CITI Committee Meeting

STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION

COMITÉ PERMANENT DE LA CITOYENNETÉ ET DE L'IMMIGRATION

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, April 1, 1998

• 1554

[English]

The Chairman (Mr. Stan Dromisky (Thunder Bay—Atikokan, Lib.)): Order. We'll start the meeting formally in 30 seconds. Not all the members are here. I don't know whether some of them are anticipating a vote, but that might be the reason why they're not appearing. There is a vote pending, but we just don't know exactly when the bells will start ringing. I think we might as well go right ahead simply because we have a very elite group of witnesses here today and they have a lot to share with us.

I will now officially open the meeting, pursuant to Standing Order 108(2), 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.

• 1555

We're very fortunate that we have these witnesses with us today, including François Crépeau and France Houle. One is a professor of law and one is an immigration lawyer. From the Toronto Refugee Lawyers Association, we have Michael Crane with us. From the Metro-Toronto Chinese and Southeast Asia Legal Clinic, we have Avvy Yao-Yao Go with us. She is an immigration lawyer. From the Canadian Bar Association, we have Gordon Maynard with us from Vancouver. Welcome. Maybe tomorrow you will catch up on your sleep, Gordon.

All right. Our five witnesses are here. We will start with François. It's a round-table format. If each of you wants to make a presentation, you may do so. When you are all finished, the members of the committee will start. When someone introduces the first concept or focuses in on a specific area of concern, that could be the topic on which the remaining members will focus until that is exhausted. Then we'll go on to another topic. There will be no specific order. It just depends on the committee members and on whether they want to ask you a question.

François, are you ready to start?

[Translation]

Mr. François Crépeau (Professor of Law, University of Quebec at Montreal; Individual): First I would like to thank the committee for inviting us to make a presentation on this issue. We are doing so in response to the report tabled at the time of the consultations the Minister held in Montreal a few weeks ago, where we submitted a report on the refugee protection issue.

For your information, you will find biographical sketches at the end of the report that we submitted when we arrived earlier. We apologize for any errors and omissions you may find in the report. I found a few myself and they were mainly due to the lack of time that we had to prepare the report.

We will essentially address the issue of the treatment of asylum seekers at ports of entry and, in particular, the detention of asylum seekers at port of entry to Canada. To place this issue in context, I would like to point out that the number of asylum claims in Canada has been relatively stable for a number of years at around 20,000 to 25,000 per year. The number has stabilized not only in Canada, but in Western countries as a whole, and has even fallen sharply in many countries.

One of the reasons for this stabilization or decline in the number of asylum requests is the set of measures that Western countries, individually and collectively, have implemented inside and outside their borders to limit the number of asylum seekers entering the country. Domestic measures include expedited proceedings, the concept of manifestly unfounded request and also readmission agreements between countries.

Outside national boundaries, the measures that Western countries have taken include, for example, visa requirements for nationals of all countries that produce refugees and criminal sanctions against carriers that allow asylum seekers to disembark without appropriate documentation. Germany and other countries also grant temporary protection status that prohibits recipients from seeking refugee status. Other measures include economic cooperation agreements such as the Puebla Accords on relations between North and Central America, which contain chapters on controlling emigration from Central American countries, among others.

For most Western countries, and here I refer you to the studies that have been conducted on international relations, no major increase is anticipated in the number of asylum seekers over the short or medium terms. When we consider the Canadian situation, we see that the refugee status granting rate has been relatively stable over the past few years at 50 percent. That rate has tended to increase in recent years. Canada thus grants effective protection to a large number and to a significant percentage of persons who seek asylum at its borders.

• 1600

The Trempe Report recommends that asylum seekers be detained at the port of entry to Canada when they are unable to obtain provisional status. Among other reasons, provisional status is apparently denied when it is felt that asylum seekers do not have their documents, and have thus destroyed their identification or travel papers, and do not cooperate with authorities in determining their identity or itinerary.

The purpose of this measure is no doubt to combat the destruction of documents in transit, mainly in airplanes, when people travel to Canada. We feel this measure is unjustified, unfair and, perhaps more seriously, ineffective.

Why are documents destroyed by many asylum seekers entering Canada? Documents are destroyed because these people are afraid. Who are they afraid of? They are afraid of the smugglers who helped them find the documents, if they are false, and who recommended that they destroy them, failing which they might be turned back immediately. They are also afraid of endangering their family when the documents are borrowed, from family members, for example. And often, and especially, they are afraid of being removed to the third country where they transited or, which is more serious, to their country of origin.

I believe, and this is the conclusion we reach in our report, that implementing a measure such as detention in the case of non- cooperation with immigration authorities at the port of entry will have no effect on the destruction of documents, first, because fears will remain intact whether the documents are destroyed or not and, second, the cooperation that is expected of asylum seekers will predictably come mainly from the most mobile, most informed and least traumatized individuals, and there will be a serious risk of detaining people who are most in need of protection, those who are the most confused, the most traumatized, the most tired or those who most fear smugglers or being turned away. These people may not cooperate and will be confused when they do, and we may well find that they do not cooperate sufficiently and that they are detained and denied provisional status.

Furthermore, asking a person who is fleeing a country to cooperate with Canadian immigration authorities in obtaining identification and travel papers from the authorities of the country they have fled is asking a lot when those people genuinely fear persecution. Here again, the result may be a refusal to cooperate, the consequence of which will be detention. In many instances, those who do not cooperate will be people whose greatest fear is persecution in their country of origin. The report of course contains a much more detailed argument on this point.

The Trempe Report states at page 89:

It would be naive to imagine that Canada can continue to adequately fulfill its international obligations without adopting the safe third country concept.

The phrase “it would be naive to imagine” is the only justification offered for reintroducing the safe third country concept; no other real explanation is provided. We feel that, in the current state of the proposal contained in the report, the safe third country concept both has very little justification and is dangerous, mainly for the asylum seekers who should be protected.

On the one hand, the criteria for establishing what a “safe” third country is are clearly inadequate. The European models in this area have been extensively analyzed, and the Trempe Report provides no improvement on the subject. Perhaps we can discuss the details in a moment.

On the other hand, removal to third countries that have been abstractly determined as safe could place Canada in violation of international obligations if, after the person has been removed, it appears that the country in question was not a safe country for that particular person, and that that person therefore actually needed protection, which we will not be able to know at the port of entry.

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The proposed measure is an automatic measure, which will be implemented by an immigration officer at the port of entry, at the airport. That officer will have no training in protection and no discretion to hear the request for protection made by the person in question. The immigration officer will merely note that the person comes from France, Germany or England and tell that person to get on the return flight.

The Ward decision by the Supreme Court showed that no country, even an apparently democratic country that protects human rights, is safe for everyone. The Ward decision concerned Great Britain. The German list of safe third countries includes Ghana. That means that if Canada's list of safe third countries includes Germany, a Zairian who has transited through Ghana and Germany on his way to Canada will be immediately removed to Germany, which will then remove him to Ghana. Who will be concerned with determining what Ghana will do with this Zairian? It is very possible that he will be removed to Zaire, although no one will know since the proposed measure provides for no case monitoring mechanism either here or in Germany.

Many asylum seekers, and mainly those who need protection, will clearly prefer to be detained in Canada for failing to cooperate rather than risk being removed to a safe third country. This could increase the number of perfectly pointless detentions and result in more destroyed documents. I cited the case of a Zairian a moment ago. If I were that Zairian and I was afraid of being sent back to Zaire through Germany and Ghana, I would destroy my documents in the airplane between Germany and Canada so as to be detained in Canada rather than risk detention or torture in Zaire.

I'll now give the floor to France Houle, who will continue our presentation.

[English]

The Chairman: Go ahead.

[Translation]

Ms. France Houle (Immigration Lawyer; Individual): To continue on the notion of a safe third country, still in the context of persons seeking refugee status, people who arrive at a port of entry in Canada will be examined by a status determination officer. When they claim refugee status, the officer will determine whether they come from a safe third country, and if they come from a safe third country, they will be returned to that country.

