CIMM Committee Meeting

STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION

COMITÉ PERMANENT DE LA CITOYENNETÉ ET DE L'IMMIGRATION

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, May 16, 2001

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[English]

The Chair (Mr. Joe Fontana (London North Centre, Lib.)): Colleagues, we're resuming clause-by-clause consideration on Bill C-11.

Colleagues, I think you will remember that we left off at, if I'm not mistaken, clause 54, and we're on clause 55, for which we have a number of amendments: PC-10, NDP-36, G-17, NDP-37, and NDP-38.

(On clause 55—Arrest and detention with warrant)

The Chair: I want to go to PC-10, but he's not here, so I'm wondering if I could ask Joan something with regard to detention and release. I know the provisions in the existing legislation, but I'm interested in what the bill says on this because we had many people before us who obviously had a variety of questions with regard to detention. These were comments such as that it should be used as a last resort, or suggesting alternatives to detention, especially for children. There were questions such as, are there any new grounds for detention in this bill that weren't there before? Other comments were that the bill should limit the powers given to individual immigration officers to order detention, or about prohibiting the detention of children, and on the powers of arrest in clause 55.

While we're sorting our papers out, I thought you could take us through this number 55 and its significance in terms of what's new or what's the same and what's the effect of these clauses.

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Ms. Joan Atkinson (Assistant Deputy Minister, Policy and Program Development, Department of Citizenship and Immigration): First of all, clause 55 outlines where you may arrest for detention where you need a warrant and where you can arrest without a warrant. Subclause 55(1) clarifies that for the arrest and detention of an individual who is a permanent resident or a protected person, the officer always needs to have a warrant.

I should also point out that in terms of the grounds for detention, there does seem to be a bit of a misconception that somehow we have expanded beyond what's in the current act the grounds for detention. Bill C-11 does not expand upon the grounds for detention. What we have done in Bill C-11 is we have indicated that regulations that may provide for the application of the grounds for detention may include provisions respecting the grounds for conditions and criteria with respect to the release of persons from detention.

You will recall from the regs proposal paper that we list fairly explicitly a non-exhaustive list of factors that in regulation a decision-maker will take into account in looking at whether to release someone from detention. That in fact adds more transparency to the current situation, because the current situation has the grounds for detention in the act, as does Bill C-11, but the various factors that are taken into account in coming to a decision to order release of an individual, or to argue for continued detention of a person, are largely administrative and are in administrative guidelines. So in fact by putting a non-exhaustive list of factors to be considered, we're being more transparent in terms of the detention and the decision-making around detention.

We also talk in here about some of the things that are new. In clause 58 we clarify in the legislation the grounds for detention for the purpose of a lack of identity. And I know that was another area where witnesses expressed concern, detention on grounds of identity. We clearly say in the bill, in terms of identity grounds, that the minister must be:

of the opinion that their identity has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information

—and so on. That gets at the issue of identity and the cooperation of the individual concerned in terms of trying to establish their identity clearly being the grounds upon which you would continue to detain someone if they have not provided the relevant information, if they have not been reasonably cooperative in terms of providing that information.

Obviously, in regard to minor children, you did hear concerns expressed by a number of witnesses about detention of minor children. We've clearly stated in the bill the principle that minor children should be detained only as a measure of last resort, taking into account all the circumstances of a case. We have not indicated, or put in the bill, that there'll be no detention of minors, because unfortunately, in some situations, we must detain minors. Obviously, we do not take the decision to detain minors lightly at all. We look at all of the circumstances of the case, but we must retain the ability to be able to detain minors as a measure of last resort, as clearly indicated in the principles in the bill.

Finally, we indicate in the regulations, again, the special considerations that will apply in relation to the detention of minor children, the factors to be taken into account. You'll recall from the regs proposal paper that we went into some detail in terms of those factors to be considered when you're looking at detention of a minor.

The Chair: Thank you very much. I think that's extremely helpful for everybody as we get into this section.

G-17 is a government amendment, and I'm wondering if you could tell us the effect of that. John McCallum, I believe, had indicated some time ago that G-17, relating to subclause 55(2), lines 35 and 36 on page 25 of the bill, would essentially put a fence around certain things.

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Ms. Joan Atkinson: This one relates to retaining the status quo authority we have in the current act to make it clear that the authority that exists in the current Immigration Act and allows an immigration officer to arrest, without warrant, certain persons who are unlikely to appear for proceedings that could lead to the making of a removal order will remain. This means that in regard to someone who needs to come in front of a senior immigration officer, in the current context, for a determination of their admissibility—in those cases an immigration officer would have the authority to arrest, without warrant, a person who they believe to be a flight risk. Again, there always has to be the grounds that they're a danger to the public or that they are a flight risk. An immigration officer would have the authority to arrest, without warrant, a foreign national who they believe to be a flight risk who will not show up for a determination by a senior immigration officer that they are inadmissible.

So this is an arrest authority that we have in the current act. What we are doing here is clarifying, in subclause 55(2), that this authority will continue to exist. The reason we needed to make this amendment is because our definition of “examination” now is a little bit narrower than what we had originally intended with the amendments we made to clause 15, that an examination is when a person is making an application. So what we need to do here is clarify that for cases where an individual comes in front of a senior immigration officer for a determination of their admissibility.

An example, Mr. Chairman, would be when an immigration officer finds someone who is working illegally in Canada and needs to bring that person in front of a senior immigration officer for a determination that they are inadmissible and subject to removal. If we didn't have this authority, an immigration officer who would determine that they had found someone who was working illegally and subject to removal, knowing that the person would be a flight risk, would then have to leave that person, go and get a removal order, and then come back and try to find the person who, by that point, if they are a flight risk, would have disappeared.

So it's necessary authority for us to have, to be able to deal with those sorts of situations.

The Chair: I was going to proceed with PC-10, but he's not around.

We'll go to NDP-36, if we could.

Judy.

It's number 114 in your package of amendments.

Ms. Judy Wasylycia-Leis (Winnipeg North Centre, NDP): I'm presenting this motion I think for reasons that seem to conflict with the presentation we've just heard from Joan.

My understanding is in fact that Bill C-11 actually expands the provisions for detention without warrant. So this motion actually is to try to limit the latitude possible around detentions.

I'm recommending that we actually take the words “is inadmissible and” out of that section, 55(2)(a), just to tighten it a bit, just to make it a little less wide sweeping.

This is based on testimony we heard from a number of groups, but particularly the Canadian Council for Refugees, who actually felt very strongly that this bill, rather than narrowing the provisions for detention, actually broadened them in a number of ways. This is one way we can try to get it back to a tighter model. They suggest that currently, to quote from their brief again, there are limited circumstances in which people inside Canada can be arrested without warrant. Under the bill immigration officers will be able to arrest and detain, without warrant people who are inadmissible even when they are not about to be removed.

The Chair: Judy, I wonder if you could, because you have two here—

Ms. Judy Wasylycia-Leis: I started with the first one, which was 55(2)(a).

The Chair: Yes, but what you're talking about with regard to protective is 55(1). It's 55(2) that you really want. Right?

Ms. Judy Wasylycia-Leis: I'm starting with—

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The Chair: Yes, because it's without a warrant and other than permanent residents or protected persons. Subclause 55(1) talks about a warrant, and you were talking about trying to protect those people without a warrant, so I'm just trying to assist.

Ms. Judy Wasylycia-Leis: Help me, then. I'm dealing with my motion NDP-36.

The Chair: Yes.

Ms. Judy Wasylycia-Leis: That's paragraph 55(2)(a). It deletes the words “is admissible”, so—

The Chair: No, you see, it reads, “that Bill C-11 in clause 55 be amended by replacing line 25 on page 25...”, but line 25 is subclause 55(1).

Ms. Judy Wasylycia-Leis: Oh, sorry, subclause 55(1). I'm sorry.

The Chair: That's what I'm trying to tell you. I think it's in the wrong place.

Ms. Judy Wasylycia-Leis: You think the way it's worded, it's in the wrong place?

The Chair: Yes. I don't want to tell you what you can do or can't do, but I'm just trying—

Mr. Steve Mahoney (Mississauga West, Lib.): She has an amendment on subclause 55(1) though.

Ms. Judy Wasylycia-Leis: So I'll start with subclause 55(1).

The Chair: Okay.

Ms. Judy Wasylycia-Leis: I'm suggesting we delete the words “is inadmissible”. I would do the same under paragraph 55(2)(a). In both cases I think we're reflecting the concern of some of the groups about the latitude given officers with respect to detention and the need for us to tighten it up a bit. We're hearing two different views today. The CCR's presentation certainly flies in the face of what Joan just told us. Maybe we need some further clarification. Is the CCR wrong?

The Chair: Joan, you could clarify that one. I think you've already pointed out that there are no new powers here. There may be clarification, there may be some stuff in the regulations that is going to be more transparent in respect of terms or with regard to detention, but you may want to cover that again, as well as perhaps telling us the effect of striking “inadmissible” and adding “believe is a danger to the”.

Mr. Steve Mahoney: I have a point of clarification. I'm just looking at NDP-36 on the paper I have, and it says that you're replacing line 25 on page 25 with the following: “believe is a danger to the”. Is that what we're talking about, or are we talking about eliminating the word “inadmissibility”?

Ms. Judy Wasylycia-Leis: That's the same thing.

Mr. Steve Mahoney: The same thing?

Ms. Judy Wasylycia-Leis: Yes. You are deleting “inadmissible”, so that it reads “who the officer has reasonable grounds to believe is a danger to the public”.

Mr. Steve Mahoney: I get you, okay.

The Chair: Anyway, Joan.

Ms. Joan Atkinson: The effect of removing the word “inadmissible” would considerably broaden an immigration officer's authority to arrest, because currently, the way that clause is worded, an officer can only arrest if they believe a person is inadmissible and they believe a person is a danger to the public or unlikely to appear for examination, admissibility hearing, or removal. What the clause says right now is that you can only arrest someone if you believe them to be inadmissible. That's the first thing. So in the example I gave of a person who is working illegally, you believe them to be inadmissible because they are working without authorization in Canada. You believe that they are either a danger to the public or that they are not going to show up for an examination, which is, as we know, making an application, an admissibility hearing in front of an adjudicator at the Immigration and Refugee Board, or removal from Canada.

So taking out the words “is inadmissible” broadens the authority of the immigration officer; it doesn't restrict it.

The Chair: In fact, Judy, we spent a lot of time yesterday on clauses 34 and 36 about inadmissibility. I think you may not want to strike “inadmissibility”, because if you believe what Joan says, it will even broaden it. That's one thing.

Can you also deal with the question from the refugee association and others, who have indicated that what's in this bill, again, is more power than what you had before?

Ms. Joan Atkinson: We, I think, have been really clear that we are talking about being able to arrest people only if they are a danger to the public, if they are a flight risk, and they are inadmissible. We are talking about detention being on the grounds of flight risk, danger to the public, and lack of identity, with the clarification in the bill that lack of identify and lack of cooperation in trying to establish the identity are factors for detention of individuals.

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The only other situation in the bill that is also in the current act is the very narrow ground of belief that the person is a danger to the security of Canada, and that's detention at ports of entry.

But those grounds are the same as they are in the current act. There is no extension of the grounds upon which we can detain a protected person, any other foreign national, or permanent resident.

The Chair: Any other discussion? I'll move NDP-36 and NDP-37.

Ms. Judy Wasylycia-Leis: Mr. Chairperson, what's NDP-37?

The Chair: It's the same thing, as I think you've indicated. No, I'm sorry. It's a little different.

Ms. Judy Wasylycia-Leis: It's a different point.

The Chair: Let's do NDP-36.

Ms. Judy Wasylycia-Leis: I'll pull NDP-36, partly because I'm getting mixed messages, but also because this really should have amended subclause 55(2). So it wouldn't help anyway.

(Amendment withdrawn)

The Chair: Okay. That's fine. That's withdrawn.

PC-10, I'm going to.... He's not here, but I didn't put it.

Mr. Inky Mark (Dauphin—Swan River, Canadian Alliance): I'll move it.

The Chair: Okay.

It essentially has, I think, the same effect as NDP-36. Do you want to withdraw it for him, or do you want to put it?

Mr. Inky Mark: No, I'll table it for him.

The Chair: Okay. You table it; we're going to vote on it. PC-10.

(Amendment negatived [See Minutes of Proceedings])

The Chair: I think I asked if one of the Liberal members wants to put forward G-17. I asked the effect of it. John, do you want to do that?

Mr. John McCallum (Markham, Lib.): [Inaudible—Editor]

The Chair: I do have a question, if I could.

