think it's important to address. How does one decide when to detain? I know the two reasons are fear that the person may not show up and the other is criminality. But at what point and on what basis does an officer decide that the person is likely not to show? As I said, in some cases, people were asked to come and showed up because they had been coming all along. What makes it so that time is the time the officer feels the person won't come the next time?

I'm trying to get at how that part of it works. A lot of the complaints that have come in front of us centre around this.

Ms. Marie Chaput: A lot of times that judgment call is based on something the person actually says in the course of a detention review. As a detention becomes more and more protracted, the person concerned is obviously aware that the process is moving forward and they're becoming increasingly closer to removal and they become, in some cases, more explicit in their wishes not to be removed and the actions they'll take to avoid removal.

• 1600

As well, the adjudicator may have a new piece of information that demonstrates that in another jurisdiction, or during another experience or for the purposes of another proceeding, the person did not appear or fled or, for example, skipped out on a bond. If that was a new piece of information that had not been available in the previous review, then it might be a cause for a different kind of decision.

Ms. Maria Minna: So with the exception of where criminality exists— which is easier in terms of the initial detention decision being more clear-cut, but the initial detention decision on people who don't have a criminal element and have collaborated with the department all along, except for that one last interview—most of it has to be either new information or a judgment call on that very last meeting because the deportation date is nearing. I'm trying to get a handle on how we decide when to detain, what the—

Ms. Marie Chaput: What I was describing was a situation where a person who was already in detention—

Ms. Maria Minna: No, I'm talking about the person who is not in detention.

Ms. Marie Chaput: If they're not in detention, we're not interviewing them. Therefore, if the inquiry has come and gone and a removal order has been issued based on the results of the inquiry and they're not detained during that period, unless they did something that came to our attention that would provoke us to detain them, they wouldn't be in detention.

Mr. Philip Palmer: Perhaps it would help to clarify that the initial decision to detain is normally made by a senior immigration officer. We review that decision in terms of whether the detention should be maintained or whether the person should be released with or without conditions. So we're not in the mind of the immigration officer at that point.

Ms. Maria Minna: We'll have to get to that the next time. I'll let it go.

I'll come back in a minute.

The Chairman: Thank you very much.

[Translation]

Ms. Folco.

Ms. Raymonde Folco (Laval West, Lib.): To clarify a little Mr. Doyle's question on people who might be dangerous to the public here, I wonder whether it is true—correct me if I'm wrong—that someone who has been granted refugee status may be stripped of that status if it can be demonstrated at a later date that they hadn't stated the whole truth.

Obviously, a certain process has to be followed. It would therefore be possible for someone who has been granted refugee status to lose that status on the strength of evidence provided by people from the same country who recognize them because they have seen them or heard about them in their home country.

I think it is important to point out that, when the status has been granted, it is possible to backtrack and withdraw it on very serious grounds. It happens. Correct me if I'm wrong.

Mr. Philip Palmer: You are not wrong. It is perfectly true.

[English]

The Chairman: Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): I have a series of short questions, Mr. Chairman.

In the handout facts about the adjudication division—and here I'm seeking your opinion as much as your experience—in the first paragraph it talks about obtaining the services of a barrister, solicitor or other counsel and to be represented by counsel at the inquiry. Given that a person's liberty is at stake and given that the report recommends counsel be limited to a member of the provincial law society, could you reflect on your experience with people who are not “counsel” within the meaning of a provincial law society? What has your experience been that way and what's your comment upon the report?

• 1605

[Translation]

Mr. Michel Meunier: I've been dealing for 20 years with people who are represented by lawyers, lay counsel or NGOs.

What I can say is that it all depends on the individual. It is difficult to generalize because I have known and I still know some persons who are not lawyers but do an excellent job of representing people at enquiries and detention reviews. I also know some lawyers who represent people at enquiries and may not do as good a job.

It is difficult for me to qualify— I think it depends very much on the individual and their commitment to the person they represent.

[English]

Mr. John McKay: I'm not going to respond to that. I'm seeking an opinion more than anything else.

The second question is with respect to the backgrounder, which says that about 16,000 decisions get made on an annual basis by adjudicators, of which 0.05% are set aside by the federal court. Math was always a bit of a challenge for me, but that seems to be somewhere close to about eight cases annually. Is that about right?

In that we are thinking about how to redesign the system, do you see the appeal process as a necessary process to the adjudication?

Mr. Paul Thibault: This is a really difficult issue for us. I know I've said it before in your committee on another subject, but our role is to operate within what we have and within the system as it exists. I think the facts that you quoted show that we do a good job, a quick job, and an effective job within those constraints.

There are people who will feel it would be better to have another safety net at another level, not just an adjudication in other parts of the operation that we deal with. That's a valid issue, but with respect, I will tell you that's an opinion, and I really can't have that kind of opinion. Our job is simply to say what we do. You're there to judge us as to whether we are right or wrong, but with respect, it's up to you to decide this if you think what we do requires an extra level of look-see.

The Chairman: That's a sensible response. Thank you.

Mr. John McKay: I'm zero and two on equivocal answers so far.

Some hon. members: Oh, oh.

Ms. Maria Minna: You're asking policy questions.

Mr. John McKay: Yes, I am asking policy questions. We're asking policy questions for a good reason: we've been asked to redesign a system and these people are hands-on.

So let me go through a third question here.

Mr. Paul Thibault: I will just say, sir, that I'm sure you will have a lot of witnesses who will have definite views to help you in making your decision.

Mr. John McKay: Yes, I'm sure they will.

This is the other issue. What is the evidence that is before an adjudicator at the time of making a decision at the port of entry? What is the actual evidence that is in place? In a second related question, is the person seeking entry cross-examined on that evidence?

Mr. Michel Meunier: There are very few inquiries at the ports of entry. Are you really talking about adjudication or about the examination by the immigration officer at the port of entry?

Mr. John McKay: Yes, I suppose I'm really asking about that point.

Mr. Michel Meunier: Okay. Because port-of-entry inquiries in most places in Canada are done in the main city, and the evidence is that evidence brought by the minister and the person concerned. The adjudicator has to get a balance between what you listen to under oath. It could be anything, depending on the allegation.

• 1610

If it's an allegation of criminality, most of the time the evidence will be the criminal record; if it is an allegation that a person is not a genuine visitor, it will be mainly the testimony of the person concerned and his reply under oath.

After the hearing, after listening, and after examining all the evidence, the adjudicator will then listen to arguments by both parties and will probably immediately render his decision on the admissibility of the person concerned and probably decide on the detention if the person is also detained by the officer at the port of entry.

Mr. John McKay: One final question, on just simply—

Mr. Michel Meunier: Maybe just to finish this, that type of inquiry is the one we are doing very quickly because most of the time that's the type of case.