At that point, for a person who fears persecution, the problem that arises is this: that person will not want to get back on the airplane. He or she will start shouting or adopt behaviour which the plane's captain will not want to allow aboard the aircraft. Officials will have to wait for the next plane to remove the person. If the same thing occurs again after 24, 48 or 72 hours, that person will remain in the transit area at the airport and will be unable to move. He or she will have to stay there.

In the Deghani case, the Supreme Court ruled that a person who is in the transit area is not being detained. That person is at large because he may leave if he wishes. But what does that mean for a person who fears persecution?

In the particular situation of status claimants, the notion of being retained at the airport is false. The person is not free. He is being genuinely detained at the airport, and he should be recognized as such, and this person should be entitled to procedural guarantees, as is the case of any person who is detained.

In the same spirit, it should also be recognized that we do not know what goes on when these people are in the transit area, and we should find out. If they are in this area and we don't know what's going on, we don't know whether they need protection. To determine this, an NGO representative should be permanently stationed at the airport to help these people defend their position, with a status determination officer or, which would be preferable, possibly a protection officer from the new agency. Every person seeking refugee status in Canada should be able to see such an officer.

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This is the first point on detention as such: it must be recognized that being held at an airport amounts to actual detention.

The second point concerning detention is this. You have no doubt heard about this a number of times. No one can be detained indefinitely in Canada. The Singh affair reminds us that the principle of freedom is a fundamental principle in Canada, that it is one of the principles of the rule of law and now of section 7 of the Canadian Charter of Rights and Freedoms. Consequently, indefinite detention may constitute a violation of the principles of fundamental justice.

To improve the existing system, there must absolutely be statutory provisions clearly stating the reasons for extending detention. The IRB recently issued directives on this matter and they would be a useful guide.

For example, it could be stated that the detention procedure is a new procedure at each hearing and does not constitute a check to determine whether the reasons previously given are still material. More than that is needed.

It would also be consistent with the principles of fundamental justice to provide that indefinite detention is unacceptable if it is not justified. This is the case, in particular, when asylum seekers have no control over events and are unable, for example, to expedite the processing of information.

This is all we have to say on these points. Thank you.

[English]

The Chairman: Thank you very much.

Ms. Avvy Go.

Ms. Avvy Yao-Yao Go (Immigration Lawyer, Metro Toronto Chinese and Southeast Asian Legal Clinic): Thank you very much for allowing me to appear before you today. I appreciate the opportunity, but at the same time I would also like to point out that in our clinic, like many other organizations that have been speaking out against the Not Just Numbers report, we are a bit disappointed that the committee has chosen not to hold a hearing on the report as a whole but rather just focusing on one particular aspect, looking at—

The Chairman: That will come later; don't rush us.

Ms. Avvy Yao-Yao Go: Okay. But I want to stress that, because you cannot look at the issue of detention removal without looking at other issues that are mentioned in the report. That was why in our written submission we make references to other parts of the report that will have an impact on the detention removal issue in the end.

As you will also see from our written submission, we actually spent a lot of time looking at the issue of public opinion because we think there is a strong link between public opinion and the government policy on immigration issues. It is our position that the Immigration Act is probably one of the most politically volatile acts of all, because the Immigration Act is constantly in the news. and is most susceptible to changes in the political climate. It's one of those areas where public opinion, as opposed to sound policy development, forms the basis of legislation. Within the context of immigration law, the issue of detention and removal is probably the area where public opinion is being expressed most constantly. Public opinion in this area is in turn often influenced by the media portrayal of immigrants and refugees.

In our submission we looked at the issue of how the shooting at Just Desserts, one particular shooting, can then later transform into Bill C-44. That's not the only example of how a particularly high-profile media case involving one or two immigrants can have such an impact on how government changed the immigration policy.

We had a recent meeting with some officials from the Ontario region Canada immigration office, and they were showing us figures of detention and removal in Ontario between 1993 and 1997. Going back to 1994, there was a shooting of a police officer in Toronto, Todd Baylis, by a guy named Clinton Gayle, who was a Jamaican immigrant who had been in Canada since 1977. In the year that follows, you see a 200% increase in jail days of detention in Ontario. Then the next year it was the Just Desserts shooting and you see another 15% increase in jail days of detention in Ontario.

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So what can we learn from this? Are we trying to suggest that maybe more illegal immigrants and refugees were found in Canada within those two years? Or was there a sudden increase in crime committed by refugees and immigrants? I don't think so. It was because of two very high-profile shootings. As a result of that, adjudicators and board members decided they didn't want to be the person to release the next Clinton Gayle, so they just detained everybody or detained as many people as they could.

So detention and removal is very much an issue that has to be looked at in this context. Unfortunately, in this report, rather than trying to address those kinds of contextual issues and trying not to reinforce those stereotypes of immigrants and refugees as cop killers or drug dealers, we find a lot of the reinforcement of those kinds of stereotypes of refugees trying to defraud the system, immigrants who are coming here with.... Even immigrants with money must have come here with some kind of Triad connection—you find comments like that all over in the reports.

It was on that basis that they came up with recommendations around detention and removal. So as a result of that, it casts a very wide net. It includes a lot more people who can potentially be detained and removed, including refugees who may have missed a couples of days' deadline or probably did not do their medical examination. Or it could even include some first-tier family members who come here and then find out that they have lost their status.

One example that we gave in our report is the immigrant women who come here as sponsored spouses and fiancées. Those people would also be given provisional status if there was sponsorship breakdown, because of some kind of abuse or whatever, and then they would also potentially face detention and then removal. I would like to remind the standing committee that you have actually looked at that issue before, a couple of years ago, and I was here making deputations on the issue. The committee came up with a report that said we have to look at the issue of gender discrimination, and women who face sponsorship breakdown because of abuse shouldn't be deported. We should give them a chance. Give them a three-year minister's permit so that they can establish themselves in Canada and in the meanwhile try to finalize their status. That was the recommendation from this committee.

But if you look at this report, it's not going to happen. It's not only because these women are subject to detention and removal when their status is lost, but also because the report is going to get rid of the humanitarian and compassionate process for people who have lost their status, or failed refugee claimants or other people who otherwise don't have any status, to try to normalize their status in Canada. They will no longer have that opportunity, because this is what the report says.

I think that's very dangerous, because no matter how hard we may try, or how hard the government or the bureaucrats may try, there will always be people who for whatever reason will be here in Canada stuck without a status, and for the longest time. Unless you have a way of trying to legalize their status, they will be here forever without any status.

So rather than just looking at how to get rid of these people, I think we should really seriously think of what are the ways of improving the system and improving the humanitarian and compassionate considerations among other things. Unfortunately, this is not what the report does. So what I would suggest this committee do is to look at all those issues, and maybe as a consequence of that, the detention and removal issue.

Those are my recommendations.

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The Chairman: Thank you very much.

Michael Crane.

Mr. Michael Crane (Representative, Refugee Lawyers Association): Good afternoon. I want to focus on some of the recommendations that are made in the report. I'm sure you've heard some comments on those points before.

I'd particularly like to talk about the provisional status recommendation by the committee. In the testimony that I read, the transcript of the proceedings, the review committee felt that the provisional status would be a great step in promoting efficient removals and avoiding delays.

It's my submission that it is not going to be effective. The provisional status is not much different from what exists today. Most persons who are in the situation of having lost a refugee claim and are awaiting their appeals and are awaiting PDRCCC reviews are under conditions already. Breach of those conditions may lead to detention.

In that respect, the provisional status is not adding anything new. What it is designed to do—this was put yesterday by Amnesty International—is create a different status. The first is provisional status and the second one is detention. If you do not comply, you are detained. The scheme they propose is that you will be released if you can put yourself into a situation of compliance.

They feel this is a better system because it is transparent and everybody will understand it, but it's been my observation in reading the testimony before this committee that in fact it's a very difficult status to actually explain, and I don't think it's going to enhance any transparency.