It seems to me that we changed the definition of examination because we wanted to restrict it somewhat. Now you come up with an amendment that essentially tries to put back what we tried to take away. I know you said you wanted to tighten it. I know you wanted to say that you needed some additional stuff. Have I got it right, or am I just overreacting?

Ms. Joan Atkinson: What we did in clause 15 was to say that examination is related to when you're making an application, and that's when you are compelled to answer truthfully all questions and produce all required documentation. I think we've tightened that up through the amendments we've made to clause 15. In doing so, however, what we discovered was that we had left open our ability to be able to arrest someone where we believe they are a flight risk and we need to bring them in front of a senior immigration officer for a determination of their admissibility and whether they're subject to removal. That's not an examination, because the person is not making an application. So it's not covered under what we have currently in Bill C-11. It's not an admissibility hearing, because the person is not going in front of an adjudicator at the IRB, they are being seen by a senior immigration officer. It's not removal from Canada, because we haven't yet issued a removal order—we're going to make a decision on whether we should issue a removal order, but we haven't made that order yet.

The Chair: The whole clause is amended. So that I get the flow of this thing, subclause 55(2) would read then:

(2) An officer may, without a warrant, arrest and detain a foreign national, other than a permanent resident or a protected person,

(a) who the officer has reasonable grounds to believe is inadmissible and is a danger to the public or is unlikely to appear for examination, an admissibility hearing, or removal from Canada;

Now we're going to add the words:

or at a proceeding that could lead to the making of a removal order by the minister, under subsection 44(2).

And subclause 44(2) is what?

Ms. Joan Atkinson: The clause that deals with—

The Chair: Removal orders.

Ms. Joan Atkinson: —removal orders, preparation of a report and a removal order after the preparation of a report that a person is inadmissible.

As we said in respect of clause 44 and the changes that have been made there to clarify who may issue a removal order, the minister or the minister's delegate may issue a removal order to a foreign national, not a permanent resident, but a foreign national who has minor immigration infractions, such as overstaying, working illegally, returning to Canada after you've been deported without the consent of the minister. We need to be able to continue to have a parallel process or a mirror authority to arrest individuals who are going to appear in front of a senior immigration officer for a determination of their admissibility and potential removal. So that's what we're trying to do.

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The Chair: Okay. John.

Mr. John McCallum: I was just going to say that the reason I didn't have any questions is I thought the effect was not to undo what we had previously done, but just make what we want to do anyway consistent with our amendment earlier.

Ms. Joan Atkinson: Absolutely correct.

The Chair: Okay.

(Amendment agreed to—[See Minutes of Proceedings])

The Chair: Okay. John, I want to tell you that PC-10 was ably put forward by your buddy Inky Mark of the Alliance. It had the same fate as the other one he put forward, but he tried—a valiant try. I think the argument was made in Judy's, which is essentially the same thing. NDP-36 was the same as your PC-10. She withdrew hers, because she needs time to think about the answers she has received.

Mr. John Herron (Fundy—Royal, PC): So just to clear that up, the consensus was that permanent residents really don't deserve any kind of extra—

The Chair: No, PC-10 didn't say that.

Mr. John Herron: Oh, PC-10.

The Chair: Yes. Anyway, I'm not about to rehash it. I'm just giving you a a review of what you missed. Too bad you missed all the good answers and the good questions, but you'll have to review the transcript.

We're moving now to NDP-38.

Judy.

Ms. Judy Wasylycia-Leis: Yes, I have one more, and I'm not withdrawing this one. I'd like basically to delete subclause 55(3). The way this subclause is worded seems to me, based on testimony we heard, to be pretty permissive in terms of the ability of officers to detain on the basis of convenience or suspicion. I think a provision like that in law should be deleted and defeated and is a fundamental threat to human rights.

The Chair: Could I just add that the effect, then, if you've characterized it right—and perhaps I could ask Joan for the rest of us—would essentially add no detention power on entry at all. Is that what would be the effect of paragraph 55(3)(b)?

Ms. Joan Atkinson: Yes.

The Chair: Okay—just so we understand it.

(Amendment negatived—[See Minutes of Proceedings])

The Chair: NDP-38.

Ms. Judy Wasylycia-Leis: This amendment is to line 9 on page 26, and it is another attempt to limit the detention provisions of this section, which I still think is a concern we haven't addressed.

The Chair: Joan, I think committee members will attest to the fact that some of us find it revolting that 19 months after someone is detained they're still there. So with regard to the questions and concerns raised by some people, notwithstanding the fact about minor children—we've covered that off—could you give us an example as to why someone would have to be kept detained for 19 months?

Ms. Joan Atkinson: One example is when we are having difficulties removing someone. That would arise if we're unable to get travel documents from the country of which the person is a national and to where we would want to return. If the government is not cooperating with us in terms of issuing travel documents, we're unable to remove that person. That's one particular case. There may be situations where there may be ongoing court cases. For example, a person may be the subject of a criminal charge and be being dealt with through the criminal justice system. They are under our detention powers and authorities because they are not a permanent resident nor a Canadian citizen. They are being dealt with under the Immigration Act. If those proceedings are taking a long time and the person is, in our opinion, a danger to the public, we will keep that person and argue for a continued detention of that individual.

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I must remind everybody that again we only keep people detained if we can convince an adjudicator at the IRB. There are regular detention reviews. At those detention reviews, the department must convince the adjudicator that the person is either a danger to the public, is a flight risk, or lacks identity and is not cooperating with the minister in terms of establishing identity. Those reviews happen, as clearly outlined in the bill, at least 48 hours...and then a 30-day period following each previous review and so on. So there are regular detention reviews.

The Chair: That was very helpful.

John, and Inky.

Mr. John Herron: That paints a pretty rosy picture. But the fact is, if we look at the British Columbia situation, where we've had people detained for almost 19 months, these are essentially people who have been imprisoned. That's their only exposure to the country. It has been 19 months. We know their country of origin. We haven't put in any kind of visible energy to speak of, according to the people who actually deal with those individuals. I'm using this case example for a very real reason.

So eventually the 19 months is too much—20 is probably too much. At what point do we actually say we probably shouldn't keep these people imprisoned indefinitely? We should actually make a decision in terms of what to do. These people are in prison.

The intent of what the NDP motion is trying to do here is to just say let's sort stuff out sooner. Let's make a call. Let's make a decision. No matter what you actually say about, well, we don't like to, etc., these people have been there for over 20 months. We've really got to put our shoulder to the wheel and get a better system to address those concerns. What's happening in B.C. is a fine example.

So I'm going to support this motion, because maybe it might give some incentive to actually get these things sorted out, Mr Chair.

The Chair: Inky.

Mr. Inky Mark: Thank you, Mr. Chair. I support the motion. Even a country such as Australia, which detains all of its illegal migrants in detention camps, tells us that after six months they make a determination. They decide what to do with them. If they don't qualify, then send them back. But this business.... I agree with Mr. Herron. I mean, it is prison, however you look at it. It's just not fair to be sitting there for a year plus. I would say six months. What it would do is certainly create the urgency that these people need to be dealt with in a fair fashion and expediently.

The Chair: Anita, then Gerry.

Ms. Anita Neville (Winnipeg South Centre, Lib.): I have a question, through you, Mr. Chairman, to Joan. If this motion were to pass, would it increase the number of people who were sent back to their country of origin after a six-month period or not?

Ms. Joan Atkinson: No, it wouldn't have an impact.

Ms. Anita Neville: If the amendment were to pass.

Ms. Joan Atkinson: If the amendment were to pass, it would not have an impact on our ability to be able to remove. In fact, it would hamper our ability to be able to remove—particularly in cases where we believe the person is a flight risk and if they are released they will disappear. We will not be able to find them to remove them, once all of the refugee determination processing or other immigration processing is completed.

Secondly, it would remove or release into Canadian society more people who we have determined to be a danger to the public, if we had a time limit of six months on our ability to be able to detain.

Ms. Anita Neville: Just one follow-up question. What alternatives do you look at prior to detention? Do you look at other alternatives?

Ms. Joan Atkinson: Yes, we do look at other alternatives. We look at release under conditions. We look at the taking of a bond. We have had a very successful bond program, for example, in Toronto. We're working with our law enforcement partners in the greater Toronto area. We have had some of our immigration clients released under a bond program that is in place for other low-risk offenders who are not held in jail but are released under probation and bonds into the general population.

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So we have done some work in those areas. Adjudicators do look at—and we do, in fact, look at—alternatives to detention where those alternatives are appropriate and viable in the circumstances.

The Chair: Jerry.

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

The premise of the question from my colleague across the way was that the department doesn't do everything they can to sort out what has happened, and I probably would like your response to that because I don't believe that to be accurate.

The second part that does bother me a bit is that it's a pretty cut-and-dried, clear six months. If someone who's claimed refugee status in Canada is detained, and you can't get the information that you are attempting to get, they may flee. We know that, as people were let loose—British Columbia's a good example—they did flee.

But coming back to the very same point, at a six-month period, you're either going to have to turn them loose without due process—and I think that's not acceptable—or you send them back to the danger they are in. What alternative would you have if this were passed?

So the first one is, what do you do to try to resolve these cases? Secondly, what happens at the end of six months if this amendment passes?

Ms. Joan Atkinson: It's always a case of trying to balance efficiency and speed with due process and fairness to the individual. When we get into the discussion on the clauses related to the changes we're making to the refugee determination system through this legislation, you will see what we are trying to do to speed up the refugee determination system while still ensuring fairness and due process.

The cases in British Columbia.... The boat migrants all made refugee claims, and obviously it was necessary to go through the refugee determination process. We have, working with the Immigration and Refugee Board, looked at ways in which we can, even within our existing legislative framework, expedite and move more smoothly through the system people who are in detention. Obviously, for refugee claimants who have to be in detention, we want to try to make sure we are dealing with their claims as expeditiously as we can while ensuring due process.

Secondly, I would say that, in terms of our attempts to remove the boat arrivals once we had determined that they were not in need of protection through the refugee determination process and that they were removable, we have in fact been doing a great deal of work with the Chinese government. I might ask Elizabeth to speak briefly to that, since she is our point person in the department on that particular issue.

Ms. Elizabeth Tromp (Director General, Enforcement Branch, Department of Citizenship and Immigration): Well, I'll speak very briefly. While there are a handful of people still in detention in British Columbia—some of whom are still involved in court processes and other procedures so their processes here are not finished—the vast majority have in fact been returned to China with the cooperation of the Chinese government. They have issued travel documents. We have been able to remove them, and we think we've been able in a general sense to secure a greater degree of cooperation from them in taking back their nationals.

The Chair: I don't usually allow a second chance on the same issue, but go ahead. You've got a follow-up question.

Mr. John Herron: It's in the procedural rules. I can speak twice. There's no limit in House rules in terms of—

The Chair: I know, but we're not into rules right here. We're trying to be fair to everyone. I wait for you until you get here, when you feel like showing up, and all that sort of stuff, so let's get going.

Mr. John Herron: Gentle, gentle. We're multi-tasking on committees.

The Chair: Right. Just don't test my patience, okay?

Mr. John Herron: All right.

The issue here, Mr. Chair, is the fact that, in the private sector or almost any other performance mechanism, if you can't measure it, you can't manage it. If other countries such as Australia have a yardstick stuck in the sand at six months, as a country as progressive as Canada is, I can't see why we can't hit a target.

I can understand, in terms of the rules and the challenges and due process that the department needs to do, that six months might make it tough. But surely to goodness, we should be able to sort things out more quickly than 19 months. So I think this...and we've heard this on a number of occasions throughout our cross-Canadian tour; that's why we wasted, or invested, taxpayers' moneys to actually go and do that. Why wouldn't the committee want to be able to actually put in one timeframe? If it's not six months, it's 12 or 14.

I would ask Joan, through you, Mr. Chair, if six months is too tight, and giving yourself an extra little six-month buffer or whatever you happen to need, how many months would you need in order to make an amendment of this nature so you have some accountability? Canadians, I would say, Mr. Chair, want their system to be more expeditious, and they want things sorted out sooner. If you don't have that deadline as a goal or as a target to actually push you, it's going to bog down the way it already is.

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So I would say, how many months, through you, Mr. Chair?

Ms. Joan Atkinson: There are many things that we cannot control when we're talking about some of these cases that, unfortunately, end up being in long-term detention. I'm speaking here about security cases or difficult criminal cases where there are court proceedings; where the person is subject to court proceedings in terms of their criminality; where they are subject to other proceedings under this act, like a security certificate; and where they are exercising their right to go to the Federal Court—the Federal Court trial division, the Federal Court of Appeal, and the Supreme Court of Canada in some cases.