Mr. John McKay: Yes. There's one final issue with respect to the minister's decision, and that is, it's our understanding that the adjudicators are being relocated from Mississauga to downtown Toronto, whereas most of their cases are in fact dealt with in Mississauga. On the face of it, it strikes one as a strange bureaucratic decision. Have any of you any opinion on that issue?

Mr. Paul Thibault: Yes. These issues always have a kind of life of their own. As you may or may not know, in Toronto we're being forced to move, by a bunch of circumstances, and so we're locating all of the IRB in one place, in one locale, and that is Toronto.

With respect to the issue of Mississauga versus downtown, I think the basic operating principle is that we're trying to operate with videoconferencing, and that applies whether it's in Mississauga or whether it's in a jail somewhere. If we can get videoconferencing, that's the simplest, easiest way.

We already hold hearings by videoconferencing. The normal, standard kind of hearing that adjudicators run would be done by videoconferencing, so no one would have to move. In the exceptional cases, which are difficult ones and which would be limited to maybe 10% of the cases, people would have to travel back and forth. But I must tell you that even now people travel back and forth. It's not one-stop shopping. We do have people moving around for various hearings.

So this is, as you say, a bureaucratic issue, but we're trying to resolve it in the simplest, most technologically effective way possible.

Mr. John McKay: I take it that the adjudicators would not accept your answer.

Mr. Paul Thibault: I don't think the adjudicators have much choice in it, sir.

Mr. John McKay: Okay.

Mr. Paul Thibault: They're going to live with it.

The Chairman: Thank you very much.

Madam Augustine.

Ms. Jean Augustine (Etobicoke—Lakeshore, Lib.): Thank you, Mr. Chairman.

I want to ask about the issue of the long-term detention, the long-term detainees. Are detainees brought before the adjudicators in handcuffs?

Mr. Michel Meunier: No, they're not brought in front of an adjudicator with handcuffs, except in exceptional cases.

Ms. Jean Augustine: What would be an exceptional case?

Mr. Michel Meunier: If we have information or we realize that the person has behaviour that is dangerous for the people in the room and for himself. That would be the general rule. But I must say that this happens very rarely.

Ms. Jean Augustine: Are people handcuffed on a regular basis when they are detained?

Mr. Michel Meunier: I can say no, not when the adjudicator is there holding his inquiries or detention reviews. I don't know— maybe in the prison, depending on the rules of the institution, but I would say, no, I don't think so. They're inside the institution. Maybe travelling from an institution to an office or something like that— I would say no.

Ms. Jean Augustine: But not when they're before the adjudicator.

Mr. Michel Meunier: Maybe that question should be addressed to the different institutions.

Ms. Jean Augustine: Could you take us through what could be the definition of “reasonableness of delay”? What would be considered to be a reasonable time span or reasonable reasons for postponements, delays? What are some of the things that happen within the system that push someone back into long-term detention?

• 1615

Mr. Michel Meunier: I'm not sure I understand—

Ms. Marie Chaput: People are detained according to criteria. However, in considering the decision to release or detain, as you've noted, the adjudicator must also consider whether, when the person is under a removal order, this is a foreseeable event.

So in the course of a detention review, they would explore in advance of that, or with the department, what steps are being taken and where the department is in terms of securing travel documents, etc. As that becomes a more protracted situation, it becomes a more unreasonable situation. But that has to be weighed in combination with the reasons for detention.

It's clear that sometimes a release is delayed for a long period of time because of lack of cooperation, as Mr. Thibault was explaining, on the part of the government or the detainee. At a certain point in time, it does become unreasonable, but that's a judgment call that takes into account many other factors. So it's a call each adjudicator has to make in each case.

Ms. Jean Augustine: I have been hearing over and over about the numerous instances of arbitrary decisions. I was spending some time going through the document here that spells out the procedures for the principles guiding long-term detention.

Ms. Marie Chaput: Yes.

Ms. Jean Augustine: I'm just trying to understand how an adjudicator, in working through this, arrives at a decision on the one hand and a decision on the other hand.

It seems to me that there are a number of phrases like “within a reasonable period of time” throughout this, which gives the impression that it's the judgment of the adjudicator. The discretionary or evaluative elements in there create the impression in the general public that there is arbitrariness in the system.

Mr. Paul Thibault: If I could, Mrs. Augustine, it's a very difficult issue. First of all, we have to start off with the basis that adjudicators are independent decision-makers, so no one can tell them that they are going to detain a particular type of case for seven days or whatever. Their basis for taking their decision is their independence. That's one issue.

Evidently, the evidence that exists is the same evidence. What may be reasonable for a certain period of time, as the time goes on, becomes less and less reasonable. That's where the adjudicator sits all alone in his chair and makes his decision each time he reviews after his 30-day period.

But what about another 30 days? What might have been reasonable for 60 days may not be reasonable for 90 or 120. Each time he must make that decision on the basis of evidence. There's no new evidence; it's the same evidence.

I think that's what makes it very much a complex job. It's a difficult job. After you detain someone for 120 days, when do you say you can't really do it because you don't have the reason?

Consider the reasons behind it. It's not a punitive measure. It's kind of that we're waiting for them to sign a paper, a passport document or whatever, or we're waiting for a document from another country to enable them to leave Canada. So external circumstances are beyond our control, and time goes on.

But I agree with you that it is very difficult, and there's no clear line as to when it stops and when it starts. That's what adjudicators are all about.

• 1620

Ms. Jean Augustine: Are there categories of persons, countries, or places whereby it's more difficult either to get documentation or to return to get the level of cooperation? Are there more individuals remaining in this long-term detention as a result of those factors?

Ms. Marie Chaput: We found Jamaica and Vietnam to be difficult to deal with in terms of effecting removals.

The Chairman: Mr. Reynolds.

Mr. John Reynolds (West Vancouver—Sunshine Coast, Ref.): This is my last question: why is it difficult in Jamaica and Vietnam? We trade with both those countries. We have reasonable access to both countries. Why is that?

Mr. Paul Thibault: I think the department would have a better grasp on that. It's the relationship with that country as to why the travel documents may or may not be forthcoming.

You're right that there are probably a whole number of factors involved there. The difficulty of the decision is to keep or not to hold, but as for that aspect of it, you'd have to really go back to the department on that.

Mr. John Reynolds: Can we get a list of the countries to which it's difficult to return?

Mr. Paul Thibault: Sure.

Mr. John Reynolds: Thank you.

The Chairman: Thank you. Any further questions?

Ms. Maria Minna: I have a couple of last questions.