The difficulty with using detention as the only method of compliance is that it is very crude. It's very final. The compliance may not be capable of being rectified.

For instance, if someone is working illegally—that happens with refugee claimants from time to time—he or she may not have applied for an employment authorization and then may get picked up by an immigration officer and be detained.

According to the scheme that's proposed by the Not Just Numbers report, once they can establish that they're in compliance they'll be released, but there's no way you can establish that you had a good reason for working illegally. And presumably either your detention will be perpetual or the scheme as suggested isn't going to work very well.

They also suggest other points, like getting rid of the adjudication branch and having review officers who determine your status as well as your release and who are within the department. That was actually the system before, in 1993.

I was an adjudicator myself for three years at the Mississauga office. Technically, adjudicators were part of the immigration department. A Federal Court decision said that they were independent for all constitutional purposes. That could have gone either way, that decision.

One of the reasons the Federal Court felt they were independent was that when it looked at the structure and history of the organization, it felt that at the end of the day Parliament had intended—by virtue of having a hearing that was quasi-judicial—an independent body and that adjudicators should be treated as such.

That will not necessarily be the case in the new system. It will not necessarily be independent. It is fundamental that if liberty is going to be considered there be an accessible review by an independent decision maker. In the report they do recognize the need for some independence. They're not clear on the extent of it.

Liberty for them is related to provisional status, the person.... And once the person decides you've lost your status it's not clear exactly how he comes to that conclusion. Is there a hearing before him? Or does he review documents and make that determination? And is it the same person who's going to be considering your release?

For historical context, this was the original system before 1978. You had officers called “special inquiries officers”, who received reports, made determinations on the reports, and adduced evidence from the person. They could detain and order deportation. The whole kit was done by one person. So really, the historical dimension is worth looking into, I think.

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Parliament changed that in 1976, and it came into effect in 1978. It was obviously decided that this system wasn't right, and since this was before the charter, we can't really blame the charter for why it was decided to break it out into a hearing system. But that does not mean it has to be the same system it is today.

The Not Just Numbers review group said it is a good idea to have persons inside the department considering liberty. I respectfully suggest that this committee reject that notion.

They also indicate that, for practical reasons, there should be fewer layers to administrative decision-making. They don't identify what that practical reason is. Professor Crépeau mentioned that their analysis for third-party countries was a little weak in terms of justification. It's the same thing for a flatter organization. They don't indicate why, because their structure has three layers. You have the status officer, the appeal officer, and then the Federal Court or some kind of review. It's not a system that's going to be flatter, and the review systems are inside the department.

I'd also like to talk very briefly about a couple of points that were brought up yesterday. I was watching yesterday's submissions, and there was some discussion about adjudicators in Mississauga in particular being moved downtown, and whether that was a good thing or a bad thing. A representative from adjudication referred to the fact that some of the problems will be avoided because we'll be able to have video-conferencing for detention reviews. I think that's a great mistake, and I respectfully request that the committee think about it. It's not a good idea to have one party on a video and another party actually talking to the decision-maker. If a detained person is represented, that difficulty won't be as severe, but for the unrepresented detainee who is way at the other end of a video camera, he's at a significant disadvantage. It's not a level playing field, and it's not right.

There was a lot of discussion, both in previous sittings of this committee and in the Not Just Numbers report, about the immigration department's concerns that applying for travel documents is one of the reasons for delayed removals and that there is a need to get some sort of document or passport application from a claimant early on in the process. Amnesty International and UNHCR are against that because they feel it sends out the wrong message. The only suggestion the Not Just Numbers people have is to detain anybody who is not cooperative with documents. It's my submission that there has to be a better way.

There are several points in the system where it would be in the person's interest to cooperate with the immigration department. One thing that has not been brought out is that persons who appear at refugee hearings are generally advised by legal counsel to provide documents for their claim. They obtain travel documents or identity documents that the refugee board accepts as credible, but there is no real interaction between the immigration department and the documents that are provided to the refugee board. It seems to me that there is one source where the immigration department could obtain documents that relate to identity.

As you may be aware, for the purposes of risk assessment in the PDRCCC, the person has to fill in an application form at another point. On the form itself, there is actually a box that says “Have you provided identity documents with this application?” Under the regulations, the immigration department is not required to make a request for identity documents or travel documents, but there is another point where perhaps there could be a balance struck. If someone wants to have a risk assessment, maybe it would be appropriate for them to provide the immigration department with something at that point to indicate that they'll provide some facilitation if removal comes about.

On another point that might be discussed, if the result of the PDRCCC process is negative, they've done the appeal and that's negative, and they've lost the refugee claim, technically they're no longer entitled to a work authorization. This is the case even though the reality is that many people aren't removed for a couple of years or three years—and that's not always because of lack of cooperation. What happens is that this increases the cost of the whole system. Persons either have to work illegally or not at all, in which case they're returned to the welfare rolls.

I once had an occasion to talk to a Department of Immigration policy man. I asked him why there isn't some thought given to that. He said the reason is that the system isn't supposed to work that way, that once the PDRCCC is negative, they're supposed to be gone. We all know the reality isn't like that. It seems to me that this is another point where it would be in the interest of the person concerned to obtain a work authorization. Most persons who are in that situation do want to work. It's a fallacy that they'd rather just stay on welfare. It's ironic that they're being put on welfare. It is a recognition of the fact that removal does not occur right away, but there's a spot where, again, you would be able to give something to the failed claimant and he might be able to give something back.

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Here's a final word about PDRCCs. The current system is that you may make an application, and then there's a review done at some point. They're not just numbers. The report recognizes that there's an obligation recognized by the Federal Court to have some kind of risk assessment. That was as recently as a few days ago with Mr. Justice Gibson. They recommend that the person should be given two days' notice. That's not enough time.

Currently, the system is such that you are expected to apply either through a humanitarian review or 15 days after you are notified of the negative decision by the refugee board. There are a couple of flaws with the current system. First, it can be done at any time; it's not related to a pre-removal. It's often done while the appeal is pending from a negative refugee division decision, which is just silly, because once the Federal Court decision is over, it could be several months later.

The second thing is that the immigration people will not tell you which country they're considering removing you to, so you have to potentially address several possible countries. It's usually your country of nationality, but on the PDRCC form they're very clear in saying that it could be one of four countries, which are the criteria specified in the act.

If the person were given some notice as to where he was going to be removed to and when he was going to be removed, it would enhance the credibility of that process. Right now, most people think that the PDRCC system is a bit of a joke. Very few people are accepted, and the PCDOs basically just rely on the refugee division decision for their ultimate finding.

Thank you very much.

The Chairman: Thank you very much, Michael.

Gordon Maynard.

Mr. Gordon Maynard (Member of the Executive, National Citizenship and Immigration Section, Canadian Bar Association): Thank you.

Good afternoon, Mr. Chairman and members of the committee. Thank you for the invitation to the CBA to present submissions pursuant to recommendation 155.

We have distributed to the members of the committee the national CBA report, “Response to Legislative Review Advisory Group Report”. This was a CBA document that was published earlier this month, in March. It's the one with white borders on the side. I see everybody picking up ones with dark blue covers. I hope you received it.

Ms. Raymonde Folco (Laval West, Lib.): Mine is dark blue.

Mr. Gordon Maynard: It was supposed to be sent over from the national office this morning.

Oh, you've got a dark blue cover.

Ms. Raymonde Folco: We got dark blue. Mine is thinner than yours.

Mr. Gordon Maynard: Mine is English and French.

Ms. Raymonde Folco: Oh, that's why.

Mr. Gordon Maynard: You have the unilingual one.

Ms. Raymonde Folco: Are they the same?

Mr. Gordon Maynard: It should be the same. My copy, at any rate, is bilingual.

Regretfully, I'm not bilingual, having been born and raised in the cultural oasis that was Vancouver of the 1950s and 1960s. I don't speak French, so I'll deliver my report to you in English, with regrets.