If we have argued successfully to the IRB, an independent tribunal, that the person is a danger to the public and should be maintained in detention, we have to be able to maintain that power for however long it takes for us to get to the point where either the person is removed at the end of the day after all court challenges have been exhausted, or they are released because they are found at the end of the day to be admissible to Canada.

The Chair: I think we've had a very good debate.

Judy, this is your final comment.

Ms. Judy Wasylycia-Leis: I'll just wrap up this debate on this motion. I'll just make one more appeal to committee members to consider supporting this motion, which I think places a reasonable limitation on the powers of detention in the act.

I think the other things we have to consider are that, on its own, it may be easy to disregard the idea behind this motion, but when you put it in the context of some of the other provisions of the bill, I think it does help to deal with some of the less palatable initiatives or parts of this bill.

I think that, for example, back to subclause 55(2), although the department disagrees with this, it would seem by all the testimony we heard that paragraph 55(2)(b) does give more grounds for detention than under the old act.

Then if you look at paragraph 58(1)(d), where the minister is given a lot of discretion in terms of keeping someone in detention if their identity can't be reasonably established, I think we're giving a heck of a lot of power to the officials, and we're creating the possibility of unnecessary detention. This amendment tries to set some limits, and it would, I think, cause the whole process to be sped up to keep people out of this kind of horrible circumstance.

The Chair: Thank you.

Good points have been made on all sides. Unfortunately, I'm going to have to call the vote.

Before I do that, my apologies to John for being a little...in terms of making that comment about when you feel like coming...that was inappropriate.

Mr. John Herron: You were a member of the class of 1984—

The Chair: Class of 1988.

Mr. John Herron: You know what it was like to do 34 members.

The Chair: Yes, I do.

Mr. John Herron: All right.

The Chair: All right.

(Amendment negatived—[See Minutes of Proceedings])

(Clause 55 as amended agreed to on division)

(On clause 56—Release—officer)

The Chair: We have one amendment proposed, G-18. Who wants to go? Steve or John?

Mr. Steve Mahoney: Mr. Chairman, this is clause 56, replacing line 14 on page 26 with the following, where it reads “for the detention no longer exist.” Then add:

The officer may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer considers necessary.

The impact of it is obvious. It gives the officer authorization to impose conditions, including financial deposits, etc.

The Chair: One can construe that as an alternative to clause 55 to a certain extent.

(Amendment agreed to)

(Clause 56 as amended agreed to)

The Chair: Clause 57 we did before.

Clause 58 has four amendments.

Mr. Steve Mahoney: I'm just asking—

The Chair: It's a different package—

Mr. Steve Mahoney: It's a different package—

The Chair: Well, this is the thicker package. It starts with...and here we've got amendment G-19, which is 123 in the amendment package.

• 1625

(On clause 58—Release—Immigration Division)

The Chair: John, would you take us through G-19?

Mr. John McCallum: I think this is just a housekeeping thing like the previous one. Because we changed the terms for examination, this reference back to subclause 44(2) recurs.

Ms. Joan Atkinson: It's consistent with the amendment that we need on clause 55 as well, in respect of the arrest provision.

The Chair: Can we just dispose of that right now, if we could?

(Amendment agreed to—[See Minutes of Proceedings])

The Chair: Okay, NDP-39.

Ms. Judy Wasylycia-Leis: I referred to this clause in my concluding remarks on the last amendment. It is proposed that we delete paragraph 58(1)(d). Again, I think this gives broad-ranging, wide-sweeping powers and could penalize those unable to produce identification on the basis of, I think, subjective interpretation, which could include being uncooperative or not. I think the deletion of this clause would not in any way hamper the other provisions of the bill, it won't have any other consequential effects, and I think it would be in line with our concern about trying at least to keep some sense of rights for individuals and freedoms in our society.

The Chair: Any further discussion on NDP-39?

Joan.

Ms. Joan Atkinson: In fact, deleting this provision would remove the guidelines that clarify for decision-makers that it's more than just identity that should be considered when you're making a decision on continued detention. If we look at paragraph 58(1)(d), it's not just the fact that identity has not been established, but again that it's not possible to determine identity, that the information is not available, that the person is not cooperating in trying to establish that identity, or the government is not making a reasonable effort to establish identity. So we think paragraph 58(1)(d) in fact adds greater clarity to the grounds for detention based on identity—

Mr. Daniel Therrien (General Counsel, Legal Services, Department of Citizenship and Immigration): And limits.

Ms. Joan Atkinson: —and limits, quite correct, Daniel. The government may not detain simply because there is a lack of identity, but may only detain if, in addition to the lack of identity, the government or the individual is not making reasonable efforts to try to obtain the information that would confirm identity.

The Chair: Judy, do you still want to keep it?

Ms. Judy Wasylycia-Leis: Yes, I'd like to keep it. I'd like to ask a question.

The testimony we heard was that because of this provision, on this particular issue of detention, Bill C-11 actually worsens the situation as compared to Bill C-31, because it is—and this is again from the CCR—no longer left to the adjudicator to decide whether identity has been satisfactorily established or whether it can be, and there is to be no independent oversight of an immigration officer's decision that the person's identity has not been established. I haven't heard anything to suggest that isn't the case. This does take it away from the adjudicator and put it in the hands of the minister or the officials, and there are no checks and balances in the system as a result of that.

Ms. Joan Atkinson: Subclause 58(1) makes reference to the immigration division:

58.(1) The Immigration Division shall order the release of a foreign national unless it is satisfied, taking into account prescribed factors

So subclause 58(1) makes reference to decisions taken by adjudicators at the immigration division of the IRB.

Daniel wants to add something.

Mr. Daniel Therrien: Without paragraph 58(1)(d), the provision that would apply would be paragraph 55(2)(b), which authorizes detention for lack of identity. What paragraph 58(1)(d) does is limit the scope of paragraph 55(2)(b). It's not enough for the person to be detained simply because the officer is not satisfied as to identity. Paragraph 58(1)(d) imposes, first, a duty on the government to make an effort to look at who this person is, and secondly, it says the person, even though they may not satisfy the government as to identity, if they make reasonable efforts to show who they are, they will be released. So it creates two grounds for release.

• 1630

(Amendment negatived)

The Chair: Next is amendment G-20. I think you can put forward those housekeeping matters, John.

Mr. John McCallum: Anita is going to do it.

The Chair: Okay.

Ms. Anita Neville: I move amendment G-20, on clause 58. It's primarily a housekeeping matter.

The Chair: Are there any questions?

(Amendment agreed to—[See Minutes of Proceedings])

The Chair: Amendment G-21 is similar to what we just did on clause 55, as the alternative, posting money, guarantees. Who is going to put that forward?

Mr. Steve Mahoney: I so move.

The Chair: Are there any questions on that one? None.

(Amendment agreed to—[See Minutes of Proceedings])

(Clause 58 as amended agreed to)

The Chair: We did clause 59.

(On clause 60—Minor children)

The Chair: We have three amendments on clause 60: BQ-19, NDP-40, and PC-11.

Madeleine.

[Translation]

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): The amendment is very clear: "A minor child shall not be detained." We should definitely be able to find solutions other than detention. Prison is not a good place for children. We would not want our own children in prison. There are ways of finding other solutions. I am sure, in light of the imagination of the government and the departmental officials, that they will be able to come up with something.

So what do the words "measure of last resort" mean? The last resort for one person has nothing in common with the last resort for another. We can see that every day. So, if we say that no such last resort shall exist, I think that internationally at least, this is something that would be seen very positively, as something that goes beyond high-sounding words.

[English]

The Chair: Joan, I think you tried to answer this when you took us through the section. What is the exception for which we would detain a minor? We asked you this already, and we heard it loud and clear. What is the example where a minor would have to be detained? If, say, a child came with parents and the parents were detained, why would you have to keep a child in a detention centre?

Ms. Joan Atkinson: Let's take up that example.

If the parents are detained in a detention facility, there is a question as to what should happen with the children of those individuals. Is it in the best interests of the child to separate them from their parents, even if the parents are in a detention facility, and place them in some kind of alternate care that would be up to the provinces?

We do work with the provinces in terms of dealing with minors, either those who are accompanied or those who are unaccompanied, in looking at what the possibilities are for accommodation of those children somehow in provincial facilities.

• 1635

So in the case of accompanied children, there is a determination, on detaining those children with their parents, what is in the best interests of the child, in terms of splitting them up or keeping them together with their parents in that detention facility.

Again, I'd take you to the draft regulations proposals. We go into some detail as to what factors we would take into account when we're looking at detention of a minor child. We would look at such things as the availability of alternative arrangements through provincial facilities, local child care agencies, or other facilities that would be available to keep those children safe and out of harm's way; the length of anticipated detention; and what is the possibility of continuing control of those minors by the criminally organized smugglers or traffickers who brought them to Canada.

While obviously detaining children if they are subject to being abused by the smugglers or traffickers who brought them to Canada, in and by itself, is not a grounds for detention, it is clearly one of the factors we would want to take into consideration in looking at whether we should detain a child on grounds of flight risk, because of the way they were brought to Canada.

We look at the nature of the detention facilities, at whether or not we have appropriate facilities in our detention facilities to deal with children, and the availability of services in those detention facilities—education, counselling, recreation, and so on.

Those are all factors that we would be considering.

The Chair: Okay.

Are there any further comments on BQ-19?

(Amendment negatived—[See Minutes of Proceedings])

The Chair: Next is amendment NDP-40.

Ms. Judy Wasylycia-Leis: Amendment NDP-40 is another attempt to address this issue and—

The Chair: The best interests of the child.

Ms. Judy Wasylycia-Leis: —maybe we could get some unanimity on this one. This is a very positive suggestion, based on what the department said about the circumstances where a child might have to be detained. I'm suggesting we just word it a little more positively and take extra care to ensure that the best interests of the child are always put forward.

So the amendment is, in fact, that:

For the purposes of this Division, it is affirmed that the best interests of the child shall be the primary consideration in any detention decision affecting a minor.

The Chair: The thing is, to tell you the truth, the regulatory discussion paper sounds a heck of a lot more descriptive than this legislative paragraph.

Joan, you talked at some length about how in fact that decision will be made, what sorts of factors will be taken into account. Unfortunately, the legislative clause sounds a little bland. Maybe it's in the regulatory stuff that we would have to look for that guidance, but Judy raises a good point.

John.

Mr. John Herron: I would just like to add, and maybe speak to my own amendment at the same time, because I think the essence of what we're trying to do is the same, that clearly what Ms. Atkinson had advocated was that a myriad of considerations would come into play.

The approach we want to take, in particular, would reflect what the Canadian Centre for Victims of Torture had advocated. It stated that if a child under the age of 18 is detained, the child shall be detained in accordance with the United Nations Convention on the Rights of the Child. That's something we do embrace in that regard. It sets some more rules and parameters. The myriad of items you listed did not incorporate that fundamental international accord in that approach.

So I couldn't care less in terms of which way we go, whether or not it's the NDP approach, but if we're looking for a tighter definition in terms of rules of how we treat children, we might want to consider the United Nations Convention on the Rights of the Child as having a very clear descriptive aspect to it that the country has already embraced.

The Chair: Okay.

By the way, as I think you indicated, the discussion paper on the regulations has a sort of guideline that says we would use the definition of the United Nations High Commission for Refugees as it relates to minors. Is that correct?

Ms. Joan Atkinson: Yes, that's correct.

The Chair: So there is a reference to a definition there. I just give you that for your information.

Steve.

• 1640

Mr. Steve Mahoney: I just wonder if it might be a bit of a compromise, and maybe Joan could react, if we were to take NDP-40 and PC-11 and add after the word “criteria” at the end of clause 60 something like “in accordance with the United Nations Convention on the Rights of the Child”. That's one of the criteria, but we're spelling it out, which I think achieves your goal—I won't put words in their mouths; they can respond—which is to flag that issue of the rights of the child. I don't think it damages the clause.

Ms. Joan Atkinson: There are a number of provisions in the UN Convention on the Rights of the Child. We do make reference to detention as a last resort and the special consideration of minors. We're trying to get at issues that relate to things such as best interests of the child.

We've chosen to put factors in regulations because the factors are a non-exhaustive list. Anything we put in legislation in one sense restricts because then that is the list that must be considered and no other. If you have factors in regulation, then it's those factors plus any others that are relevant, which gives you more flexibility.

But on the convention specifically, I'll ask Daniel to speak to that.

Mr. Steve Mahoney: Before you answer, instead of referring specifically to the convention, which might pose other problems, what if we were to add “including the best interests of the child” after the word “criteria” and just leave it at that?

The Chair: John, I think you said you would defer to NDP-40, which essentially says what Steve is saying.