One of the things we've heard is that there's more detention in Toronto than elsewhere. This is non-criminal. This is just general. Is that entirely due to the fact that there are more people there? Or is it because there are more immigrants or more refugees who go to Toronto? Or is it that they're applying the detention criteria a little more stringently in Toronto than other places? I'm just wondering if the larger numbers have to do with how we interpret policy there.

Ms. Marie Chaput: You're right. There's the fact that there are travel patterns that bring more people to Toronto. That's one thing. There's the volume of intake. As well, there are efforts by CIC that are targeted to certain groups in certain areas, and that area happens to be one of them.

So that contributes to the volumes of cases referred. As well, there's the make-up of the group that happens to collect in Toronto in terms of criminal background, etc.

But as we said, in every case, there's also the human element. Each adjudicator has their own personal experiences, backgrounds, and thresholds. Therefore, they make different judgments at different points in time. So it explains some of it.

Ms. Maria Minna: Okay. I guess I was referring to cases where it's clear that there's no criminal element. I discounted the fact that if there was a criminal issue, they were going to be detained or there would be some problems.

Ms. Marie Chaput: Yes.

Ms. Maria Minna: This was in the generic population, where there tended to be higher levels of detainees than there would be elsewhere across the country.

I guess I look for some consistency. I understand the adjudicators have their own way. At the end, it's a judgment call. At the end of the day, as Mr. Thibault said, they're sitting by themselves there. But certainly, they all follow, to some degree, some standard criteria to guide them in their decision. So I'm just curious to see why their levels were that much higher in one place over another.

Ms. Marie Chaput: I would speculate that if you want to remove the issue of criminality from the equation, it just boils down to intake volume.

Ms. Maria Minna: Thank you.

Mr. John Reynolds: I just have a short follow-up.

The Chairman: Okay, go ahead.

Mr. John Reynolds: When we get the list of countries where it's difficult or impossible to send people back, could we also have the list of the numbers of people in each of those countries who are either being held or are free while they're waiting to go? It's just so we can know what the numbers are.

Thank you.

Mr. Paul Thibault: Yes.

The Chairman: We'll be expecting the information to be distributed to all members.

Thank you very much for appearing before us.

We have to terminate this half of the round table session.

We'll go on with the representatives from Amnesty International. Lynn Horton is a refugee coordinator. Michael Bossin is a member of the executive.

• 1625

We also have a member here of the Vancouver Refugee Council who will be joining this round table: Phil Rankin is past chair and a member of the executive.

Members of the committee, if you want to grab a coffee right now, do so.

• 1625

• 1629

The Chairman: We are reconvening the committee. We'll continue with the second half.

Thank you very much. You have an idea of the format we are following. Who shall report first?

Mr. Phil Rankin (Past Chair, Member of the Executive, Vancouver Refugee Council): I'd like to report from Vancouver.

I'm Phil Rankin. I'm from the Vancouver Refugee Council, and I also practice immigration law.

I would like to go right to the recommendations, because from reading the debates and listening, I think people are not concentrating on what's being recommended here.

You are being asked to redesign the system. Although I have heard people talk about the shortcomings of the adjudication branch, it's far superior to what is being recommended, with all its shortcomings. That's because they are recommending basically a system where people will be released by the department that arrested them in the first place and that seeks to remove them. So there would be no independence.

Adjudication, for whatever its shortcomings, has a record; tape players are going. Also, they give reasons and they are independent institutionally from Immigration.

What's being proposed is basically status officers, who will determine whether they can be released. They will actually be members of the department.

• 1630

There's no provision in the recommendations that there's going to be some kind of a hearing, that it's going to be recorded, and that decisions are going to be made, so I think it's far inferior to what we have now, with all the shortcomings of the current system.

The other thing that I think is far inferior is what's in recommendation 120, which is the provisional status, and recommendation 122, which is going to add some grounds.

Now, you can only be detained if you are considered unlikely to show up for removal or dangerous. They're going to add the condition of whether you cooperate or whether you're willing to comply with conditions, which is very wide.

So although the report says the decisions now are arbitrary and that things have to be transparent and objective, when we look at recommendation 122, particularly (iii) and (iv), what we see is a large increase in reasons to detain people.

So I predict that in fact what we have here with provisional status, recommendations 120 to 122, is a recipe for detaining a lot more people than we're currently detaining.

Now, as far as the long-term detention issue goes, people are largely in there because they don't cooperate in some way or other. But I would think that if the department— The department actually removes people from Canada, not adjudication. So if you were to recommend that, at the end of 90 days—in the Criminal Code, for instance, there's a 90-day review—the department would have to show that they can remove somebody—otherwise the person would be released—I can assure you that resources will be put into removing that person. In other words, if you want to get rid of the long-term detentions, you should put a recommendation in that at the end of 90 days, there will be a hearing. The department will either say it can remove this person or it will release that person. That way, you will make the priority for them. This is the priority they need. That's instead of saying they can't deal with it now or whatever. I think that's what's necessary to get the long-term people out.

I come from Vancouver, where we're blessed with a very good adjudication department. I realize that Toronto is not in the same situation.

Our adjudicating department in Vancouver has only two members, both of whom are excellent. In fact, if they set the standard for the rest of the country, we wouldn't have any problems here. With both people concerned, we have no complaints with them.

I know that's very unusual. If I come to the bar in Toronto, they look at me like I'm crazy, but we actually have a very good adjudication department. It's very fair and sensible. They don't have the problems of the people in long-term custody. They don't have the rates of detention that you see elsewhere in the country. That's because of the personalities of the people in that department.

I think these guidelines that are now— These people didn't need guidelines. They were using the guidelines. They lived those guidelines for years and years and years. So I think the guidelines are a welcome relief.

But I also want to back up. This report is recommending that these people who will now determine detentions instead of adjudicators will now do the job.

Currently, they have the power to release people within the first 48 hours. In my experience, which is about 20 years, I would say that in 99% of the time, I have never seen an immigration officer release somebody within the first 48 hours. When they arrest, they keep them until the adjudicator releases them.

So we're now asking the department—it's a proven failure—with a track record that always had the authority to release people within the first 48 hours to now take over the whole job. I think that's a complete mistake.

Then they want to create something called a status review officer at the end of the whole process. I don't know why we're inventing this person, this additional bureaucrat within the department, to review the decisions that his immigration officer should have done in the first place.

If you don't have institutional independence— Adjudication is not perfectly independent, but it is a different department: it is in the IRB. What they don't have is security of tenure, which would make them more independent, and they don't have financial security.

They're basically paid under the public service, and that makes them less independent, say, than a judge or an IRB member. But generally, they have the institutional independence, and we shouldn't throw away institutional independence for this unproven horse that they have in this particular report.