The CBA paper has been reviewed by the legislative and law reform committee of CBA. It's approved as a public statement of the citizenship and immigration national section. The report is comprehensive and wide-ranging, as befits the scope of LRAG's Not Just Numbers report.

The preparation of the national CBA report was a considerable undertaking. The legislative review advisory group paper was distributed to our membership across Canada through our constituent provincial sections. The membership reviewed the advisory group paper.

Submissions and commentary were received back. The national executive, of which I am a member, and the national office then consolidated and edited the responses into a coherent report. This task was considerably difficult given the range of the advisory group report and the volume of the recommendations.

You will note in the general comments section at the front of the report, under the executive summary, that our section is of the view that the advisory group report is best regarded as a discussion paper serving to stimulate debate. The advisory group's recommendations cannot serve as a basis for legislative reform without further extensive public consultation.

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At many points in its report, the advisory group raises legitimate issues. That is not our concern. We have significant reservations respecting many of the recommendations of the advisory group and the assumptions made throughout their report.

At points, the advisory group makes recommendations which are innovative and of merit, and our membership endorses those recommendations. In other areas, our membership was split or uncertain, and this should not be surprising.

In particular, the advisory group's chapters 8, 9 and 10, dealing with the issues of detention and removal, review processes and the use of discretion...it was in these chapters that our membership clearly and forcefully expressed its rejection of the advisory group's recommendations.

The basis for our concerns is already before you, not just in our report, but in the statements and comments of representatives of the Department of Citizenship and Immigration who have appeared before you, and of the Auditor General. You have had the benefit of hearing from individuals, including Mr. Flageole, Mr. Gaudet, Greg Fyffe, Brian Grant, Susan Leith, Neil Cochrane from the enforcement branch at Citizenship and Immigration, Roman Borowyk, Georges Tsaï, and John Sims.

I have read all of those transcripts, and there are common threads running through all of their submissions, in particular, the processes of detention, removal, review and determination of admissibility. These are core functions of the Department of Citizenship and Immigration and the independent tribunals that hold jurisdiction for these determinations. These functions draw together disparate but related elements of Canadian law, international law, international obligations, financial considerations and risk management.

These processes require a system that appropriately reflects our statutory definitions of inadmissibility and grounds for removal, respect for the status of immigrants in Canada, compliance with international obligations to provide protection to those seeking and deserving such protection at our borders, and compliance with judicial and charter standards for fundamental justice and due process, all the while maintaining a framework that meets budgetary restrictions and political pressures flowing from public expectations.

It is a daunting task that has been on the best minds of the department for many years. I thought it was best put by the Auditor General's report, in stating that societal values have placed “inherent limits to the improvements that can be made in the performance of the existing system”, and in the comments of Mr. Greg Fyffe, when he spoke of the department always seeking to manoeuvre around two fixed, important points: first, the fixed point of law and the charter expressions of due process and fundamental justice; and second, the fixed point of fiscal realities, the need to employ dollars efficiently in their management policies. These are both accurate, credible statements that speak volumes, notwithstanding their conciseness. They are important statements.

The CBA position is that Canada has in place determination processes that are fundamentally sound, with few exceptions. Is the system operating efficiently? No, not at 100%. We are here with our report—and myself—today, prepared to endorse or suggest solutions for improvement, solutions that we think will be effective without impairing the integrity of the existing processes.

I wish to make two comments based upon my review of transcripts over the previous week's meetings of this committee and questions brought forward by members of the committee.

First, I have read repeatedly in the transcripts of concerns with respect to humanitarian and compassionate applications. There have been repeated comments that the filing of humanitarian and compassionate applications stops the removal process and starts the process over, that it acts as an appeal process on its own.

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Let me disabuse you of this notion. Filing an H and C application does not stop removal, ever. Anyone can put $500 in an envelope, fill out a form, and hand it to an immigration officer. It has absolutely no legal impact on the removal order that exists against that individual. There is no provision in the Immigration Act that requires that removal be stayed as a result of filing the application.

Immigration is very clear, and the courts have been clear over the years, that a request for the minister's exercised discretion does not take precedence over a statutory duty to remove. The only thing that stops a removal order is a Federal Court stay. If somebody, as a desperate measure, wishes to submit an H and C application on the tarmac, the immigration people will gladly accept the envelope and the $500 and suggest that you go to Federal Court and get a stay order. Anyone who is sufficiently desperate to bring a last-minute stay application to the court will, the vast majority of the time, be sadly disappointed by the court's response.

There are exceptional circumstances in which the court will issue a stay, but it does require exceptional circumstances. Somebody merely saying I have filed an H and C application, I have been here a long time, please don't remove me even though I am criminally inadmissible and I've gone through the appeal processes, will not be granted a stay. It's a very tough test. There are few exceptions to that.

I worry that somehow H and C applications and their effect are being misunderstood, because an H and C application is a very important tool in the immigration process. They deserve to be there, and they deserve to be broad, the full capacity for discretion to be exercised. But I don't want this committee to have the view that somehow they are used as a stay against legitimate removals; they are not. If you want to file an H and C application, file it in a timely manner so it can be determined. Filing it at the last moment won't help you. That's reality. Okay?

Secondly, when I reviewed the transcript of the legislative review advisory group members' statements before you, there were some comments that concerned me—several, in fact. The one that disturbed me most was the comment from one of the members that this committee, in formulating their recommendations or report, should have an ear to their constituents. Please don't misunderstand me: you are all representatives of your constituents; I am one of your constituents. But there is a great gap between public perception and informed opinion.

In immigration matters, the public is not well served by either the media or regretfully some of the politicians who fail to adequately inform the public of issues and process but rather rely upon sensationalism and half-truths. This opinion, my opinion on this matter, is shared by others. I read in the Globe the other day, the other week, I believe it was the director of the corrections branch who in a public statement warned of the dangers of legislative reform regarding sentencing and prisons, based on public perception of their benefits to controlling crime.

In the Supreme Court of Canada, in November 1997, there was a full-panel decision of the Supreme Court of Canada. The case is Phillips and Parry versus the Queen. This was an appeal from criminal conviction. It concerned the mine managers at Westray, where we had the Westray explosion, in Nova Scotia. Two mine managers were criminally charged and were convicted.

• 1645

Those convictions were reviewed by the various levels of courts, and ultimately by the Supreme Court of Canada. In the end, the Supreme Court of Canada set aside those convictions because of the influence of public opinion on the conduct of the crown. I want to read to you the comments of the Supreme Court because I think they're apropos. The court said:

...it is especially where pursuit of truth is righteous that we must guard against overreaching on the part of those charged with the authority to investigate and prosecute crimes. We cannot be tolerant of abusive conduct and dispose of due process, however serious the crime is charged. High profile trials, by their nature, attract strong public emotions. In our society the Crown is charged with the duty to ensure that every accused person is treated with fairness. It is especially in high profile cases, where the justice system will be on display, that counsel must do their utmost to ensure that any resultant convictions are based on facts and not on emotions. When the Crown allows its actions to be influenced by public pressure the essential fairness and legitimacy of our system is lost. We sink to the level of a mob looking for a tree.

In the realm of immigration law we are no less susceptible to emotional responses and the danger of sacrifice of higher principles. Let us guard against being the mob.

Those are my comments. I look forward to your questions.

The Chairman: Thank you very much. Thank you all.

We will start now with Mr. Reynolds.

Ms. Raymonde Folco: Mr. Reynolds, I'm going to have to leave very quickly this afternoon. Would you mind if I ask my questions first?

Mr. John Reynolds (West Vancouver—Sunshine Coast, Ref.): Go ahead.

Ms. Raymonde Folco: I appreciate it very much. Thank you.

Mr. John Reynolds: No problem.

[Translation]

Ms. Raymonde Folco: I have two questions. The first is for whoever wishes to answer it.