Mr. John Herron: But if he was looking for a hybrid in that regard, we could add “including the best interests of the child but also including a fundamental accord that the country already embraces in terms of the United Nation Convention on the Rights of the Child”.

The Chair: No, that's going too far. Is there a friendly amendment to NDP-40? Steve has suggested—

Mr. Steve Mahoney: The friendly amendment would be that you add the words “including the best interests of the child” after the word “criteria”. It would then read “other applicable grounds and criteria including the best interests of the child”.

The Chair: Judy, do you accept that?

Ms. Judy Wasylycia-Leis: Yes.

(Amendment agreed to—[See Minutes of Proceedings])

The Chair: Do you want to withdraw PC-11?

Mr. John Herron: I think the officials are not correct when they say that when we list items it restricts. Using language such as “including”, as in the example there, it's wrong to say it automatically restricts if the verbiage beforehand says that. That's a point of fact and a point of law. So I would like to put forward the same amendment using the verbiage “including the United Nations Convention on the Rights of the Child”.

(Amendment negatived—[See Minutes of Proceedings])

(Clause 60 as amended agreed to)

(On clause 63—Right to appeal—visa refusal of family class)

Mr. Steve Mahoney: Did we do clauses 61 and 62?

The Chair: Yes, two days ago.

People, we're going to a new division, division 7, which is the right of appeal.

We have two amendments, PC-12 and NDP-41. Do you want to go ahead on PC-12, John?

Mr. John Herron: Yes.

The Chair: My book shows NDP-41 ahead of yours.

Ms. Judy Wasylycia-Leis: He can go first.

The Chair: Go ahead, John.

• 1645

Mr. John Herron: Essentially, what Judy and I will be advocating is that there be different designations and a different status for landed immigrants or permanent residents, depending on the terminology utilized, and that if they are in fact permanent residents, they should have a different status and a right to appeal. That's what we heard from witnesses and that's what a number of members spoke about on countless occasions on the road. Now we're going to get a chance to vote on embracing that particular concept. So I move this amendment.

The Chair: Steve.

Mr. Steve Mahoney: Could we hear from Joan?

The Chair: Joan.

Ms. Joan Atkinson: Subclause 63(1) currently allows permanent residents and Canadian citizens to sponsor foreign nationals who are members of the family class, and they may appeal to the Immigration Appeal Division on any decision. So in subclause 63(1) there's no removal of appeal rights for persons who are permanent residents.

Ms. Judy Wasylycia-Leis: My understanding is that this amendment focuses on appeals, but the inference is that by reworking it as we've suggested, we'd actually narrow the possibility for interference or grounds for denial. Again, it's to try to put some boundaries around the whole appeals process.

The Chair: Let me ask the question in this way. Clause 63 essentially tries to do what section 77 of the existing act does. Is that right?

Ms. Joan Atkinson: The amendment as proposed would have one very important—

The Chair: Before you get to the amendment, some of us are trying to understand the difference between clause 63 and section 77 of the current act. How is clause 63 different from section 77? That's what raised the ire in the first place, that section 77 said something and now clause 63 takes away something. We'd like to have a baseline to go from.

Mr. Mark Davidson (Deputy Director, Economic Policy and Programs, Department of Citizenship and Immigration): One of the provisions of section 77 is to give sponsors of family class immigrants the right to appeal against a decision not to issue a visa to their family class member. Subclause 63(1), which is the provision we're talking about, is a direct carry-over of that right from the present act.

The Chair: So there's no change. The sponsor has an opportunity to appeal to the IAD on that action.

What would amendment PC-12 and NDP-41 essentially do if inserted?

Ms. Judy Wasylycia-Leis: I'll pull mine and let John explain his.

The Chair: What would amendment PC-12 do, now that NDP-41 has been withdrawn?

Ms. Joan Atkinson: These amendments would create two types of appeals: an appeal against a decision not to approve a sponsorship or where the member of the family class abroad does not meet the requirements of this bill. It would have the impact of setting up a separate sponsorship appeal. Of course, what the current act does and what clause 63 is intended to do is carry over the status quo where appeals are against the decision to refuse to issue an immigrant visa to the family class members. That's what the appeal is. It's the whole package. It's the refusal to issue the immigrant visa. This would create two separate appeal processes.

• 1650

Mr. Steve Mahoney: I'm clear on that. It seems to me we're allowing appeals to two sets of people who don't qualify to either sponsor or be sponsored.

Ms. Joan Atkinson: That's correct.

Mr. Steve Mahoney: End of story.

Ms. Joan Atkinson: I should point out again that in the regulations we've indicated our intention here to give sponsors some options. Currently what happens is you make your application to sponsor, and regardless of whether or not you meet the sponsorship requirements, the sponsorship still goes overseas. The family members make their application. The application is refused, and then the appeal is heard.

Our plan is to allow sponsors who do not meet the eligibility requirement—they don't meet the low-income cut-off—to withdraw their sponsorship application and recover a good part of their cost-recovery fee. When they meet the sponsorship requirements, they may come back and submit it again. All they've lost is a very small part of their cost-recovery fee. So we'll give them back the money as well.

That should expedite, not only for us but also for the sponsors, because they won't waste their money pursuing a hopeless situation. They'll be able to make an application and then withdraw it if we say to them, I'm sorry, you don't meet the low-income cut-off figure.

The Chair: Thanks.

Judy, finally.

Ms. Judy Wasylycia-Leis: I was just checking the notes that were compiled by the research staff from our testimonies. Just to help out John with his amendment that's on the table right now, our understanding is that we need to amend subclause 63(1) in order to grant access to the Immigration Appeal Division to permanent residents whose refugee protection status is vacated. That was our summation of our—-

Ms. Joan Atkinson: No, that's not what subclause 63(1) does.

The Chair: I think there's a problem.

Ms. Joan Atkinson: Yes, this is family class sponsorship. If you're a permanent resident or a Canadian citizen, you can sponsor and you have a right to appeal if that decision is a negative one.

Ms. Judy Wasylycia-Leis: Another group said that subclause 63(1) should be amended to make it consistent with clause 77. We had recommendations from two different groups on subclause 63(1). We'll leave it for now.

The Chair: We'll sort it out. PC-12.

(Amendment negatived—[See Minutes of Proceedings])

The Chair: NDP-41 and 63 then as—-

Mr. Steve Mahoney: Was NDP-41 withdrawn?

The Chair: Yes.

(Clause 63 agreed to)

(On clause 64—No appeal for inadmissibility)

The Chair: On clause 64, we have CA-16 and PC-13.

Inky.

Mr. Inky Mark: Well, actually my amendment to the bill is to delete subclauses 64(1) and 64(2). Again this section is under no appeal for inadmissibility, and I believe there should be. It's the same topic we were discussing.

Mr. Steve Mahoney: This is security, criminality, and all that. The criminal is a minor point.

The Chair: PC-13 is essentially the same thing.

John, do you want to take us through yours?

Mr. John Herron: Yes, this goes to the right of appeal issue. It's a compromise amendment that was brought forth by the Canadian Bar Association—-

Ms. Judy Wasylycia-Leis: And many other groups.

Mr. John Herron: —-and many other groups. They advocated that a permanent resident, who had been here and maintained permanent status for five years before perpetrating the crime involved, should have the right to appeal. This is a compromise approach, as opposed to maintaining that they have an automatic right to appeal because they're a permanent resident.

• 1655

A good illustration of this is the following example. A young person came to the country as a permanent resident at three years of age and never took up citizenship—perhaps because it wasn't a high priority in his family upbringing or perhaps he never even thought about it. This is probably more the case for poorer families. The young person had never been in trouble before, but maybe through a one-time drug situation received a sentence of over ten years, or served time longer than two years. That person has no right for appeal to deportation.

It's a compromise amendment brought forth by the Canadian Bar Association. So that's the intent of the motion.

Thank you, Mr. Chair, for your attention.

The Chair: Thank you.

Can I just ask a question, because this is one that interests me. I want to get a clarification. I'm sure it interests everyone here, because we are talking about....

Mr. John Herron: I'd like to note that the amendment is not PC-13, it's PCO-13, just in the event that it has a higher chance of getting approved.

Mr. Steve Mahoney: Pest control.

The Chair: Anyway, there has been an awful lot of discussion with regard to appeal rights, both here and throughout the country. Just so I understand it, clause 64 talks about foreign nationals. We've changed the definition of foreign national, so it doesn't include permanent residents. My concern—and I'll tell you just so that it's clear here—is that I don't think we've changed that.... There's a great distinction, in my opinion, between someone who has permanent residency in this country—they have status, they could have been here for three, four, five, twenty, thirty, or forty years, and for whatever reason may have chosen not to be a citizen—as opposed to a foreign national, who is just trying to come in and is here on a temporary basis.

On the issue of serious criminality—and this is where we get into what is serious criminality—everyone says, of ten and two, either that the threshold is too high or too low. Shouldn't there be other factors taken into consideration—especially an appeal—before you kick someone out of this country, who may have spent all of his time here, has family, has paid taxes, has been here for years, is a permanent resident, and therefore has status? We are going to deny an appeal on that basis.

Now, I understand there are other considerations, such as the humanitarian and compassionate area in clause 65. Do we not then distinguish between someone who has been here temporarily as a foreign national and someone who has permanent status? Do we not offer them the appeal rights that are afforded to Canadian citizens, if in fact we believe that permanent residents already have the rights as prescribed under the Charter of Rights and Freedoms? This is a fundamental question that I'd like to have answered.

Ms. Joan Atkinson: Clause 64 removes appeal rights for serious criminals regardless of whether they're a permanent resident or a foreign national. It says foreign national, because that was before we made the amendment to the definition of foreign national. So the amended provision—the consequential amendment to the amendment that we made at the beginning—would be foreign national and a permanent resident. So it does include permanent residents.

Yes, there have been many representations. You've heard a lot of witnesses, and we've talked about this a little bit in terms of presenting this bill to you, Mr. Chairman. Let me say, first of all, that the decision to remove a long-term permanent resident is definitely not one that we take lightly.

First of all, we have a threshold for serious criminality that is reflective of the serious nature of the criminal activity that the individual has been involved in. It could be a crime that could be punished in Canada by 10 years, and where a term of imprisonment of two years was actually imposed. That reflects the seriousness of the criminal activity engaged in by that long-term permanent resident. That individual has been dealt with through the criminal justice system and has had an opportunity through the criminal justice system to have all the circumstances of that criminal activity considered, including all appeals against that conviction and term of imprisonment. That's the first thing.

• 1700

This replaces the current act, where the status quo is that long-term permanent residents may be removed, without appeal, if the minister believes they are a danger to the public. We have replaced the “danger to the public” judgment with this more objective threshold of ten and two.

Secondly, I'd like to say that before any decision is taken for removal or enforcement action against a long-term permanent resident, there is a thorough review of all that individual's circumstances and situation. How long has he or she lived in Canada? What is the presence of family members in Canada? What is the situation vis-à-vis the community? What was the nature of the criminal offence and the circumstances surrounding its commission?

As we said before, only in a very small number of cases do we decide to take enforcement action against a long-term permanent resident. I think the proof is in the record—that we balance all these factors before taking any enforcement action against the few cases we do.

Thirdly, the earlier amendment in clause 44 assured that these cases would be heard by an adjudicator and by an independent tribunal. After the officer weighs whether any enforcement action should be taken, a report should be written, and that report must be reviewed and concurred with by a senior immigration officer.

Then there's a hearing in front of an adjudicator, so that an independent tribunal looks at that individual's admissibility. And of course, if the adjudicator decides to remove the individual, that decision is also subject to judicial overview. The individual has the opportunity to refer that decision to the Federal Court of Appeal.

So we believe there are lots of checks and balances in the system to ensure that the individual circumstances of long-term permanent residents are examined. A five-year threshhold would mean that residents who have been here for less than five years—who might also have legitimate reasons for being given the right of appeal, or for not having enforcement action taken against them—would not be considered under a rule that says only those who have been here for five years can qualify.

Our desire is to look at each case on its own merits and consider all the factors before even deciding to take any action against them in the first place.

The Chair: Jerry, and then Steve.

Mr. Jerry Pickard: What came to my mind as you were answering was that nothing in the legislation about protection guarantees all the statements you've made.

I think that's probably where the legal society and others may be nervous. Would there be any opportunity to clarify that further in the regs, or in some other vehicle? I think you can take a clearer position, so that people know what their rights are across the board. I don't think this shows that.

Ms. Joan Atkinson: To answer that question, I guess I have to go back to the intent of the policy, which is to allow us to quickly remove criminals and those who are a danger to the public while still ensuring due process—that individuals have the opportunity for their cases to be heard.