I wanted to sort of emphasize that thing. I think the provisional status and the status determination officers are not going to solve the institutional problems they say they can solve by it. I think adding additional reasons— The provisional status thing is just really going to be a nightmare.

We see people all the time who changed jobs without asking Immigration about changing jobs. We see students who don't extend their student status, go to different schools, stop going to school, or fail courses.

Why should we arrest those people? You might want to remove them. You might want to say they violated the act, but why would you want to do— As suggested under this, they've done something to violate their status, so they should be going to detention. That doesn't make sense. Detentions are a very expensive process. It's $200 per day per person and the money can be spent elsewhere. I am in favour of administrative fines. I think that rather than removing people, students who change schools without permission should pay a $500 fine.

• 1635

I know from clients I've had that they would much rather do that than be sent back to Asia where their parents are about to lynch them because they've stopped going to school and maybe never get back into Canada.

I am going to go to the last part: why don't people leave? What this report is really emphasizing is that we're to have less due process and we're going to be a little harsher and detain more people for longer periods of time and then they'll cooperate; we'll get travel documents and then we'll remove them.

One of the biggest problems we have right now is that there is no incentive to leave. In other words, if I have clients who are deported, the minister could give them consent to come back to Canada, but 99% of the time they don't give their consent. So perhaps we should think of a system that would reward people for leaving Canada after they got deportation orders.

In other words, they're ready to pay their way out of here. You could turn it into an exclusion order where they would go for only— I don't mean necessarily for criminality, but say for people in non-criminal situations: “All right, I've worked illegally. I've been deported. I didn't leave within 30 days of my departure order. I've now got a deportation order. But now I have a girlfriend in Canada who wants to marry me and I need to now get my life back to normal, so I'll take the penalty of a year's exclusion.”

If you could find some incentives, people would actually go. They would pay their way out of here if they knew they could regularize their status at some point in the future.

Since Bill C-44 came in, immigration officers can now issue departure orders and you only have 30 days to leave Canada. Well, a lot of people can't get their act together in 30 days, so their departure order will automatically become a deportation order. Then there's no incentive to leave because they'll never get back. So this quick departure order thing that was thought up for them has in fact backfired. It has made a lot of people live underground because they're hoping some day, somehow, with a baby or with a marriage, they'll be able to regularize their status.

We haven't given them a mechanism for regularizing their status, and we have a minister who is not interested particularly in giving consents or ministerial permits, so we haven't got the incentives.

You could actually do a lot of things under the Immigration Act if there were some discretion left and if you gave some rewards for people to— There needs to be a little bit of a penalty—they've got to go for at least a year or else everybody will be asking for the benefit—but they should be able to regularize their status. Give them a chance to pay their way out of here and give them an incentive to leave.

We had something like it under the backlog, I remember, with the Poles, who were told that if they left Canada they could get a letter that would guarantee them an interview in Warsaw with the Department of Immigration. We were able to convince a number of failed refugee claimants to go on that basis.

I have lots of things I could say about other aspects, but I don't want to take my friends' time.

I would simply say that when you redesign, don't redesign with a system that will be worse than the one we've got. I prefer to fix the one we have than make do with the one they're preparing us for.

The Chairman: Thank you very much.

Lynn Horton, do you have something?

Ms. Lynn Horton (Refugee Coordinator, Amnesty International): I don't talk quite as fast as Phil does and my voice isn't as clear today.

I'm Lynn Horton. I'm a refugee coordinator with Amnesty International in Canada. With me is Michael Bossin. Michael is a lawyer who has worked on many refugee cases and he's a member of Amnesty's current executive. He's also a member of our refugee network.

Amnesty is a human rights organization with a limited mandate with respect to refugees. We try to ensure that people who have escaped the worst human rights abuses aren't sent back to face them.

We work in particular to prevent refoulement of people to face arbitrary detention of prisoners of conscience, torture, disappearance or extra-judicial execution. That's our mandate. That's as far as we go. So there are lots of aspects of this report that don't concern us at all.

We do some work at the policy level, such as this, but chiefly we review refugee cases that are brought to us, cases that appear to raise concerns of the type that fall within our mandate.

Once we do our interviews and our research, if we believe a person is likely to face that kind of risk if they're sent back, we intervene, usually by way of a letter, to try to prevent the deportation, to prevent the removal. That's our experience from which we draw in our comments about removals.

In our work we also regularly receive calls about people who are in detention. We are thus kept aware of detention practices and conditions.

Today, we'd like to address the three issues with you. Michael will tell you of our concerns about how detention is used and about the proposals of the legislative advisory group for extending that use, and I will briefly address the issue of the conditions of detention. You will then hear from me again about removals practices and the need for positive change in this area.

• 1640

The Chairman: Michael.

Mr. Michael Bossin (Member of the Executive, Amnesty International): Thank you. I'm going to talk about when people should be detained.

I happened to sit in last week on one of your sessions. Having heard Mr. Rankin, I get the creeping feeling that maybe some of what I say you've heard before. But I'm going to say it anyway.

I'll remind you maybe of what this committee already knows when I say that when we talk about detention in an immigration context, we are not talking about punishing people for crimes they have committed. We're talking about preventive detention. We're talking about locking people up to prevent them from either endangering the Canadian public or to ensure that in the future they're going to show up. That is very distinct from detaining people who've committed an offence in this country.

Internationally and in this country there have been many judicial decisions to say that this should be used in exceptional circumstances only, that preventive detention is an exceptional measure. It should not be the norm. It's in our charter as well, and as you know, there are a number of provisions in the charter to deal with detention and rights of people who are detained. It should not be done arbitrarily.

I'm also here to remind you that the right to liberty is a fundamental right, both in this country and internationally, and it ought not ever to be taken away lightly.

That principle, it would appear to us, is a view that was not wholeheartedly embraced by the authors of the legislative review report. For example, with respect to refugees, the report presumes that the only effective incentive for making asylum-seekers comply with the determination process is detention.

As Mr. Rankin has indicated, they set up a sort of provisional status, and if people do not comply, the only remedy mentioned in the report is that people would be detained. As we say in our brief, detention becomes the new mandatory default status. It's as if, when it came to imagination and thought and resourcefulness in terms of trying to consider what other possible ways we can induce people to do what we want them to do, the only thing this group could come up with was to put them in jail. That's the only incentive mentioned here.

The report says a person who's not able to meet the requirements for provisional status without due cause would have to be detained. This term “due cause” is not defined in the report. I'm not quite sure what it means. Nor is it clear from the report which authority would be the arbitrator of what is due cause, what is a justifiable reason for not complying.

What is clear, as Mr. Rankin points out, is that the report envisages an expansion of the existing grounds for detention. Right now you can only be detained if you're going to pose a danger to the public or if you're not likely to appear. But if these recommendations are accepted, there would be other new and expanded grounds for detention.