I have been a member of the Immigration and Refugee Board. My experience has taught me that a fairly large number of people who were supposed to appear before the Board members did not appear. In some cases, people appeared, but were late because they had not received a hearing notice as no one knew their address. All this has to do with the matter of tracking, that is to say with what can be done to find out where these people are.

The representatives of the Department of Citizenship and Immigration have told us a number of times that they had difficulty finding claimants before they appeared before the Board and after they were turned down by the Board, in the case of those who were turned down. In your opinion, what would be one way of correcting this problem without requiring claimants to carry an identification card, as is proposed in the Trempe Report?

Furthermore, I would also like to go on record as being opposed to this video-conferencing idea. I don't see how someone who comes from a rural area in a third world country might react to a screen and answer questions when the person asking them is not present. That's a brief aside.

I have an important question for Mr. Maynard, and it is this. When I was a Board member, many people to whom the Board denied refugee status were still in Canada one, two and three years after the fact because they had asked the Department to grant them the opportunity to stay for reasons of risk, for humanitarian reasons on the one hand.

On the other hand, I asked departmental officials to give us a detailed organization chart, and I mean detailed, showing exactly the possible paths of people whom we had accepted, but denied status. On that chart, there were arrows showing us that they were entitled to seek remedy from the Department when their lives were in danger in their country of origin or in the country they were fleeing, and also for humanitarian reasons.

• 1650

The organization chart showed a loop. At one point, at the end of the process, the individual could request that the process be restarted. When we questioned officials, if I correctly understood, they told us that the organization chart reflected the actual situation.

But if I properly understood what you told us, Mr. Maynard, that is not at all the case. I would like to hear what you have to say on that. Thank you.

[English]

Mr. Gordon Maynard: Do you want the first question question answered first or the second question?

Ms. Raymonde Folco: The first question is addressed to anyone who wishes to reply.

[Translation]

Mr. Michael Crane: You say there are still problems in the case of people who do not appear before the IRB, who change addresses, and so on. It's not that this isn't a problem, but would conferring provisional status be the solution? I don't think that conferring provisional status on these people will enable the system to find them more easily. Having an identification card is useful for the person concerned, but the information won't be any more up-to-date as a result.

The authors of the Trempe Report say that, under their provisional status system, claimants will actually provide this information. If a person does not want to give any information and is not detained, I don't see how we can convince him to provide that information. If people want to disappear, they're going to disappear.

As for the identification card, first, we don't necessarily have the technology and, second, this won't necessarily guarantee that the information is more up to date.

Ms. Raymonde Folco: Mr. Chairman, I may be mistaken, but it seemed to me, when this was presented, that there was some question of an electronic card containing a chip. People with these cards had to slip it into an appropriate machine every two or three days so that their movements could be monitored. If I properly understood, they in fact had a ball and chain attached to their leg.

So it wasn't just a small identification card like the ones I had when I was young, a little piece of paper with a photograph on it, but something much more technologically advanced. It seems to me that you can be for or against this kind of concept, but, clearly, if you have a smart card and have to put it into a machine every two or three days, we'll be able to monitor your movements. I thought that was quite clear.

Mr. Michael Crane: I agree with you that, under this system, people have to report fairly often, twice a week. It will be effective. However, I didn't understand from the Minister that this technology was available. But you're right: if it existed, it would definitely be a fairly effective system.

Second, according to the Trempe Report, this system is not necessarily related to provisional status. It could be imposed immediately if that were possible today. It's already being done. Adjudicators require some people to report at regular intervals.

• 1655

[English]

The Chairman: Would anyone else like to contribute to that request?

Ms. Avvy Yao-Yao Go: I have a question.

The Chairman: Go ahead.

Ms. Avvy Yao-Yao Go: I remember several years ago when the Tories were in power, and in Bill C-86 they introduced the idea that maybe all immigrants should carry this ID card. And they actually passed a law and spent millions and millions of dollars to try to design an ID card. But after spending all the money, they then realized that not only were they not going to have a card that they could consider as foolproof, but also it didn't serve the purpose they set out to achieve in the first place.

I think there was a lot of concern at that time. People came out and said they were against this ID card. Coming from Hong Kong, I also have this experience of living in a colony where you have to carry this card to show that you're a citizen because the police are always snatching the refugees from mainland China. That was one of the concerns of people, of having some members in our society carry some kind of card with them in order to—

Ms. Raymonde Folco: Forgive me if I interrupt you, but I'm going to have to go in four minutes. My question is not how to criticize this, because I have criticism towards it as well. My question is how can we get rid of the problem, and the problem is how do we track these people—where are they? They're out there somewhere. We don't know where they are. These are real problems.

Ms. Avvy Yao-Yao Go: It is and it isn't, because I think there seems to be an assumption that the majority of these people want to go underground. If you look at the clients who come into my office, I'm sure it's the same for everybody here who has seen refugees and out-of-status clients. Their dream is somehow to be able to become a landed immigrant in Canada. That is what they want to do. Unfortunately, for whatever reasons it's something that is hard to achieve for many of them. But to somehow think that they prefer...and therefore they will try to evade the system I think is something we disagree with.

I would want to echo Michael's point that those who want to go underground will go underground regardless of the system. By having a system that is built upon the consideration of a handful, the minority of those people, you are creating the system that doesn't benefit the majority and in fact creates harm for the majority of those who want to go through the system in a proper way. It's not that we're offering a solution, but I think the problem is such that a solution is not as easily found and it's certainly not the one that is being proposed in the report.

The Chairman: Anybody else? Mr. Maynard, go ahead.

Mr. Gordon Maynard: Madam, your memory is probably correct. Immigration law is one of those lovely areas that is quite fluid. It changes all the time. The process is developed or brought into place and then dissolved when a new and better process is devised—one hopes.

There was a time, particularly very early after 1989, after Bill C-55 came in, when removal of failed refugee claimants always involved a review of humanitarian consideration. So it was automatic on every file. One did not need to request it. It was done automatically and often without notice to the individual. Individuals began to understand this and started making formal submissions to be part of that review process.

Ms. Raymonde Folco: With the help of their lawyers.

Mr. Gordon Maynard: Of course with the help of their lawyers. That's our job.

Ms. Raymonde Folco: Absolutely.

Mr. Gordon Maynard: Over the years that humanitarian review process has been altered. It was altered into the DROC program for people who had stayed in Canada for a period of time without being removed. It evolved into the risk review formalized by regulation, the PDRCC review, and the institutionalized H and C review ceased to exist. There probably are still situations where if you're from certain countries the enforcement branch will get concurrence from Ottawa before effecting removal. And this is in some ways an H and C review as well, but dedicated to danger and risk and not on your circumstances in the country.

What I am speaking of in particular is the formal application made by somebody under 114(2) or regulation 2.1 saying “I want the minister to exercise discretion and let me stay in Canada on humanitarian and compassionate grounds”. Filing of that application has no impact. And that is the application that most people are filing. They're saying “Look at me; look at my circumstances. Please don't remove me.” There is no impact on the effectiveness of the removal order.

• 1700

Ms. Raymonde Folco: Mr. Chair, I wonder if I could ask for generosity here from you and Mr. Reynolds, because I think this is an important point.

I think it's important to know what is in the system right now, and whether or not it really works—and I point that way because that's the bottom right-hand corner of the organigram that we got from the ministry. I wonder whether we could ask people from the particular department, the Department of Citizenship and Immigration, to find out how many of these people have asked for a stay of removal on the basis of risk review or humanitarian grounds. How many of these have been accepted? It seems to me that this is very important.

The Chairman: I think that data is available. I think we have it in one of our reports.

Was that a point of order, or just...?

Mr. Steve Mahoney (Mississauga West, Lib.): Well, I wanted to ask her to discuss the agency applications as well, but if Mr. Reynolds wants to go, I'll get out of the way.

The Chairman: Okay, Mr. Reynolds, please go ahead.