In clause 44, we're talking in terms of going to an adjudicator for an admissibility determination and then having a judicial review. So it's a consolidated decision. All the report writing and consideration of circumstances by a senior immigration officer, leading up to an adjudicator's decision, is part of one consolidated step.

If we were to add another step into the legislation, which I think is what you're suggesting, indicating that these are all the factors to be considered—that would be another judicially reviewable step in the process.

• 1705

Mr. Jerry Pickard: I wasn't suggesting another step. I was suggesting clarification of your analysis of what would happen. I'm not sure this is clear in the legislation, so the clarification could be made in regulations.

Ms. Joan Atkinson: I'm going to ask Daniel to speak to that particular question.

Mr. Daniel Therrien: I understand what you're saying. I think the effect of clarifying this question, whether in the act or the regulations, would be to create an additional step.

Currently, this process—whereby the immigration officer decides whether there will be an inquiry—is not a judicially reviewable step. That's part of how we can remove criminals more quickly, by relying on this process—rather than the IAD process, which is judicially reviewable—to make the proceedings faster.

If we were to say, in the act or in the regs—it would not make a difference—that an immigration officer must consider certain factors, such as age or how long the person was in Canada, when deciding whether to send a case to inquiry, then this would become a formal decision and hence be judicially reviewable. That's how you get into impediments to removing serious criminals.

We looked at this question very carefully, because we wanted to clarify it in the legislation. The problem, we found, was that if we did that, it would have the effect—even if we didn't want it to—of creating another judicially reviewable step and hence more delays.

The Chair: Thank you. Judy.

Ms. Judy Wasylycia-Leis: It seems to me that if we do nothing else on this committee, we've got to change this section.

I thought about moving to delete the section, but I understand the committee rules don't allow us to delete a section completely. I think we have before us some attempts to amend a section of the bill. I think that would be the desirable route. If that's not possible, if there's no will for that, I would ask committee members if we could at least amend the bill to exclude the....

Mr. John Herron: There is no appeal.

Ms. Judy Wasylycia-Leis: I'll plead with this committee to at least consider deleting the specific reference to serious criminality. That would still leave some of the provisions but would deal with the most offensive part.

I think the bottom line is that in this section of Bill C-11 there is no appeal to the immigration appeal division for a person who is found removable on the ground of criminality where a term of at least two years' imprisonment was imposed. That's it. That's what it does. I don't think we can sit here and let that happen. We've got to find a way around that.

If there isn't the will or consensus to delete the whole section, then I'm appealing for us to delete the words “serious criminality” in 64(1) and (2). If the chair will permit me, I'll make that amendment once we deal with the one on the books. I would hope we could have some discussion and find a way to modify this egregious section.

Mr. John Herron: Mr. Chair, before we get to Judy's proposal—

The Chair: Is that a point of order? I don't have you on the list speaking right now.

I'll move to Steve, then John, then John.

Mr. Steve Mahoney: I'd like to follow up on Jerry's questioning. If Jerry or someone could read the amendment that was put at clause 44...I understand it's in the bill as a result of a government amendment, that any removal orders would be issued by an independent adjudicator after an admissibility hearing by the IRB. That is in the act. That must happen.

Ms. Joan Atkinson: Correct.

Mr. Steve Mahoney: Can you read that section? Do you have it handy?

Ms. Joan Atkinson: The amendment to clause 44 was:

(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national who is not a permanent resident.

• 1710

—I guess we've removed “who is not a permanent resident” now.

In those cases, the Minister may make a removal order.

So if the minister is of the opinion that the report is well-founded—that is, after reviewing all the circumstances and looking at all the factors, the minister or the delegate says, yes, we think we should take enforcement action against this—then the minister refers the report to an immigration adjudicator for an admissibility hearing.

Mr. Steve Mahoney: The words “a senior official” come out—who would recommend that it go to an admissibility hearing. Can you tell me what a senior official is? We're not talking about an immigration officer.

Ms. Joan Atkinson: We don't refer to a senior official in 44(2), but this is one situation where it could be delegated by the minister. As we said before, that delegation will happen by way of instrument.

Mr. Steve Mahoney: So it goes to the IRB for an admissibility hearing in front of an independent adjudicator. That person makes a decision, and that decision can be judicially reviewed. Now I know the argument will be that a judicial review is not the same as an appeal.

Ms. Joan Atkinson: Correct.

Mr. Steve Mahoney: They're going to look at the merits of the procedure, to ensure that rights were not violated, there were no errors in law, that kind of thing. Once it's argued at the Federal Court, a decision would be made to uphold it. At that point, the removal order stands—but there is still an appeal on H and C.

Ms. Joan Atkinson: Yes. At any time in the process, an individual can always seek the minister's authorization to remain in Canada on humanitarian and compassionate grounds.

Mr. Steve Mahoney: So it's not totally true to say there is no appeal. It would be more true to say the appeal system has been changed, albeit fairly dramatically. It has been changed, but there is an appeal, and a review, and an overview system in place, and at the end of the day there's an appeal based on H and C.

Ms. Joan Atkinson: I would just correct one thing: it's not a change. This is the status quo. The current Immigration Act removes appeal rights for serious criminals, but the threshold in the current act is the danger opinion—when the minister has determined someone to be a danger to the public.

All we've done in Bill C-11 is to change the threshold to a more transparent and objective standard of crime, punishable by ten years, where actually a sentence of two was imposed.

The Chair: A point of order, though, just so we don't get confused. Clause 65 says that in an appeal under subclause 63(1) or 63(2), the IAD may not consider humanitarian and compassionate considerations. Does that mean Steve is right in saying there's still H and C under 64, which is no appeal for inadmissibility? That's not clear. I think that's where Jerry was coming from.

Ms. Joan Atkinson: What we're referring to is clause 25. The H and C provisions in this act are for anyone who wants to apply to be considered for it. We're looking at removing the restrictions and limitations on the consideration of H and C, and it's that kind of appeal we're talking about—not the kind of appeal to the Immigration and Refugee Board that we're discussing in this context. We mean the H and C powers in the act and the fact that the minister can always consider an H and C application from anyone.

Mr. Steve Mahoney: So the bottom line, then—the question that Jerry started and I tried to follow—is that it is in fact in the act. You just have to put the pieces together. Presumably all the lawyers who are concerned about this would be quite capable of doing that—of taking their clients through the proper course and availing them of every opportunity available in the act.

• 1715

The most astounding statement I've heard—and forgive me, maybe other members have heard it before,—is that this is not a change; it is only a change in that you have defined what dangerous means by calling it ten and two. So any suggestion that appeal rights are being taken away here is just false.

Thank you.

The Chair: But there were appeal rights if you didn't have serious criminality; you had to have a danger opinion.

Mr. Steve Mahoney: Serious criminality, that's what I'm talking about.

The Chair: You had to talk about danger opinion. That's a big fundamental difference.

John, and then Judy—long John and Judith.

Mr. John McCallum: I'm going to be very brief because I have much the same points as Steve. I don't understand the last point. What's this about, appeal rights not being taken away?

Ms. Joan Atkinson: Mr. Mahoney was talking about the fact that a person can always appeal to the minister to stay in Canada on humanitarian and compassionate grounds. That's under clause 25 of the bill, which we discussed yesterday, the provision on humanitarian and compassionate decision-making, whereby an individual can at any time make an application to the department, or directly to the minister, and say, despite the fact that I'm subject to removal, I would like you to consider my case on H and C grounds. That's what Mr. Mahoney was talking about.

Mr. John McCallum: You've taken away a certain amount of judicial appeal rights.

Ms. Joan Atkinson: We have taken away appeal rights to the immigration appeal division of the Immigration and Refugee Board. This isn't new; this is in the current act. Serious criminals, persons who are defined in the current act as being a danger to the public, also have no appeal to the immigration appeal division of the Immigration and Refugee Board against a decision to remove them.

Mr. John McCallum: I won't repeat everything he said. I think we made a certain amount of progress with the one other earlier amendment. I think you've indicated discomfort in that you would have preferred to put in regulations that you consider long-term residents and things like that...but you can't because then that would open the door to the appeal.

Ms. Joan Atkinson: To judicial review.

Mr. John McCallum: Yes, so I'll just say I share that discomfort, but I live with it.

The Chair: Anita, and then Joan.

Ms. Anita Neville: I'm going to have to go back to what John just said. Could you repeat his point or your discomfort with...? I have another question.

Ms. Joan Atkinson: What we said was we talk about what happens in practice at the very beginning of a process. A permanent resident who is released from prison after serving a sentence of at least two years for a crime that was punishable by at least ten years is subject to removal.

The first step is that an immigration officer takes a look at that case and decides whether or not they're going to write a report. What they do in considering whether or not to write the report is weigh all these different factors that we talked about: age, length of time in Canada, presence of family members in Canada, and so on, before deciding whether or not to write the report that starts the ball rolling on the enforcement process and the eventual potential removal of this individual. What's been suggested is that we somehow should make reference to that in the act or in the regulations.

Our problem in doing this is that even if we don't intend it that way, it will be interpreted as another step in the process, another decision point in the process that is subject to judicial review. So it adds another layer of judicial review in a process where we are trying to remove criminals quickly while at the same time ensuring that we are taking all the circumstances into account, particularly when we're dealing with long-term permanent residents.

Ms. Anita Neville: Help me, Joan. I had, as have many members of this committee, many representations from members of the bar. This week I met with a member of the bar on this matter who cited a case he was dealing with involving...and I can't remember the age of the person coming to the country, someone relatively young, I think in their thirties. His comment to me was he was glad it was being done under the old legislation rather than the new. I asked what his client had done. The client has a litany of between 10, 12 or 14 charges and convictions against them. It depends on how you define serious and criminal, but they were, in my mind, relatively significant.

• 1720

What would be the difference in the treatment of that client in the old system as compared to the new? Why is he thankful it's happening under the old one? My response to him was, surely to goodness your client has some responsibilities, if he is a permanent resident, knowing his situation.

Ms. Joan Atkinson: The difference between the old, or the current, and the new, is that under the current act that individual would have his case assessed against the danger to the public provisions. What are the danger to the public provisions? Part of the problem with the danger to the public provisions is they are not clear and they are not transparent. A minister's delegate reviews the file, takes all the paper that is collected in terms of the background of the case and all the circumstances of the case. After the review by the minister's delegate, a decision is made on whether or not that individual is a danger to the public.

Under the new system, in Bill C-11, it would be very clear whether that person was within that threshold or not. If they'd been convicted of an offence that could be punishable by ten, and where a sentence of two is actually imposed, they would clearly be not only inadmissible on serious criminality but would not have appeal rights to the IAD—that's the immigration appeal division of the IRB.

Ms. Anita Neville: Thank you.

The Chair: John, Judy, then Inky.

Mr. John Herron: I'll use this as my closure, but other people can add as well.

The Chair: I'm dealing really with CA-16, which essentially wipes off that whole clause 64.

Yours is a little different because it talks about a five-year period. I'm treating yours a little differently.

Mr. John Herron: It's a compromise.

The Chair: It's a compromise. That's what I mean.

Mr. John Herron: I'll wait for mine then. I'll pass.

The Chair: Judy, and then Inky.

Ms. Judy Wasylycia-Leis: Let me try this again.

First of all, with respect to this notion that there is some hope for appeal under clause 25, that's illusory. Remember the representation we had a couple of weeks ago with the IRB officials before the committee. We asked the questions about the fact that this bill provides for no second claim in terms of refugee status.

The idea of there being a remote possibility under clause 25 on humanitarian and compassionate grounds was raised. The head of the IRB and his counsel advised us that it was remote indeed. Someone would have to be absolutely persistent and have everything lined up in order to ever get to that point.

So in reality there is no appeal for someone who is charged under this provision of serious criminality—

Mr. Steve Mahoney: Convicted and sentenced.

Ms. Judy Wasylycia-Leis: —who is convicted and has a sentence of two years or more.

I can't think of anything more un-Canadian and un-liberal than this provision.

Mr. John McCallum: They just amended clause 25 so that they do have the right to appeal. Yesterday we discussed that. So what you're saying is wrong.

Ms. Judy Wasylycia-Leis: Again, no.

I think you have to think about this in real terms. You have a provision in the bill that denies an appeal. And what does it take in terms of the resources, the time, the persistence, and the legal advice to get to another level that might give you a chance at using clause 25?

Mr. John McCallum: It's just been demonstrated that—

The Chair: John, let her make her point.

Ms. Judy Wasylycia-Leis: As long as this section reads the way it is, I don't know how we can hope that clause 25 will counterbalance or neutralize the negative provisions of this section.