One of the examples we cite in our brief is that refugee claimants will be required and expected, if they come here undocumented, to immediately apply for a passport or travel document. In our brief to the ministry we have indicated some concerns about that, where people come from countries where there may be some consequences for their family members if it's known they left the country, if it becomes known they left illegally, for example.

We've come to learn that in the example of Iran, in their application for a travel document, which we've enclosed in our brief, they have to describe the manner in which they left the country. Many of them have to leave the country illegally. They also have to repent. Not surprisingly, many people in that circumstance will be reluctant to apply to their country, particularly the country from which they just fled, for a travel document. Should we lock people up in those circumstances? Well, we would think not. But that is precisely what's been recommended.

As we point out in our brief with respect to international standards, the UNHCR guidelines on detentions of asylum-seekers specifically proscribes detaining people for failure to comply with administrative requirements. The UNHCR is opposed to it. We are opposed to it. But that is clearly what has been recommended here.

• 1645

I was going to deal with the issue of when, if ever, someone should be detained to establish the identity of a refugee claimant, but I think I'll run out of time. If there's a question, I'll be happy to deal with that, and Lynn will talk about the other issues we've raised.

The Chairman: Very good.

Mr. Doyle.

Mr. Norman Doyle: I have just one question. I wonder how Ms. Horton would feel about the comment Mr. Rankin made with respect to the replacement of the IRB with a group of career civil servants. Is that a good move? Is that a good recommendation, in your opinion?

Ms. Lynn Horton: We have considerable concerns about the independence. We believe an impartial and independent and expert body is the greatest assurance of responsible decision-making in this area. In our brief today, we touch on that, and in the brief to the minister, at great length. We have many grave concerns about that. I'd be pleased to provide you with a copy of our brief on that.

Mr. Norman Doyle: So you feel that the current system, the current IRB, would have more independence.

Ms. Lynn Horton: Considerably, yes, indeed.

The Chairman: Mr. Reynolds.

Mr. John Reynolds: I'd like to ask a question on the adjudicators. Would you like to see them be judicial appointments rather than part of a ministry—in other words, have a system where people are appointed who are totally independent?

Mr. Phil Rankin: I would like to see an improvement in the appointment. We don't actually have an appointment system for our adjudicators, so the appointment system is one of the biggest flaws of the IRB, in my opinion, because it's politicized in many of the appointments, although some are excellent, and even some of the political appointees can be good, but that's not necessarily in the design. So yes, I would like to see an improved form of appointments.

What they do for judges, as I understand, is they have institutions that make recommendations that are binding. So you have to have the approval of, say, three or four bodies that should be involved in it, and you of course have to have the experience to do the job and it has to be out of the hands of the minister, which I would endorse.

The Chairman: Lynn, did you want to say something?

Ms. Lynn Horton: Yes, sorry, I have two more points to cover.

The Chairman: Okay.

Ms. Lynn Horton: I'm glad to take questions now, if that's what's desired, but I'd like to speak briefly about the conditions of detention and removals.

The Chairman: Go right ahead, please.

Ms. Lynn Horton: On the physical conditions of detention, we're glad to see that the advisory committee recommended a detention environment that ensures access to telephones and lawyers and to NGOs. This would be an improvement over the current conditions.

Access to counsel currently exists theoretically, but often we hear from detainees across the country that they can't get access to a lawyer, sometimes because they can't pay and legal aid is not consistently available. This troubles us. We find that without access to legal help, people are often stuck in detention far longer than they should be. If provincial legal aid programs aren't able or prepared to give real access to counsel, there is precedent for the federal powers to provide representation.

As for access to NGOs, this too is limited. For example, we are aware that Amnesty's name is on a list of persona non grata at the Celebrity Inn in Toronto. I'm not updated on that list regularly, but I've certainly been told it has been seen.

A voice: Is that a positive or a negative list?

Ms. Lynn Horton: Well, we do have occasion to want to go out there to speak to people and we can't get in.

Ms. Jean Augustine: You wouldn't want to go there.

Ms. Lynn Horton: We include in our brief, at page 7, a proposed code that would govern conditions for holding asylum-seekers. I would like to think you might address your attention to that at some point. Each element in that list on page 7 derives from an international instrument. These are international standards we propose.

I'd ask you now to turn your attention to the issue of removals. The legislative review advisory group recommends a risk assessment and designates their proposed protection agency to undertake it. We have reservations about the protection agency as they conceive it, mostly on the point of independence, but we do agree that decisions about risk should be made by a body that specializes in decision-making around protection needs.

We also agree with the legislative review advisory group, and with Mr. Tassé in the Tassé report, that risk should be assessed as closely as possible to the time of the proposed removal. However, we think that apart from those two points, the removals regime in the LRAG report, the legislative review advisory group report, simply won't work. The advisory group report suggests that removals would come up with the plan. Mr. Tassé recognizes that coming up with a plan takes some months and can sometimes take up to six months. Thereafter, the report suggests that the person to be deported would be told the date, time, and destination and then have 48 hours to make an application to ask for this risk assessment.

• 1650

It seems, and I've read this again and again, that the advisory group thinks that in the 48 hours the person who is about to be deported must get themselves to a lawyer and or an NGO and come up with a case that says they are at risk in their home country. We suggest that this is simply an impossibility. In our brief, at pages 8 to 10, we go through point by point the questions we think are left unanswered by this regime. Particularly we address the practical impossibilities of the scheme.

Rather than go through that now, I thought I'd tell you what we've learned about removals in our work in this area. First off, Amnesty is often a group to which people go when they want to document or they want to find out what's likely to happen to them when they return to their country. There is no way that Amnesty International can in 48 hours come up with a risk assessment for an individual. It is simply an impossibility. I'd be very glad to tell you why that's an impossibility, but it's inconceivable that we could routinely take up this role that the advisory group I think would cast us in.

The timeframe we believe has to be long enough to leave time to get good information. We also feel that the risk assessment misses the point if the assessor gets stuck, as the report suggests, in looking for a change of circumstances since the IRB's decision. “Change of circumstances” are three words that have generated more than their fair share of jurisprudence and debate. People look for what has changed. Is it durable change? Is it enough change? No. We think the question that must be asked is, what is going to happen to this person if they are sent back to this country now? It has to be forward-looking if you're talking about an assessment of risk.

Further, the advisory group looks for risk to life, the proverbial bullet with a person's name on it. Even the current standard is not so high. Amnesty believes the risk to consider is the risk—and here we go back to our mandate—to arbitrary detention, torture, disappearance, and execution. If those risks are identified, then the removal should not proceed. What if the person is at risk in some parts of the country but not in other parts of the country? The advisory group says the removal goes ahead unless the person is at risk in every part of the country. This parallels the current standard for the post-determination review.