Mr. John Reynolds (West Vancouver—Sunshine Coast, Ref.): Mr. Crane, you mentioned that you were here yesterday, so you probably heard Phil Rankin's comments about adjudication. He said it works well in Vancouver but isn't working in Toronto. Since you were there in the past, I assume the problems have been created since then. What is the difference between the two?

Mr. Michael Crane: Well, it's true that I worked there from the year 1992, and it's true that detentions have increased since that time. That's a function of two reasons. One is that for some reason the immigration department has become more aggressive in terms of detaining people. Mississauga is a port of entry serving mostly Lester B. Pearson International Airport, and the port of entry detentions did go up quite a bit at one point. In addition to the persons who were being detained as a result of coming out of the criminal system, more monitoring of immigration cases was done through the criminal process, and that has led to some more detentions.

There is also the appeal division determination of danger, when the minister determines someone is a danger to the public. I'm not sure if this is what they do now, but almost all those persons would be detained by the immigration department automatically when they first started that. I'm not sure if this has been expressed clearly to this committee, but when an adjudicator decides to detain someone under the concept of danger to the public, that's not the same thing as the minister deciding he's a danger to the public. Those are discrete decisions. But if the minister decides that you're a danger to the public, you're often met with an arrest warrant based on the fact that you're a danger to the public, and you will be before an adjudicator. Most adjudicators don't view the fact that you've been determined to be a danger to the public as being definitive or even as all that persuasive, and they'll just look at the information again.

Now, on whether or not there's a big problem about adjudicators in Toronto, they're the same people I used to work with, although there are fewer of them. It is true that a lot of people complain about certain cases, and I think that's an unfortunate result of inertia. There are always going to be people who get detained the first couple of times, and then adjudicators will just continue to detain people. Because there are more people being detained than there used to be, there are going to be more of those types of situations, and that's unfortunate.

Whenever you ask almost any refugee advocate or person who works in the immigration system about comparing adjudicators to any other part of the system, almost always those people will say the adjudicators look good. As a general statement, I think adjudicators always end up coming out better than most other parts of the refugee system or the enforcement system. They motivate their decisions and they're very flexible. There are some who are pretty tough, but by and large they're fairly reasonable.

It is true that there seems to be a bit of change in the tendency, though. For instance, there's a perception that refugee claimants are being detained more, and that's true. On the other hand, not to say that it's super-lenient, but most refugee claimants get out after a couple of months, although there are some who have been detained for over a year.

Mr. John Reynolds: So what you're saying is that there's not much difference between Vancouver and Toronto.

Mr. Michael Crane: It sounds like the ones in Vancouver are a bit more lenient—some would say “lenient” and some would say “reasonable”. But I wouldn't really point to the adjudicators as being a serious problem. Rather, it's the opposite. I think adjudicators are a good part of the system.

• 1705

Again, to harp on something that was mentioned yesterday that the Mississauga adjudicators had moved downtown, obviously they have their own reasons for wanting to stay close to where they live, but there is a legitimate point that when you remove the decision-makers from where the bulk of the work is, there will be a degradation somewhere in the system. Whether it will be expensive because of the transportation of persons who are detained, or whether it's because the adjudicator won't see the body he's discussing....

When I was an adjudicator I wouldn't say it was common, but it was far from unusual to have horror stories pop up. I remember one case where a guy was in a jail for six months and they didn't realize he was on immigration hold. He did not get a detention review. There was a period when that was happening fairly frequently. But again, I don't want to exaggerate that.

Having adjudicators there is a way of keeping people accountable. Immigration does have to justify detention and has to show why the guy is being detained. Having a system where there are not just numbers, as the report suggests, and where you have non-independent people reviewing those decisions is going in the wrong direction.

To be very short about your question, there are external factors that result in longer detentions, but I don't necessarily think the adjudicators are a big part of the problem.

Mr. John Reynolds: Thank you.

I'll ask another question.

I just want to thank CBA for a great report. I think it's very extensive and you have a lot of good material in there.

You mentioned that further extensive public debate should take place now. What would you suggest? The plan now is for the minister to probably come out with some legislation, and that will come to this committee. But would you suggest that maybe the minister not bring the legislation and bring out a white paper so it can be further debated and then go back to her for legislation?

Mr. Gordon Maynard: The problem with debating legislation is there's already legislation. Once you squeeze the toothpaste out of the tube, it's hard to put it back.

The CBA always, perhaps rightly or wrongly, has a high regard for what it can contribute to the debate, but we would rather see our discussions take place when policy is being developed, with discussion papers and debate papers coming out that people have input on, rather than drafting up legislation and then putting it out for public review. By that time the die is, for the most part, cast—perhaps wrongly or perhaps rightly. So I want to see more debate.

Mr. John Reynolds: Mr. Chair, I'll just tell you the Reform Party agrees with the CBA. That doesn't happen too often.

The Chairman: Mr. Mahoney.

Mr. Steve Mahoney: That might force it to reconsider its position.

My question is on Mr. Maynard's points about the humanitarian and compassionate application, and I guess you were reading some of the Hansards and some of the questions and concerns that came up on the issue of the appeal process. I've asked some questions, as have others on both sides, about that process, and while I don't see the humanitarian and compassionate application as being on the tarmac necessarily, although that could occur, that application can be made at any time through the process.

As an MP, I see it in my office at various stages of the process, whether it's very early or at any point. It clearly is an appeal option that these folks have. And I quite agree that if all of a sudden as they're boarding the aircraft to leave the country they decide to put the money in the envelope, etc., that's not likely going to stop that process, hold the aircraft and take them off. But I would suggest that's the extreme and not the norm for the use of H and C.

I'm not an immigration lawyer and have not worked in the immigration field, as all of you have. I came into this serving on both this committee and the public accounts committee dealing with the AG report on this, so I've come to know more than I ever thought I wanted to know about it. But it seems to me the entire process should be based on humanitarian and compassionate grounds right from the beginning. The whole reason you're dealing with a refugee is that person is under stress. The stress could be fear of their life, persecution, torture, any number of issues. So our system should be based on humanitarian and compassionate grounds.

• 1710

Why do you have these layers of appeal that can take 17 or 18 months and perhaps even longer, while a human being sits in some form of purgatory, not knowing where they're going or what they're doing? Could we not compress the whole system, including the appeal, into one basic appeal process where you could adjudicate, make the decision, the determination? I'm sure you've seen the chart they provided us, which had all the different areas they could go to, so they're either rejected as a refugee claimant and then dealt with in that capacity, or they appeal and they go through the process.

It's the time problem that concerns me and the fact that the H and C application seems to be a duplication of a process that's already there. So could we compress it? Could we compress it into a six-month time period, which would seem to me to be more fair to the applicants, less burdensome and costly to the system? It might cut out, I'm sorry to tell you, some of your work, but maybe it wouldn't.

Mr. Gordon Maynard: I haven't seen the immigration department do anything that has cut out my work.

Mr. Steve Mahoney: I'm sure that's true.

So that's where I'm coming from on the humanitarian and compassionate question.

Mr. Gordon Maynard: I wish there were a simple answer to your question, because it seems like a reasonable proposition and it's one I wrestled with in reading your comments from other meetings here.

The amount of review and appeal that exists in the process now is going to vary, depending upon the particular circumstances of the individual, because the amount of appeal and review you get is directly proportional to your rights and entitlements that are being put in issue.

So if we deal with a very simple situation, an American comes across the border and starts working at the White Spot and has no entitlement. An immigration officer finds that person out, gives that person an administrative removal order, no hearing involved, and maybe even drives him to the border and hands him over. That person has no appeal rights. Why? Because there are really substantially no entitlements or rights that he has that are being removed. He's here illegally. He has no entitlements.

On the other hand, an individual who comes to Canada lawfully as an immigrant and lives here for 35 years, and then breaches the Immigration Act and is facing removal, has a right of appeal. That person has a right of appeal to an independent tribunal, the appeal division, which has a right to review the law, the facts and the humanitarian and compassionate circumstances—actually the full equity, all the circumstances of the case. We give that person a higher right of appeal because that person has a higher set of interests that require protection.