I think one of the best testimonies we had was not from the Canadian Bar Association, but from, I think it was, the Law Union of Ontario, where the person who presented gave us the whole history of this case and talked about how, as Joan has said, the act was changed in 1995 to provide this danger to the public provision as a result of the Just Desserts case. That did give the minister, the officials, the right to charge someone as a danger to the public and not give reasons.

• 1725

But I think this person pointed out that then the Baker case came along, where the judge ruled that opinions had to be provided. Am I not correct here? The judge ruled that there had to be reasons provided for not allowing the person to pursue their situation here in Canada.

So it would seem to me that rather than this government living up to the spirit of that Supreme Court decision, it has chosen instead to change the law to do what they wanted to do anyway.

Surely we should be at least applying to this bill the spirit of that decision and the sense that everybody on Canadian soil has the right to appeal. If members believe it's here somewhere in the act, why not put it here then? Why not make sure? Why allow for this?

The Chair: Thank you, Judy.

Inky.

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

Because these decisions are human and lots of times are subjective, I believe there always should be a final appeal to either the IAD or the judicial system.

Even when you say, Joan, that there's the whole business of danger, we don't even define what a danger to this country is. That creates problems of its own. And in terms of this business of H and C application as a last resort, clause 25 doesn't force the minister to even look at the stuff.

We talked about that in this committee. What kind of a safety net is that? That's why I believe that in this clause we either need to remove the word “no”, or else delete the clause altogether and write a new one.

The Chair: Jerry.

Mr. Jerry Pickard: Thank you, Mr. Chairman.

Mr. Chairman, all of us have concerns about making sure people's rights are there. There's no question about that from anyone around the table.

There is a safety issue that has been addressed in the previous bill and needs to be addressed in this bill. I believe any lawyer or judge is going to take the testimony of the officials who are sitting in front of us and apply that testimony in cases as well.

They'll review the testimony if this issue did arrive in court. Their testimony of the process and the possibility of appeal is clearly spelled out. I think they went through the process step by step. This is not changing the process. But I believe, from the testimony of the officials, that it clarifies exactly what they're talking about rather than taking away rights.

I think the spirit is to make a better, more transparent issue, as Joan has said. I believe this testimony on record does mean that is the spirit of this hearing. And that can be referred to by any lawyer in this country in a court case.

So it is a protection that's there, and I think it's being clarified by our officials.

The Chair: I'm sure everybody's asking just to make sure it's clear, because there is confusion.

I'll get to Steve, who's trying to correct our understanding of what the existing law says about appeal rights and what this new law says about them. And call them appeal rights where you will—either in H and C, or clause 25, or here, there; they're all over the place. Maybe it'll help if we can get a chart that will help us out in that thing.

But I'm going to go to John, and then Steve.

Mr. John McCallum: I have one simple question I wanted to address to Joan.

I've already indicated that this is not my first choice in the best of all possible worlds, but it's another matter to start throwing around words like “un-Canadian”.

My understanding of the discussion yesterday on 25 is that we established the minister has the right to refuse always, but the individual, implicitly or explicitly—and I think we're coming back to that. At least implicitly every individual has the right to apply on humanitarian and compassionate concerns.

• 1730

So, yes, we've taken away some judicial appeal rights, but Judy seemed to be saying no appeal of any kind and that's un-Canadian. I believe factually she's wrong because everyone has the right to make that appeal on humanitarian and compassionate grounds. Is that right?

Ms. Joan Atkinson: Everyone has the right to make an application for consideration under H and C.

Mr. John Herron: For consideration.

Ms. Joan Atkinson: Well, whether you call it an appeal or whether you call it consideration of H and C...it's not an appeal to the IRB, but it is an application to have humanitarian and compassionate grounds considered by the minister.

Mr. John McCallum: Then the minister or her representative has to consider it.

Ms. Joan Atkinson: Exactly, and that decision is also subject to judicial review.

The Chair: Just to keep it real simple, some of us understand H and C. We're talking about no judicial appeal. Let's be clear. There's no judicial appeal, just so we know. There are appeal mechanisms, but not judicial. There are H and C appeals, there are whatever.... We've put fences around inadmissibility in some cases, but we're not talking about a judicial appeal.

Steve.

Mr. Steve Mahoney: Mr. Chairman, I've tried to do a comparison. People can't see this, but I drew the old Ben Franklin down the middle of the page. In the old bill and in the new bill we're talking about issues involving serious crime. In the old bill it was defined by the word “danger”. Many lawyers complained to us that this was too subjective and they wanted some way of defining that better. We've defined it as ten and two. Some of the lawyers say they don't like that, but it's a definition. And we all know that a sentence of two years or more in this country is pretty serious. So we've defined danger.

Under the old law there was, for lack of a better term, an appeal to the IAD, the immigration appeal division, and that was judicially reviewable. Under the new law there is a referral, if you will. I won't use the word “appeal” to get everybody excited. There is a referral to an independent adjudicator at the IRB. The decision of that independent adjudicator is also judicially reviewable—the same number of steps, different process. I acknowledge that.

If the decision after the JR and after all of these discussions—in both cases you can rest assured that this convicted criminal, having served two years out of a maximum ten-year sentence, will be represented by counsel and the arguments will be placed passionately on his or her behalf. After all of that has happened, there is still, in both cases, an opportunity to apply for humanitarian and compassionate grounds, failing which you're out.

That's what I've been able to understand of the difference between the two. If you want to hang your hat on the fact that the word “appeal” in the case of the IAD is now changed to a referral—based on analysis, by the way, that includes senior CIC officials considering personal circumstances, family ties, attachment to culture and language of their home country, immigration status, length of time in Canada, type and nature of the crime, whether it was violent or not. It's a very extensive review by that senior official before it even goes to this step.

So what we've done is replaced the appeal to the IAD with, call it what you want, an independent adjudicator who will have some form of a hearing at the IRB, both of which are judicially reviewable.

The Chair: No, it's not at the IRB. It's the immigration division of the IRB. It's an administrative thing, not a body.

Mr. Steve Mahoney: It's an independent adjudicator.

The Chair: All right. That's helpful.

Joan.

Ms. Joan Atkinson: I would just make one minor nuance to that. Under the current act and the new act: current act, danger opinion; new act, ten and two; current act, adjudicator at the IRB; new act, adjudicator at the IRB; current act, JR; new act, JR—judicial review. That's the process. Of course, judicial review, and then both current and new acts have H and C to the minister and judicial review.

That's five steps.

The Chair: Mark, did you have something?

• 1735

Mr. Mark Assad (Gatineau, Lib.): I have a small question. I don't know if it was here or if it was the minister who mentioned it, but in the current law, when there is a serious crime, when it's reviewed, there's only one in five cited for removal. Is that correct?

Ms. Joan Atkinson: That is correct. As I said before, going back to my assertion, we don't take these decisions very lightly. We do a very thorough review of all the circumstances and only decide to take enforcement action and start that whole process with approximately one out of five long-term permanent residents. So it's very few cases.

The Chair: CA-16

(Amendment negatived [See Minutes of Proceedings])

The Chair: We're going to adjourn to vote and come back and deal with PC-13.

By the way, as soon as we finish with the vote, would you please come here—the food is ready for the committee members and staff. So right after the vote, please come back here so we can resume.

• 1736

• 1831

The Chair: First of all, thank you all very much for waiting for us to get back. I hope I'm not rushing everybody.

We were still on clause 64. We were going to go to amendment PC-13.

Joan, when Steve took us through that chart of the old and the new, I think he did a very good job of trying to get us there visually, but I think there needs to be a little clarification. We don't want to leave the wrong impression with anybody, including the public, and so on, as to what the steps really are from the time a person encounters some sort of difficulties, the process and procedures that are available to him or her and what appeal mechanisms or referral mechanisms or judicial reviews are in place. I wonder if you want to do that, or I could ask Steve to clarify or go through it again so that we have a complete understanding. I know Jerry is asking the administration for a diagram.

Jerry, how are you doing back there?

Ms. Joan Atkinson: I believe we have a diagram.

Mr. Steve Mahoney: I see. I had to write mine out by hand.

Ms. Joan Atkinson: Well, we wrote ours out by hand, but I think Mr. Pickard has a diagram with him.

The Chair: Okay, Jerry, why don't you sit in the witness chair and we'll fire off some questions to you.

Go ahead, Jerry.

Mr. Jerry Pickard: Do you want me to swear?

The Chair: Sure.

Mr. Jerry Pickard: I'm sorry.

The Chair: I'll swear you in.

Mr. Jerry Pickard: Under the current act, a person would be convicted in the same process under the future act, Bill C-11.

Consideration by an officer is the same in both positions. Once convicted, there is a consideration by an officer. Then, under the new regulation, there would be a consideration of a senior official looking at all the information coming into the process, and it goes on to an adjudicator if he decides that it should be submitted to the adjudicator.

So after the officer has considered the issue, a senior official would look at all the information and weigh all the items that Joan had talked about—family, how long a person has been here, all the different variables. Then it would go on to a judicial review. Both systems were basically the same up to that point. Once it gets beyond a judicial review, there's a danger opinion given in the present act. There is no danger opinion, no review at that point. The judicial review ends the process in the new Bill C-11.

• 1835

So they had a danger opinion given and—

Mr. Steve Mahoney: Where?

Mr. Jerry Pickard: That would be under the old act.

Mr. Steve Mahoney: Under what? Where did they get the opinion? Who gave it?

Ms. Joan Atkinson: The minister's delegate issued the danger opinion.

Mr. Jerry Pickard: Okay, a danger opinion would be issued, and the step then would be possible application to the minister for compassionate humanitarian review.

So the difference is a danger opinion given at final—one step in there—before it goes to the minister for compassionate and humanitarian review, as I understand it.

The Chair: Between what you and Steve did, I think it's good, but let's just be clear. There is one step missing in the new Bill C-11 versus what was there in the old act, right?

Mr. Jerry Pickard: Yes, and that's the danger opinion issuance at that point.

The Chair: All right.

Judy.

No, I better go to PC-13, and let John introduce his—

Ms. Judy Wasylycia-Leis: There's a point to be made on this.

I think that's accurate to a point, except you don't take into account the result I referred to earlier, that being the Supreme Court decision on Baker, which found that under the old act, the present act, the ability under subsection 70(5), the danger to the public section, the department wasn't obliged to give reasons for why that person was found to be a danger to the public, right? Then along came the Supreme Court in the Baker decision, which said there had to be reasons given, an opinion tabled, as to why that person was a danger to the public.

What this bill does, according to at least some of the testimony we heard, is take that away. We're back to where you were trying to go without the court's decision, but we're just achieving it another way.

Ms. Joan Atkinson: What we have done in Bill C-11 is remove the danger opinion process. We have replaced it with an objective, transparent standard, which is the ten and two: a conviction that could be punishable by ten years, with a sentence of two imposed. It's not a case of reasons for decision or anything like that. It is replacing the danger opinion process with an objective standard, and it—

The Chair: Steve.

Mr. Steve Mahoney: I think the intent of the new bill is to allow us to speed up the process to deport people who have been convicted and served under ten and two, and to reduce the delays.

In what I outlined here, I had the danger appeal in (2), where it's replaced because many of the same lawyers who now argue against this new process argued that a simple danger appeal or a danger decision was too subjective, that they couldn't get a handle on defining it, etc. Now it has been defined with ten and two.

When I went through this, I said the difference between the old and the new is that, under the old, they would appeal to the IAD, which would be judicially reviewable. Under the new, they wouldn't appeal, they would go to an independent hearing—or whatever you want to call it—with an adjudicator at the IRB, once all of the examinations have been conducted by a senior staff person. So call it a kick at the can, if you will—I don't really care what you call it—but in each case, they're just different.

Joan, to add one little thing, you said that under the old system, there was an appeal to the IRB, as well as to the IAD, both of which were judicially reviewable. That's what I thought I heard you say.

Ms. Joan Atkinson: No, what I said was that your characterization is correct, except that they don't have an appeal.

• 1840

Under the current act, they do not have an appeal to the IAD. That's just like under the current act, under which they go to an adjudicator. It's the same.

What Mr. Pickard has pointed out is that the danger opinion is actually issued after the adjudicator has rendered a decision, and then they have no right to an appeal. They do not go to the IAD. That's just like in the new system, in which we have replaced the danger opinion with the ten and two.

But they'd still go to an adjudicator, and they'd have their case assessed by an adjudicator. It's due to the facts that, first, the adjudicator has determined that they are inadmissible, and, second, that they have been convicted of an offence that is equivalent to ten and where two years have been imposed, that they do not have the appeal.

The Chair: And that's the missing step.

Ms. Joan Atkinson: The missing step is the danger opinion process.

The Chair: Right.

Mr. Steve Mahoney: I guess what you're really saying is that I should take this danger opinion thing and move it somewhere else.