There's a fundamental problem with this, and this is a problem that was raised with Mr. Tassé as he was doing his survey. There may indeed be a safe region in the country. The IRB may have turned the case down because they have identified a particular area as being an internal flight alternative, the IFA. The problem is the deportee has to get there. When we raise these sorts of questions with removals, they typically deny that they have the responsibility actually to get the person to the area that the IRB has identified as the IFA. They feel they've done their job, their duty to the Canadian taxpayers, they tell us, if they get the person to the country.

Somalia has been a learning ground for us on this point. In the last decade members of clans have been typically unsafe outside of their clan's territory, and not all territories can be accessed from Canada. In a few cases that we've worked on this hasn't stopped removals from dropping Somalis in areas of Somalia where their chances of reaching the area where they would be safe are virtually nil.

At appendix A of our brief we give you the details of one such case. You'll see in this case that even where the minister's office got involved and gave assurances that the particular person would be gotten to his safe area, removals didn't come through. They simply dumped him thousands of miles away from his clan's area, and there was no answer to us. In the minister's office, I believe the departmental assistant was deeply embarrassed, but it came down to the fact that they simply didn't have the means to make removals do as they said they would do in their assurances.

• 1655

For us, this underscored the perception, certainly within this community, that removals is an entity unto itself and is not really under anybody's control.

At Amnesty we think what is needed is a policy of conferring with people about their removal, especially on questions of timing. Once that's done the person has to be told how they would be removed and with enough detail, including roots, and in enough time before the actual date that they can consider whether or not they think there's a risk of arbitrary detention and torture or disappearance. If they think that kind of risk exists, they should be able to review the risk assessment. We would anticipate that a risk assessment would, as a matter of course, be done in each case. The assessment should cover the risks I've mentioned and should consider whether those risks exist in all the regions the person has to travel through in order to get to the area where they're safe.

One more comment with respect to removals. The legislative review advisory group report considers risk assessment and how it would work for people who are excluded for protection as refugees because they've committed war crimes or crimes against humanity. They say they can have the risk assessment but that the removal should go ahead even where risk is identified. They say the Geneva convention allows this—this is at page 120.

Well, that's right, but that's not right. The refugee convention says such people don't get refugee protection. However, Canada has ratified both the UN convention against torture and the declaration on the protection of all persons from enforced disappearance. Both of these contain unconditional and absolute prohibitions against deporting anybody, even war criminals, to countries where they're at risk of torture.

The advisory group went the half-step in their recommendations, recommendation 87, and said that protection needs should be assessed, that all protection needs, from the start, should be assessed in light of not only the refugee convention but also drawing on other current and developing human rights and humanitarian centres. They specifically named the UN.

It seems self-evident that if Canada has an unconditional duty not to deport where such risk exists, then not only must the risk assessment assess such risks but removal has to be stopped. The Federal Court Trial Division is of the same view.

In the Toronto Star yesterday, you may have seen an article by Allan Thompson reporting on the case of Jamshid Farhadi. I included a copy of this article on the back of appendix A. It's a decision based on charter grounds, the testing of a security certificate. Essentially—and I just spoke to the lawyer before I came—it says that there must be a risk assessment and the testing of a security certificate under the provision. The procedure in the Immigration Act is not that test. It prevented the removal of Mr. Farhadi because there hadn't been a risk assessment and there were allegations of a possibility of torture.

Thank you. Those are our thoughts.

The Chairman: Thank you very much, Lynn.

Are there any questions now from any member of the committee?

Madam Minna.

Ms. Maria Minna: Yes, I have a couple of questions.

The first one I wanted to ask Ms. Horton. I may have misunderstood you, but I thought I heard you say you cannot get into the Celebrity Inn.

Ms. Lynn Horton: We've heard that our name is on the list of persona non grata, and I've heard this from a person standing across from the list in the office making a phone call. I've heard it numerous times.

Ms. Maria Minna: Apart from hearing it, have you been denied or prevented from going in and talking to anyone you've tried to—

Ms. Lynn Horton: No, we haven't recently gone out there. Since we've heard of this, we haven't had occasion to go out there.

Ms. Maria Minna: I'm trying to deal with the facts. It is important. So you were told by someone that you were on the list and you stopped going. That doesn't make sense. Were you going before? Had you visited people in the Celebrity centre before and never been stopped?

Ms. Lynn Horton: We haven't been stopped. We haven't been doing that kind of work recently. We haven't had occasion to go out there.

Ms. Maria Minna: So it wasn't because your name was on the list, was it? I'm trying to clear up exactly what's happening because this is important to me. You've not gone because you've not had reason to go is one thing, but when you went before you had access and things were normal. But if you had gone and not been allowed in because of such a list, that's a different story. I'm trying to clear up which it is.

You have not gone because you had no occasion to go. Is that it?

Ms. Lynn Horton: That's right.

Ms. Maria Minna: Okay. But you've heard the rumour that you're on a list.

Ms. Lynn Horton: It's more than a rumour. The person is a person employed by the Toronto Refugee Affairs Council who has seen our name on the list. We haven't tested it, it's true.

Ms. Maria Minna: Okay. I just wanted to clear some of the information and where it's at.

My other question has to do with the whole issue of provisional status. I think Mr. Rankin alluded to some of that earlier, but in meeting with some of the other groups we've met over the last week, I've posed this question a couple of times. What I seemed to be getting from even refugee groups—I think the CCR was one of them—is they liked the concept of the provisional status but were not happy with the way it might be administered, what happens, or how you lose it.

• 1700

Mr. Phil Rankin: I read that, too, but I understood her to mean— What she liked about provisional status was at least you would have a piece of paper that said you had some kind of status. The social services in each province are completely winging on having some kind of status. If you don't show them some status, they won't give you medical benefits or anything. You have to show them you have some kind of status.

I guess she thought with a provisional status regime you would at least have a piece of paper that said you had some kind of status, even if it was as a failed refugee claimant. You would have some kind of status recognized on a piece of paper to give social services.

These people are recommending that the purpose of status is to keep you out of jail. Every time you don't have status, you're in jail in this regime, in the report.

The only benefit you get from having some kind of status is social services. Frankly, I'd rather live with the current system of having some grey areas with them out of jail than with them in jail. If that's the trade-off, it isn't worth it.

Ms. Maria Minna: But will provisional status automatically mean you lose it—

Mr. Phil Rankin: If you don't have it, according to recommendation 122—

Ms. Maria Minna: I understand that. You're in detention.

Mr. Phil Rankin: Yes, you're in detention. If you don't have status, you're in detention.