Can you collapse those two into a single process? No, because you're dealing with two different kinds of individuals, and there is no collapsing. There is no middle ground there.

A refugee claimant goes in front of the CRDD, the refugee division, because the refugee division is entrusted with the jurisdiction to determine specifically the narrow question: Is this person a convention refugee? That is their expertise. They're not looking at humanitarian grounds. They're not looking at other sources of risk. They're only looking at risk and persecution that is consistent with the refugee definition under the convention.

So it's hard to collapse these things. It's hard to overlap them into a central point. This was a matter the department looked at several years back. They thought, can we have one sort of omnibus application that covers everything, and if so, where do we put it? Do we put it at the front end of the system, or at the back end of the system?

• 1715

Some people talk about giving the refugee division extended jurisdiction to consider other areas of risk not within the convention definition and in that way remove the need for a separate application of risk review or humanitarian and compassion considerations as a possibility. Other people say to give that jurisdiction to the adjudication division when it gives the initial removal review order. Why shouldn't they recognize circumstances of humanitarian and compassionate grounds and do away with the two-step process?

I look at a case where I take an immigrant who has been convicted in Canada of a singular offence that's given rise to a removal order down to the adjudication division in order to get the removal order issued. The evidence consists of “My name is Bob, I'm a permanent resident, and yes, that's my conviction.” He gets a deportation order.

Now there's no defence to that. I'm waiting for the case where I can stand up and say “His name's not Bob. It doesn't exist.” So we go to the appeal division for a full review. Why don't I just go to the appeal division? Why do I have that first layer? In that sense, I don't find the adjudication division to be performing a useful function. But on the other hand, I see the adjudication division having an enormous function to play when it comes to review of detention orders or determination of removal of complex cases of people who don't have rights of appeal to the appeal division.

Is there some streamlining that can take place? Yes. I think with some thought you can find areas of streamlining. But I think the major problem is administrative, not functional. I think the processes that we have in place are solid processes. They make sense. They make sense to me.

But administratively we have problems. And I read with interest Mr. Borowyk's comments regarding information management and the areas that they're trying to expand in order to keep track of individuals and find sources of information so that when the time does come to remove they have this information and they aren't starting from a zero point. That makes sense to me. I say to Mr. Borowyk, “Go ahead. Do that. The more information you have the better.”

Mr. Steve Mahoney: When you say it's in administration are you saying there's a shortage of people?

Mr. Gordon Maynard: I think the Auditor General was correct in talking about the refugee division, when the Auditor General said that at one point, in 1994, I think, the minister recognized that he needed 184 board members and there were only 152, and then two years later they had 154. Now what's the problem there? I think the Auditor General is correct in saying that it's a cost in money and a cost in efficiency to have short-term appointments for people who need training, with a high turnover rate. That's not sensible. We wouldn't do it in business.

Mr. Steve Mahoney: It's like MPs.

Voices: Oh, oh.

Mr. Gordon Maynard: And you're all on a learning curve.

Mr. Steve Mahoney: Some of us short-term.

Mr. Gordon Maynard: We wouldn't do it in business. Why do we do it the refugee division? I like the refugee division. I like their independence.

I don't like what the LRAG report suggests, where you have civil servants who.... When I speak to the members of LRAG about what they conceive when they think of these “protection officers”, they see people moving in and out of it: one week you're a protection officer and the next week you're an enforcement officer. That's not right. I think it needs to be specialized. It's a very complex area.

But you have to give the people the mandate to go and do their jobs. You have to staff them and you have to resource them. And when you do, you'll get efficiencies. If you don't do it, then you get the deficiencies you deserve.

The Chairman: Madam Minna.

Mr. Gordon Maynard: I'm sorry, I'm very long-winded about that.

The Chairman: Okay.

Ms. Maria Minna (Beaches—East York, Lib.): That's fine. I've had a bit of a crack at Mr. Maynard at other times, so I'm being more patient.

I just want to go back to a couple of comments that you made earlier in your presentation. You said that—and we all know this—there will be refugees or individuals who have gone through all the appeal processes. To some degree they've exhausted them, but we find that after a year or two they're still here, and you were saying that if they were able to work they wouldn't be on welfare. Fair enough.

But one of the questions that keeps coming up is this one: If the appeal process has been exhausted, why are they still here? Have they just gone underground? I'm trying to understand what other processes were—

Mr. Gordon Maynard: First of all, those weren't my comments.

Ms. Maria Minna: I'm sorry. Maybe they were Mr. Crane's.

Mr. Gordon Maynard: Yes, I think it was Mr. Crane.

Ms. Maria Minna: You're right. I apologize. Back to him. You're off the hook—for this one, anyway.

Mr. Michael Crane: So why are people still here after everything is finished, as it were?

Ms. Maria Minna: Yes. You didn't seem to suggest that they had gone underground, so I'm just wondering what else there would be that I'm not aware of, besides the appeals.

• 1720

Mr. Michael Crane: I'd like to underline something that Mr. Maynard said. It's true—I had noticed this as well—that there really is only one appeal that's effective for staying your removal, which is the appeal of your refugee division decision for failed refugee claimants. Calling an agency is not going to stop your removal at all.

Ms. Maria Minna: True. We know that.

Mr. Michael Crane: Anyway, that point has already been made. I just wanted to underline that.

Why people are still here is a function of a few things. One really is the resources of Immigration. I noticed that when they testified, they pointed the finger at the fact that some countries are difficult to remove, and some claimants don't like to give information. But they had to concede that it was a minority of claimants who don't give the information. They didn't really say how many.

One of the big problems really is how many resources they're putting into it. I think LRAG doesn't really recognize that, for instance, detaining everybody is going to be more expensive.

Another reason why people are still here is that there are people who go underground. There's one peculiarity, at least in Ontario. I don't know if it exists throughout Canada or not. Mr. Rankin told me that wasn't the case in Vancouver.

As you know, many claims are made at the port of entry. You receive what's called a conditional departure order automatically. A conditional departure order, when it becomes effective, means you have to leave Canada within 30 days. The normal sequence is that you make a refugee claim, then you make an appeal and then the post-claim determination is refused. Then they get a letter saying they have to leave within 37 days.

Most claimants don't want to leave within 37 days for a variety of reasons. In Ontario, they issue an arrest warrant for you immediately if you don't leave. They know you don't leave because you're expected to provide a confirmation of departure document when you leave at the port of entry. On their computer, they have a list of people who are in a position such that they should have left, but there's no confirmation of departure, so those persons get warrants.

It's almost automatic. In the letter they send out, it says that a warrant is going to be issued. I gather it's not issued in every single case.

Those persons are not going to have a lot of incentive to report to the immigration department for anything. They're not allowed to work any more. As soon as they report, they're going to get detained.

Some persons are given deportation orders at the beginning. It does happen. If you make an inland claim, then you can get a departure order or a deportation order. If you make a claim one second after you've left the airport, if you find an immigration officer, you could get a deportation order. Those persons wait around for two or three years before the immigration department hauls them up for an interview for the travel documents.

I guess I'm just saying that there's an incentive, at least in Ontario, for persons to avoid the immigration department that's created by the fact that they force people into some illegal situations. For whatever reason, it just seems to be a fact of life in immigration enforcement that there's going to be some time between the time when a person can be removed and the time when they actually do removals.

I should indicate that it's not throughout the system. Canada and the States have an agreement to remove people, and in Ontario those removals are handled by Niagara Falls. If you're in a position to be removed, Niagara Falls will often crack out a letter to you a couple of weeks after the PCDO has been refused. Those persons are right at the point of removal fairly quickly, so it's not every part of the system that's slow.

Ms. Maria Minna: Mr. Maynard, do you want to add to that?

Mr. Gordon Maynard: Yes.

The fact that the department or the Auditor General can only recognize a certain percentage of people as having left the country in a given period of time doesn't mean that the rest are here. Some of the others are still in the process. They're identified. They're in Federal Court or some sort of review process. They still have a removal order against them, but it's not effective yet, it's stayed.