Ms. Joan Atkinson: Yes, and you should change it from IAD appeal to IRB adjudicator, because it's the same on both counts.

Mr. Steve Mahoney: Okay, so it should be an IRB adjudicator.

Ms. Joan Atkinson: Right.

Mr. Steve Mahoney: At what point under the existing system do they get to go to the IAD?

Ms. Joan Atkinson: They don't.

Mr. Steve Mahoney: At all?

Ms. Joan Atkinson: No, they don't.

Mr. Steve Mahoney: Period.

Ms. Joan Atkinson: Exactly.

Mr. Steve Mahoney: So there is no missing step?

Ms. Joan Atkinson: No, the only change in whether we call it a step or we call it a change—

Mr. Steve Mahoney: You've defined danger as ten and two.

Ms. Joan Atkinson: Exactly.

Mr. Steve Mahoney: So there is no missing step.

Ms. Joan Atkinson: The danger opinion is issued after they've been to an adjudicator in the current system. In the new system, the adjudicator finds that, because they've been convicted of the offence that's ten and two, they don't have an appeal right.

Mr. Steve Mahoney: Under either system, both decisions of the adjudicator are “JR-able”.

Ms. Joan Atkinson: Exactly. That decision of an adjudicator—which, again, is the IRB, the independent tribunal—is “JR-able”.

The Chair: Could you just answer Judy's question with regard to the Supreme Court decision on Baker, just so we have an understanding of what happened there and how the new bill would have responded to that situation?

Ms. Joan Atkinson: I'll ask Daniel to take that.

Mr. Daniel Therrien: I'm not sure Baker is particularly relevant here. There is no question that the Supreme Court, in Baker—which was an H and C decision, not an appeal decision—said that where important decisions are made affecting important interests, reasons must be given. That continues with Bill C-11.

What I think may be more relevant is that the Supreme Court, in an earlier case, Chiarelli, said very clearly that there is no constitutional right to an appeal to the IAD for criminals. There is no such right under the charter.

The Chair: Judy, finally, and then we'll go to PC-13.

Ms. Judy Wasylycia-Leis: What I was trying to suggest is that, rather than deal with what the Supreme Court said in the Baker case, which was really all about accountability, the government has chosen a new path, and that is through Bill C-11.

If we're going to compare what's in this bill to the way things used to be, we should really go back not to the last change in 1995, but to the way it was originally, when it was in fact built into the law that one would have regard for the circumstances of the case, and, depending on that, the person would not be removed. There was an appeal. There was a process to allow for this. Now that whole system....

We've gradually moved. We went to this danger to the public in Canada route as a result of the Just Desserts issue, and we ran into some trouble with the courts because of that. Now, rather than fixing that problem and putting more accountability in place, we're going to find a way to bypass the process and really speed it up, as Steve said. It doesn't seem to be consistent with the traditions and history of this country in terms of dealing with such situations, though.

Ms. Joan Atkinson: I think I'd add to that point that we are accountable. There's judicial oversight of this process. These decisions are judicially reviewable, and the Federal Court has imposed, through that process, the standard that everything is done in accordance with the charter, in accordance with due process, procedural fairness, and natural justice.

• 1845

So I think there is accountability in the system, and the judicial oversight of the decision-making process guarantees that.

The Chair: Okay, let's get to PC-13, John.

Mr. John Herron: All I know, Mr. Chair, is that when members of both sides of the House toured, we expressed concern on this particular point. We're now in a situation in which it's no longer a concern. Somewhere, there is an epiphany that has arisen.

The amendment we've offered—and we didn't want to do this in all circumstances, but for permanent residents—is for those individuals to have a different status. Both sides of this table concurred that if those individuals were here for five years, then they would have a chance to make an appeal.

My intent is that, if there is a heinous crime—whether it's murder, rape, physical harm, or bodily harm—then there's a price to pay for that. Crimes of that nature usually carry over two years—and they should—and there's a very legitimate public policy issue here. When you commit a crime of that nature, you have forfeited the right to reside in Canada at that point.

The issue that comes into concern, and where this is so broad, is in the fact that it's two years or ten. Two years is serious. We also know that, in this judicial code right now, if you do receive a penalty of two years, you've done something that requires a serious amount of redress from the judicial code. But some of that might be on a one-time basis, such as when an individual was caught with narcotics of some form and had no previous record whatsoever. Or it could be a white-collar crime. Traditionally, we would not have put those people in the category of...what was the terminology before?

Ms. Joan Atkinson: Danger to the public.

Mr. John Herron: Yes, danger to the public.

The point is that this is a compromise amendment proposed by the CBA.

Clause-by-clause is shortly becoming reaffirmed in terms of it being a useless exercise, because—

An hon. member: [Inaudible—Editor].

Mr. John Herron: No, seriously, we spent taxpayers' money going coast to coast—

An hon. member: [Inaudible—Editor].

Mr. John Herron: This is my time. I'm talking about the amendments.

The Chair: I know, but we've passed eighteen or twenty amendments, so I wish you wouldn't suggest the amendments...we've passed some of yours, some of the Bloc's, some of the Alliance's, and some of the Liberals', while some have been useless. The amendments have been a result of the representations made.

I don't know why you presuppose what is going to happen on clause 64 or clause 65. This is not the only issue. There are 200 clauses. Just because you tend to think this is the most important...well, some of us might beg to differ about that.

Mr. John Herron: No, I don't think that. There are ones that are actually more important than this.

The Chair: Okay, well—

Mr. John Herron: I'm just trying to stick with the consistency about what I saw coming from the committee level, and if this kind of commentary bothers you, then good. It's because that's the problem Canadians have with the committee process and the clause-by-clause process. If it bothers members on both sides of the table, it should. That's the parliamentary reform that Canadians want to see addressed. That's the issue in play.

What I'm saying is that if we're going to spend and invest taxpayers' dollars in going coast to coast, say something to individuals in Vancouver, Winnipeg, and Montreal, and then get to committee and vote differently, that's absolutely the highest level of hypocrisy.

I move my motion in that nature. That was a concern for most members, and I'd entertain further discussion.

The Chair: Well, thank you, Mr. Chairman.

Steve.

Mr. Steve Mahoney: Well, without stoking any fires unnecessarily, I'll temper my remarks.

It's always interesting to me that the opposition sometimes opposes for the sake of opposing. You can argue it on both sides.

But in clear reality here, I don't think there has been an epiphany; I think there has been some clarification. I've heard members say to me here today that they hadn't heard this put that way before, when you got into the ten and two, the danger section, and that kind of explanation. I presume you were not on the trip to Vancouver, where the staff would perhaps have been given an opportunity to clarify that particular issue. We all know that's the whole purpose of clause-by-clause.

• 1850

I just wanted to say that I agree with Judy—and she might be shocked by that—in that I think the change to this does go against the traditions of this country. The traditions of this country have proven to be very tragic in many ways, because we could not quickly, properly, and efficiently get serious criminals out of this country. Vivi Leimonis is a clear example of someone who lies in the ground as a result of the ability to deport an individual.

So, yes, it goes against and changes those traditions, and it puts in place a regime, under this minister, that will deport serious criminals under the guidelines that are outlined here. They had all better be aware that these are the rules if they decide to walk into a Just Desserts and blow some innocent person away. I think it's about time we made such a change in this country.

The Chair: Jerry.

Mr. Jerry Pickard: Thank you, Mr. Chairman.

I really believe safety is important, and it's important in this issue.

I do want to go back to the fact that this is a process, and in this process there are many safeguards. I think my colleague across the way, John, tried to point out that there are crimes for which a person shouldn't be under a threat of being put out of the country under ten and two. But the fact is that we've already heard from our witnesses that there are all kinds of implications in various issues that have to be there: family connections, the time they have been in the country, whether they are a threat to the country, or whether they're a threat to persons in the country. All of these things are taken into consideration, so it's not automatic at any time. It's only a guideline by which a decision then can be made.

I think we're taking it as if this person is handcuffed and sent out of the country without the guideline applying. That senior official has to apply that guideline. It has to be done after the papers are all filled out, after the officer has done it. A senior official then takes it and goes through all of the points that have to be done. So it's not automatically putting a person out of the country. In the very serious ones, I guess we may wish for them to be put out of the country, and I believe the Canadian public would wish for that to happen under certain circumstances.

So I think it is in the spirit of Canadianism, and I think it is in the spirit of being liberal, that the amendment is there.

The Chair: Inky, with the final comment.

Mr. Inky Mark: In addressing amendment PC-13, I certainly support it.

What it talks about is permanent residence. That's a debate we had in terms of definition and reference to foreign nationals. I probably need to ask the question of how foreign nationals will be addressed in this clause. If it's not necessary, then perhaps the amendment is not necessary.

The Chair: Under the clause, Joan, is there a distinction between a foreign national and a permanent resident, in terms of its application? I think there is in the inadmissibility clauses. If you look, there is a big distinction between warrant and not warrant, and arrest and not arrest, and so on and so forth. But with regard to clause 64 or clause 65, is there a distinction between a foreign national and a permanent resident?

Mr. Joan Atkinson: No, but it will be amended to read “foreign national and permanent resident”, as per the amendment we made at the beginning.

The Chair: But there is a distinction in the application of this in other sections, in inadmissibility. To a certain extent, the permanent resident is treated somewhat differently from a foreign national, who is described now as someone who's here on a temporary basis.

Ms. Joan Atkinson: Yes.

Go ahead, Elizabeth.

Ms. Elizabeth Tromp: This is about permanent residence when we're talking about the ten and two. Visitors would not have this appeal right, because they would go through an inadmissibility hearing, and that would be the process that would apply there.

The Chair: So ten and two is the—

Ms. Elizabeth Tromp: Permanent residents can appeal to the immigration appeal division.

The Chair: In other words, temporary residents don't even have the ten and two.

(Amendment negatived—[See Minutes of Proceedings])

(Clause 64 agreed to)

• 1855

The Chair: So clauses 65 and 66 have been done. Clause 67 has a G-22 amendment to it. Who wants to do this one?

(On clause 67—Appeal allowed)

Mr. John McCallum: It's just a technical amendment, to be consistent with other things we've done about humanitarian and compassionate considerations.

(Amendment agreed to [See Minutes of Proceedings])

(Clause 67 as amended agreed to)

(On clause 70—Decision binding)

The Chair: For clause 70 we have three amendments, BQ-19a, CA-17, and NDP-42.

NDP-42 comes first. Judy, you want to delete lines 39 to 45 on page 30 of the bill. It's 137 in the book of amendments.

Ms. Judy Wasylycia-Leis: Yes, I move it.

The Chair: Do you want to explain it to us?

Ms. Judy Wasylycia-Leis: I'm trying to find my pack here. Let Inky go first.

The Chair: It's in the decision-binding category, okay. Same thing. You go ahead, then, Inky.

Mr. Inky Mark: It's about the leave provision.

Ms. Judy Wasylycia-Leis: Yes, it's all the same.

Mr. Steve Mahoney: How many of them are there?

Ms. Judy Wasylycia-Leis: At least two.

The Chair: All three are the same, yes. Inky, do you want to take us through it?

Mr. Inky Mark: Again, it's the same argument about judicial review. We just want to take the application for judicial review and either put it in or take out the leave provision.

The Chair: Okay. Madeleine.

[Translation]

Ms. Madeleine Dalphond-Guiral: That is not exactly it. What we are removing is really the application for leave. So subclause 70(2) would read as follows:

70. (2) If the Minister commences an application for judicial [...]

[English]

The Chair: Oh, for judicial, okay.

[Translation]

Ms. Madeleine Dalphond-Guiral: So we would remove the reference to the "application for leave."

[English]

The Chair: Then let me treat yours separately, Madeleine. NDP-42.

(Amendment negatived—[See Minutes of Proceedings])

The Chair: CA-17.

(Amendment negatived—[See Minutes of Proceedings])

The Chair: On BQ-19a, do you want to just...?

[Translation]

Ms. Madeleine Dalphond-Guiral: That is fine. Should I repeat what I said?

[English]

The Chair: Sure, for the record.

[Translation]

Ms. Madeleine Dalphond-Guiral: We are not asking that subclause (2) be completely removed. All we would remove are the words: "An application for leave to commence an application for judicial review." We do not think the application for leave is necessary. So subclause (2) would read as follows:

70. (2) If the Minister commences an application for judicial [...]

Is that okay?

[English]

The Chair: Okay, it has the same effect. BQ-19a.

(Amendment negatived—[See Minutes of Proceedings])

(Clause 70 agreed to)

(On clause 72—Application for judicial review)

The Chair: We have CA-10a, PC-14, CA-18, PC-15, G-23, and BQ-19a.