Ms. Maria Minna: Yes, I understand that. But because we're trying to come up with some solutions, in your view is the concept of provisional status workable if the loss of it doesn't happen so easily?

Mr. Phil Rankin: I frankly think it's what we currently have. All people without status currently are subject to being arrested. They just don't bother doing it. You currently have a system where nobody just exists nowhere. You have people under deportation orders, and I suppose they don't have status. We could give them some sort of status that would help them get work permits, continue to go to school, or whatever, if they aren't ready to remove them. That would be a good thing.

Mr. Michael Bossin: I think you can also say there's nothing wrong with making it an incentive for people to comply with the act to proceed with their refugee claims or do what they have to do.

Our concern is that from the report, the only remedy when someone falls outside those strict time lines or doesn't comply strictly with the requirements for provisional status is to throw them in jail. But I don't think anyone would say there's anything wrong with putting incentives in the act that would encourage people to comply.

Mr. Phil Rankin: Isn't it also the problem that recommendations 122 and 123 say “is willing to comply with conditions of provisional status”, but we don't know what conditions an immigration officer could put on? They could be very wide indeed. Then they are recommending that mandatory and optional conditions of various categories be spelled out, but you can't spell out all the things these people can think up.

For instance, you can have daily reporting, but if everybody moves from downtown Toronto to Mississauga and you're on welfare and you have to travel 40 miles a day to report daily, that isn't reasonable. That might be what will happen.

We see it very often in Vancouver, where Thais have had very numerous reporting conditions and they just don't make them all the time. They don't catch the bus and don't go there that day. In Toronto, I think it's worse because the geographic area between where they're planning to put enforcement at the airport and downtown Toronto is about 40 miles.

As a criminal lawyer, I say give them less power, make them spell it out, and err on the side of limiting the conditions you can put on people, unless you really need them. Don't say it's wide open and anything you can think up would be a good idea.

The Chairman: Thank you very much.

Are there any further questions? Mr. McKay.

Mr. John McKay: Mr. Rankin, on the issue you raised about the 90 days, I take it the concept of 90 days' detention maximum is basically fish or cut bait.

Mr. Phil Rankin: Yes.

Mr. John McKay: Prove your case or we—

Mr. Phil Rankin: Prove you can remove this guy and you need him in custody because he's unlikely to show or let him go because you're not doing your job. It will force them to put all the resources into that 90-day removal and get rid of the guy. That's what will happen.

Mr. John McKay: So even in the strange situation where the individual is not being cooperative, not applying for a passport, not applying for travel documents—

Mr. Phil Rankin: If he's not a danger to the public— I also think a lot of the material they need to remove people could be negotiated at a government level, or they actually have it on file, particularly if they are permanent residents, because all these people have gone to visa offices overseas. You could probably actually go to the visa office in Kuwait and say, “This guy applied three years ago. Didn't he give you a Xerox copy of his passport at the time?” What they want to do is get new documents in. Frankly, give them a little more incentive and they'll have a little more imagination in regard to how to remove people.

• 1705

Mr. John McKay: Do you think that Immigration Canada could do a more vigilant job in terms of collecting documentation at the front end of the system?

Mr. Phil Rankin: Yes. I have concerns about what our friends in the NGOs say. For example, I have the case of a Chinese refugee claimant who's a landed immigrant and went down to the Chinese embassy to get his passport. They took the identity document he brought them and now are asking him why he's in Canada. Now they want to know about his family. He's just married. He has a wife and he wants to bring her to Canada, and he's worried now. They aren't going to give him a passport. They're now backing up and saying, “We know you're here. Now write down why you're here.” He didn't say he was a refugee claimant. They figured that out themselves. Now it's going to back up because his wife wants to come to Canada, they're going to start checking her out, and they may not give her an exit permit.

Mr. John McKay: So the issue for you is that the identity document could be used against the claimant.

Mr. Phil Rankin: When you apply for it in the refugee context, it can string out a lot of stuff.

Mr. John McKay: So your incentive becomes a perverse incentive to—

Mr. Phil Rankin: Right. In particular, I think the Chinese and the Vietnamese are very similar; they don't give up on you very easily. Once they've decided you're here for some reason that they can't quite figure out, they want you to go through a lot of explanation. Even in the case of my client, who actually is a convention refugee and is not going back to China, they're making him run right through all the hoops, and now they're about to back up. I have an application in for his wife to come here. I presume they're going to go and check her out, and they may not give her an exit permit. I think the next problem is going to be that she won't be able to come here because he's applied for a passport.

Mr. John McKay: Doesn't that make it a bit of a hopeless dilemma for the department? On the one level you want to build in incentives to cooperate, and with the incentives to cooperate you end up creating that very negative condition you intended to remedy.

Mr. Phil Rankin: Many of these countries will let people go back without passports. They just require proof that the people are citizens of those countries. They get one-way travel documents for large amounts of them. So don't buy this idea that if they have to apply for a passport they can't be removed. That's not true.

Mr. John McKay: So in your view Immigration Canada just dumps them on the plane and it's “you're outta here”.

Mr. Phil Rankin: No. I've had them stopped in India and sent back.

On the other side of our Department of External Affairs, they can work out arrangements where countries will recognize and take back their people when you provide reasonable proof that they are citizens of, say, Poland, or wherever it is.

Many countries don't require passports and do remove people and give one-way travel documents. You have these unreasonable countries, and that's a diplomatic thing. Work with those countries that are unreasonable, the ones we have good relations with and trade relations with.

Mr. John McKay: On a separate but related issue, is there any intellectual or legal reason—and this is a question for the entire panel—why risk review and refugee determination could not be done simultaneously?

Mr. Phil Rankin: Because of the time between one and the other. My proverbial example is the Nigerian who came in after a coup. By the time I got him to the refugee hearing, the guys he supported took over the government again. By the time he lost the refugee claim and it came time to remove him, the guys who took over the government were out and another group got in that was equally bad. There were about 18 months between those events. That's the real reason, and also, I guess—

Mr. John McKay: Absent that, there are monitoring conditions on changes of government. Afghanistan is a classic example, where the winners are losers and the losers are winners. Having said that, as a general proposition, is there any reason why this can't be done simultaneously?

Mr. Phil Rankin: I guess there are two things that could improve the situation. It wouldn't be perfect. You'd still need a risk review at the end of it all. You could give the CRDD the ability to reopen for fresh evidence, such as my Nigerian case. We don't have that currently. That would take a whole bunch out. We could reopen them and say, “Your internal flight alternative doesn't work any more. Eight months have gone by and you're still here.”

Mr. John McKay: The onus would be on the claimant to demonstrate that.

Mr. Phil Rankin: Sure.

Mr. John McKay: Okay.