But I think there's a real incentive for people, once they're truly finished in the process, to leave, because it's a very uncertain existence in Canada after that. You don't have any legitimate status. You can't legitimately get work. You don't have an employment authorization. You're always going to be at risk of being detected.

If you go forward to Immigration and you haven't exercised your departure order, they now have a deportation order. That sends you back to your country of origin, which you claim you're going to be persecuted in, or to a country where you have no status, if it's your country of transit.

So there's no incentive for you to come forward to the immigration department, and there's not much incentive to carry on in Canada. I think what happens is that people leave surreptitiously. I think they go to the States and try to work illegally down there or they start a refugee claim down there. I don't understand what the rationale is for believing that they're all still here, because it's a pretty dim existence.

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Ms. Maria Minna: That's fair. I understand that.

I have just one other question, again to Mr. Crane. You said earlier that very few PDRCCCs are accepted, that numbers are very small in terms of acceptance, and that the PCDOs rely on the board to give them information. You seemed to suggest that the information was not adequate.

First of all, I have two questions. First, in your experience, is the low level of acceptance justified? Or are you suggesting there should be more acceptances? And in your opinion, is the information that is provided adequate or are you saying that there's a problem there? I'm trying to understand what your comments were on that whole issue. I wasn't too clear about whether you were just being descriptive about it or whether you were saying there's a problem.

Mr. Michael Crane: I was being descriptive, but there is a problem.

As Mr. Maynard pointed out, there was a risk assessment review that was carried out pretty much since 1989 before the PDRCCC regulations were put in place, and up until 1994 the applicants, failed refugee claimants, weren't really told about it. What exists now is that an officer will review the refugee division reasons, the personal information form, the documentation provided by the IRB and anything the failed claimant will send in.

When I said they rely a lot on the IRB, what I was referring to specifically was the fact that most failed refugee claimants are turned down. If they're from a refugee-producing country, they're turned down because the board said they weren't telling the truth. And the PCDOs, the post-claim determination officers, will rarely depart from that. Their usual rationale is that they can't ignore the credibility findings by the refugee division and they agree with them.

The current numbers, unless anybody has more current information, the last I heard about a year ago, are that about 5% of PDRCCCs are accepted. That's going to change, although I don't know in what direction, because as of last year a person now has to elect to be covered by a PCDO, which wasn't the case before in a PDRCCC review. It was automatic.

There was a review by the minister in 1994 or so. There was about 1.5% acceptance, and it went to 5% as a result of that review because they issued guidelines and because, I think, there was a feeling that they should be accepting more people.

It's my understanding—and this is not scientific at all—that most of the persons accepted under the PDRCCC class are from countries with civil wars in them, like Afghanistan or Somalia, and that it's very difficult for a failed claimant to convince a PCDO if they're not from one of those countries that he or she will be at risk, for whatever reason. The PDRCCCs seem to be used mostly to identify persons who are from countries where it is pretty obvious they're going to have difficult times. They're not very sensitive to specific issues.

The other problem with PDRCCCs is that at this time reasons aren't released, although you can obtain them. If you make an appeal of it, that does not constitute a stay. Immigration can remove you.

But the Federal Court has said that a PDRCCC review is completely discretionary. I've seen maybe one or two that were successful in terms of appeals only because evidence that had been considered for some reason should have been brought to the attention of the applicant.

Normally the applicant doesn't really know exactly what the officer is looking at. They're told they will look at anything that's available at the IRB, so they could be looking at something that's pretty old.

That's also a problem, because when someone makes an application under PDRCCC and they send in some information, they're only given 30 days to do that. The PDRCCC can be decided at any time, although they will consider any new information, but it's difficult to perpetually continue providing information for PDRCCC and all of a sudden get a negative decision. And if the person had been given some notice that they were thinking about doing a review in a couple of months, then maybe he or she would have provided more information.

The Chairman: Ms. Augustine.

Ms. Jean Augustine (Etobicoke—Lakeshore, Lib.): Thank you, Mr. Chairman. Excuse me. I'm fighting something, the flu or a cold or something like that.

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I would like to follow the line of questions around your last remarks, Mr. Crane, and ask this of all the witnesses today. If we are talking about decision-making, investigating, evidence-gathering, and at the same time discretionary powers and decision-making powers, I have been trying to get at the correlation, or what bearing race and colour and place of origin have in the entire mix. Can you speak to that, in terms of what you see around detentions and removals, as they pertain to country of origin, race and colour?

It's too bad my Reform friend is leaving.

The Chairman: Would you like to start? Yes, go ahead, Ms. Go.

Ms. Avvy Yao-Yao Go: We were actually involved in a group called the Coalition of Immigration, for lack of a better term. That group was formed last year as a result of the hunger strike that went on at the Metro West Detention Centre.

At that time, we heard about close to 200 people, detainees in the Metro West Detention Centre, and I think almost all of them were there because of the danger-to-the-public laws. They had served a criminal sentence and then got into immigration detention, even though they could be long-time permanent residents or convention refugees who have lived in Canada for a long time.

Before that, I actually had an opportunity to go into Metro West and met with some of these people. At that time, the group wasn't even formed, but we were there because we had started to get calls from members of the Vietnamese community. The relatives were out there and they were telling us that their son or husband or whoever had been in the detention centre for a long time—a year or two, or even more—and they were not getting out, even though it was after they had already served their criminal sentence.

We went there and saw only a handful of them. About 20 came to the meeting that day. Later on we heard that more.... There are a lot of Jamaicans who are in there, Vietnamese, and a number of other groups, but 99% people of colour. The detainees were telling us that they had seen a lot of immigrants who were white immigrants who had gone through the criminal system and got detained but who left very quickly and some of them didn't even get detained.

So we started to ask questions as to why and on what basis. First of all, who gets declared as a danger to the public? Secondly, who doesn't get released, or gets bail when they go through the adjudication process? Even the statistics that were given to us by the immigration department, the Ontario region, show that among those who are long-term detainees, a very high percentage are Jamaicans, and the second-largest group will be Vietnamese—the vast majority immigrants and refugees of colour. That really raises the question.

But I think part of the reason actually goes outside of the immigration processs and more into the criminal justice process. For instance, who gets criminalized? Who are the ones being arrested on drug trafficking, as opposed to the people in Forest Hill who do it as a habit? Who are the small-time drug dealers who get caught all the time because of over-policing in certain areas in Toronto? With drug trafficking, if you get one trafficking charge, you get deemed as a danger to the public, and that's where a lot of the Jamaicans and Vietnamese were caught, even though they may not have committed any violent crime.

So I think that starting from the criminal justice system, already we see more people of colour being criminalized, being seen as criminals, and then brought into the immigration process. Then there is a process to deeming them there as a public danger because they happen to be Jamaicans or happen to be Vietnamese.

With a lot of these high-profile cases.... If you look at Paul Bernardo, nobody ever questioned where he is from, or whether he is an immigrant. But if a Jamaican is arrested for a shooting, or whatever, the first thing that comes to the public mind is about his immigration status.

So I think that is a real issue, and we have to look at that more carefully. And that goes into the discretion not just as to who gets bail, but the decision as to who is a danger.

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The Chairman: You could possibly look at that not just within that jurisdiction but look on it from a national viewpoint and see whether there is a common trend and whether the characteristics of that scenario can in a sense be replicated in other centres. It's a very interesting point.

Do you have any other questions, Jean, or can we now adjourn?

Ms. Jean Augustine: No, I think that's it.

The Chairman: All right.

Thank you very much for your presentations. You've presented us with a tremendous amount of information and some very stimulating information, and we'll have to continue the deliberations. We will naturally inform you about our future patterns. I do know that you have some concerns about what format we will follow in the months ahead. It could be more than months. It could be a year or two, because the problems are extremely complex. Thank you very much, and good night.

The meeting is adjourned.