Mr. Phil Rankin: Also, I think there would be those cases where the refugee division could say, “You don't meet the definition, but we think you're at risk if you're removed.”

Mr. John McKay: That would be a given. It would be a double determination.

Mr. Phil Rankin: They could make it a sort of subcategory of decision-making, but at the end of it all there still needs to be— And certainly it doesn't need to be 48 hours; it needs to be a reasonable length of time. The risk assessor now has 15 days.

As for my example of 48 hours, in Vancouver we have a lot of arrests on Fridays. Thursdays and Fridays are very active times for immigration officers to arrest because that means there are four or five days before they have to get before an adjudicator. They don't all come in for 48 hours. If you have a 48-hour risk assessment, you're going to have a lot of Friday night moves to get people on the weekend, and they won't be able to get them. You just can't have 48-hour time limits that don't work. It would just be an impossibility.

• 1710

In the end, for a small percentage of people, you need to have people who are prepared to say that this person can't be moved from Canada, even though we've got the documents and we could remove them. That's because he may be killed, or there other things, such as torture, disappearance, or whatever.

Those criteria will take place, and it can't be—

Mr. John McKay: I'm not arguing the point as to whether or not you still do a full risk assessment. My point is, can you squeeze that down to a double determination? At the point of the determination, as for whether or not the individual is a refugee, you can also make a determination as to whether the individual is or is not at risk. Then if there's a change at the point of exit, the onus is on the individual to demonstrate that his risk status has changed.

Is there any reason why that can't be done?

Mr. Michael Bossin: Right now, if you don't fit the definition of a refugee, even though you are at risk, you have to make some other separate application—

Mr. Phil Rankin: Humanitarian.

Mr. Michael Bossin: —like a humanitarian application or something else, which is a long and prolonged process. It costs money for both the government and the applicants.

There's no reason why, at the initial hearing, there cannot be, as you say, an examination. While you may not fit the definition of a refugee, there may be a reason—

Mr. John McKay: Could you throw humanitarian and compassion into that?

Mr. Phil Rankin: Yes, you could.

Mr. John McKay: So you could have a triple whammy, if you will.

Mr. Phil Rankin: You could expand the jurisdiction of the CRDD to allow them to be open to fresh evidence to deal with a risk and humanitarian concerns. I'm not sure they want to bite that all off, but you could do that.

This would take you clear of quite a few of the problematic cases you currently have.

Mr. John McKay: Well, that's the point.

Mr. Phil Rankin: But you would still need to have a removals assessment. I just don't think it should be done by removals.

Mr. Michael Bossin: It may not necessarily be done by the same body, the people who make the application, whoever, simultaneously. Maybe there will be a branch that deals with the humanitarian aspect and a branch that deals with the refugee, but there's no reason to do them as one and then the other separately and afterward. They could be done at the same time.

Mr. John McKay: We're mining the same evidence.

Mr. Phil Rankin: Sometimes the risk is with things like serious problems, such as people with kidney problems and medical things. There's no way in the world they're going to survive if they go back, but it has nothing to do with their politics or the fact they're going to be arrested. There are other issues going on.

Mr. John McKay: That's a valid concern. If you could get it into either three points and one hearing or one hearing and three points, if you will, and then you would have brought the time line in the system down to a reasonable time line— Everybody on all sides of the issue agree that the system is way too long. Then you could deal with removals on an expedited basis.

Mr. Phil Rankin: I think they're worried that you're going to increase the number of people with access who don't have refugee claims to make but might have some humanitarian things they'd like to argue at the board. Now that you've expanded the board's jurisdiction, you're actually creating a bit of a monster.

Mr. John McKay: But you've also got the same pool, regardless, don't you?

Mr. Phil Rankin: Yes.

Mr. John McKay: You've got some 30,000 people coming in and you've got to deal with them one way or another.

The Chairman: Mr. Reynolds.

Mr. John Reynolds: I have just one point, Mr. Chairman. This is about the fact that they're not welcome at the detention centre. I wonder if it's possible for us to maybe, through the department, ask the question of the facility: is there a list of people who are unwelcome in the facility? If so, who's on that list? It's just to clear that issue. I think it's a very important issue.

Mr. Phil Rankin: I think the issue came up about adjudication by videoconferencing. That's another issue that I realize is now becoming very popular to deal with these facilities that are in remote areas like Laval. But I don't think you get a satisfactory hearing that way any more than we would today if we were talking by a videoconference.

Mr. John McKay: I would be interested on your take on my question, because I tend to agree with you. I've been practising law for 22 years. A video is a very poor substitute for a hearing. It strikes me that it's a useful tool, but it's not the tool you always want to go to.

Mr. Phil Rankin: Well, not if you're going to be detaining or not detaining people. I think you want to actually see the person. I don't think a TV does it for you.

Mr. John McKay: Certainly not on issues of liberty.

Mr. Phil Rankin: As Madam Augustine pointed out, there's the question of whether people come in handcuffs and manacles. It may be that in front of the adjudicator, when they actually walk in the room they're not in manacles, but I can say the general rule is that people moved through Vancouver immigration are always handcuffed. They are always released in the hallway, brought into the room, sat by counsel, and then the hearing opens up. I've often seen that going on when the adjudicator was there, but it is the rule to move them just like criminal prisoners, whether they're criminals or not, in a handcuffed fashion in the immigration facilities, unless they've been released on bail and come with counsel.

• 1715

If they've been released on bail, I just bring them to the hearing room, but if they're not released from counsel they come in handcuffs. Then they're released sometimes right at the door, or you can hear them undoing them outside in the hallway.

So I felt a misleading answer—maybe not intentionally misleading—was given on the adjudication issue.

The Chairman: Thank you very much.

I might note to you, Mr. Reynolds, that the ministry's representative at the back of the room has been scribbling away furiously. I think he has recorded your request and we'll get that information.

However, we will be making a visit to the centre and we can also inquire while we're there.

Mr. John Reynolds: We'll have to find out if we're all welcome first.

The Chairman: That's right.

I'm going to terminate the forum at this time and thank you very much.

Mr. Phil Rankin: I wonder if I can file one thing with you. I looked at recommendation 146, which I call the zero tolerance recommendation, and the idea you could be denied entry outside of Canada without any review. I cut out some of the recent stuff on American immigration officers getting the same kind of power. I'm sure you're all aware of them, but I want to leave them with the committee if you want to hear some sad stories, such as people who admitted to smoking marijuana 30 years ago, more or less when Mr. Clinton admitted doing it, banned for life in the United States. A lot of power is given to people, and I just think recommendation 146 is a serious problem.

The Chairman: Thank you very much. That will be passed on to the clerk and we can make copies and distribute them.

Thank you. The meeting is adjourned.