Mr. John Herron: I'm not moving PC-14.

The Chair: Okay.

Ms. Judy Wasylycia-Leis: I must have slipped up.

• 1900

The Chair: Okay. CA-18 I think is first. This is the appeal question outside the country, essentially. Clause 72, judicial review. You're up first, Inky.

Mr. Inky Mark: It's actually CA-10a.

The Chair: I haven't got CA-10a.

Mr. Inky Mark: It's page 72 in the fat book that you don't have in front of you, from yesterday.

The Chair: You're going to have to read it, because that one was gone by the wayside last night.

Mr. Inky Mark: The subclause will be numbered 27(1), and I'll read the amendment:

A permanent resident of Canada may make an application for a judicial review by the Federal Court with respect to any matter relating to the permanent residency.

So it's the same discussion we've had over the last 20 minutes.

The Chair: I think it was Jerry, or someone, when we were discussing your G.... The proper place for that would have been clause 72. That's why we're dealing with it here. It's a little different from your CA-18. Do you want to do this one too?

We'll deal with yours first. I am just saying there are two in here. Is there any difference? It's in division 8, which is the judicial review section, as opposed to the discussion we just had, which was on the right of appeal. So that people can understand how this bill might work, what's the significance of this particular section? Why is this one not the same argument? Is this a different place?

Ms. Joan Atkinson: I think the issue that's being looked at here is how judicial review is done. The question of leave to seek judicial review is the issue. I think that's what Mr. Mark was referring to in his proposed amendment to clause 27, which more accurately should be dealt with here in division 8 on judicial review.

The Chair: So the key, just so that I understand it, Inky, is an application for leave to the court.

If I could, what does the existing act say?

Ms. Joan Atkinson: The existing act has a leave requirement for all decisions that are made in Canada, decisions of adjudicators, decisions of immigration officers in Canada, decisions of the IAD, decisions made by officers at the port of entry. All of those decisions are judicially reviewable, but with leave from the Federal Court. With decisions taken by visa officers outside Canada affecting people who are not in Canada and may have no connection to Canada, except that they may have an immigration lawyer or practitioner, there is no need to seek leave from the Federal Court to launch a judicial review.

So what Bill C-11 is doing is levelling the treatment between those outside Canada and those in Canada and putting the leave requirement on for all applications to the Federal Court for judicial review of all decisions made under this act.

The Chair: Okay. Inky.

Mr. Inky Mark: This amendment broadens the definition, so irrespective of whether you're out of the country or in the country, if you're a permanent resident, you have the right to make application.

The Chair: Is that a fact, Joan? Are we talking about permanent residents who are outside the country?

Ms. Joan Atkinson: I was talking about anyone who wishes to seek judicial review of a decision. So it could be a permanent resident seeking a judicial review of a decision made with regard to that permanent resident, or any foreign national, a refugee claimant, a visitor outside Canada, a student, or an immigrant applicant.

The Chair: Okay.

Ms. Joan Atkinson: Or Canadian citizens, for that matter.

The Chair: Okay. John.

• 1905

Mr. John Herron: I would like to ask the witnesses how many applications they get annually from overseas to actually process through the courts.

Ms. Joan Atkinson: From overseas that number is about 900 applications for judicial review annually, and that represents a significant increase in the last five years. It's gone from about 100 to 120 applications a year to 900 and more, and it continues to grow.

Mr. John Herron: My second question is, how many would you have in Canada?

Ms. Joan Atkinson: The numbers in Canada are higher.

Mr. Daniel Therrien: There are around 6,000. It fluctuates from year to year.

Mr. John Herron: So we're talking about one-seventh of your work right now?

Ms. Joan Atkinson: We're talking about a caseload that is quite different from the types of decisions that are made in Canada. Of those 6,000 or so applications, the vast majority are probably made through the board.

Mr. Daniel Therrien: The number of initiating applications, whether it's a leave application or an application for judicial review, against visa officer decisions in Canada is perhaps one-seventh. But with the time the court spends hearing applications once leave is granted, or in visa cases directly after the application is made, about one-half of the hearing time is devoted to judicial review of visa applications.

Mr. John Herron: My last question, Mr. Chair, is, of those 800, how many are refugee cases, compared with other types of applications?

Ms. Joan Atkinson: Very few. I don't have the exact breakdown, but traditionally, the judicial review applications come from independent immigrants and business immigrants. Very few come from refugees seeking resettlement from overseas, and very few come from visitors, students, and temporary workers.

Mr. John Herron: So if there are very few from refugees, if it were broadened for refugee applications to have access to court, that wouldn't be an immense workload.

Ms. Joan Atkinson: If I could clarify that, the leave provision does not mean that people do not have access to the Federal Court. The leave requirement is a screening mechanism that allows the Federal Court to make some decisions up front on whether or not the case warrants a full judicial review. We are not talking about denying access to the Federal Court for anybody.

The Chair: In think that's an important distinction.

Steve.

Mr. Steve Mahoney: A couple of points were not made. This bill expands the application period from 15 days to 60 days, to allow applicants abroad to apply. That's a pretty substantial increase in the time that's necessary to do this.

I want to add also that the minister has extended an invitation, or an opportunity, to work with the CBA and others to develop an alternative dispute mechanism in this. They have not taken up the offer as of yet. I'm presuming they will once the bill is passed. Presumably, they don't want to do it now because they would see it as softening their opposition to the bill. But the minister has stated she's open to a new form of ADR that, hopefully, can be worked out to everyone's satisfaction.

The Chair: Okay.

Madeleine.

[Translation]

Ms. Madeleine Dalphond-Guiral: Thank you, Mr. Chairman.

Under the current act, I imagine that application for leave precedes the judicial review. I would like to know how many of these applications for leave are scrapped.

[English]

Ms. Joan Atkinson: For the judicial review of overseas visa applications, something under 50% of applications are withdrawn or lose their judicial review. I don't have the exact figures in my head, but it's about 50-50 between those we consent on or the government wins on the judicial review and those where the judicial review is withdrawn or the court denies the judicial review.

[Translation]

Mr. Daniel Therrien: To answer your question about applications for leave, the percentage that is granted varies between 10 and 15%. However, we must remember that almost all rejected refugee claimants make an application for leave. Approximately 80% of the people who are turned down make an application for leave. This is an exceptionally high rate for western countries. So while the approval rate for applications for leave is relatively low, between 10 and 15%, I think this can be explained in part by the fact that almost all claimants who are turned down appeal the decision.

• 1910

Ms. Madeleine Dalphond-Guiral: In the case of refugees—we are not at refugees, but I am going to ask the question nevertheless—if they are not entitled to judicial review, does that not mean that there is something a little wrong somewhere?

Mr. Daniel Therrien: Ms. Atkinson was commenting on this earlier. These individuals have access to a review of their file by the Federal Court. It is a review of the file, but they have an opportunity to demonstrate how the IRB decision is illegal. Their file is reviewed on its merits, and it is only when the Court is of the view that the case has no merits that the application for leave is rejected. So there is a serious review by the Federal Court of the merits of the case presented to them.

[English]

The Chair: Judy.

Ms. Judy Wasylycia-Leis: Do the rules allow us to make a motion to delete a whole clause?

The Chair: Right now I'm dealing with CA-10a.

Ms. Judy Wasylycia-Leis: What I will do on this motion depends on whether or not the rules allow me to move to delete. I think the concern here is that this clause is not necessary. We're putting in place another filter. I think we heard from over half a dozen major organizations suggesting that we get rid of this leave to appeal provision entirely. So I'd like to find a way to do that.

The Chair: Okay. In answer to your question, no, it's not allowed in the rules. At the report stage I suppose you can do it, but that's in the House of Commons.

Okay. I guess that's it. CA-10a.

(Amendment negatived—[See Minutes of Proceedings])

The Chair: PC-14. You withdrew that, didn't you, John? You withdrew 15, I'm sorry. PC-14 is the same thing, right?

Mr. John Herron: What I wanted to add is that requiring court access for refugees seems to be a very small packet, compared to how many you actually review. We just carved out that I might want to do something at report stage on that particular issue.

Maybe the witnesses could give me how many numbers roughly you get with the refugees overseas?

Mr. Daniel Therrien: It's less than 100 per year. It is less a question of volume at that point than equity between groups.

The Chair: PC-14 and -15 then are withdrawn.

BQ-19a.

[Translation]

Ms. Madeleine Dalphond-Guiral: I would request a vote, Mr. Chairman, even though we might assume...

[English]

The Chair: CA-18 is also here, but it's the same thing, right? You want to go CA-18?

Mr. Inky Mark: Again, it allows application to be made to the courts.

The Chair: It's the same issue, but a different place.

(Amendment negatived [See Minutes of Proceedings])

The Chair: BQ-19a. It's the same thing—même chose.

(Amendment negatived [See Minutes of Proceedings])

The Chair: There's a G-23 here, which is a technical amendment.

Steve?

Mr. Steve Mahoney: Yes it is, replacing line 17 on page 31 with the following:

subject to paragraph 169(f), notice of the application shall be served

(Amendment agreed to)

(Clause 72 as amended agreed to)

(On clause 73—Right of Minister)

The Chair: We have BQ-19b and CA-19.

• 1915

[Translation]

Madeleine, my darling.

[English]

Mr. Steve Mahoney: It's the same issue.

[Translation]

Ms. Madeleine Dalphond-Guiral: All right, we will withdraw it.

[English]

The Chair: It is in a different place. It's okay, but it's clause 73. I have to go through the motions, as you know. Do you withdraw that?

[Translation]

Ms. Madeleine Dalphond-Guiral: Yes, dear.

[English]

The Chair: Amendment CA-19. Is it the same thing? Do you want to withdraw it?

Mr. Inky Mark: No, I'll table it and you vote on it.

(Amendment negatived—[See Minutes of Proceedings])

(Clause 73 agreed to)

(On clause 74—Judicial review)

The Chair: On clause 74 we have amendments CA-20, NDP-43, BQ-19c and BQ-19d.

Amendment CA-20, clause 74, again, with judicial review, but....

Mr. Inky Mark: Amendment CA-20—it's a little more definitive on lines one to six. It expands the standards.

The Chair: It is the same intent, though?

Mr. Inky Mark: The same intent. How about amendment NDP-43?

[Translation]

Ms. Judy Wasylycia-Leis: It is the same thing.

[English]

The Chair: Amendment BQ-19c. No, this is a little different, isn't it? “The judge shall fix the....”

Mr. Steve Mahoney: The same result.

[Translation]

Ms. Madeleine Dalphond-Guiral: Yes, yes, I know. I will withdraw it, but it makes me sick at heart.

[English]

The Chair: It has the same result, okay.

Mr. Steve Mahoney: Are you withdrawing them?

Ms. Judy Wasylycia-Leis: No.

The Chair: I mean BQ-19c and BQ-19d. Do you want to withdraw them, or no?

[Translation]

Ms. Madeleine Dalphond-Guiral: Yes, agreed.

[English]

The Chair: Okay, they are withdrawn.

We will now vote on amendment CA-20.

(Amendment negatived—[See Minutes of Proceedings])

The Chair: We now vote on amendment NDP-43.

(Amendment negatived—[See Minutes of Proceedings])

(Clause 74 agreed to)

(On clause 75—Rules)

The Chair: We have amendments NDP-44, CA-21, NDP-45, and BQ-19e.

BQ-19d on clause 74 was removed, because she asked for it to be.

We're on clause 75, NDP-44.

Mr. Steve Mahoney: It's the same result. It eliminates leave.

The Chair: Amendment CA-21 is the same thing, NDP-45 is the same thing, and so is BQ-19...I have ee, okay, BQ-19e and d1, just to cover it off.

Okay, BQ-19d1 is the first one. Let me deal with them in the order I have them here. BQ-19d is being put to a vote.

(Amendment negatived—[See Minutes of Proceedings])

The Chair: Amendment NDP-44.

(Amendment negatived—[See Minutes of Proceedings])

The Chair: Amendment CA-21.

(Amendment negatived—[See Minutes of Proceedings])

The Chair: Amendment BQ-19e.

(Amendment negatived—[See Minutes of Proceedings])

The Chair: Amendment NDP-45.

(Amendment negatived—[See Minutes of Proceedings])

(Clause 75 agreed to)

(On clause 76—Definitions)

The Chair: There's a government amendment to clause 76, technical in nature, I would imagine, and it's amendment G-24.

Mr. Steve Mahoney: It's simply replacing lines 36 to 39 on page 32 with the following:

“judge” means the Associate Chief Justice of the Federal Court or a judge of the Trial Division of that Court designated by the Associate Chief Justice.

• 1920

It's technical wording.

(Amendment agreed to)

(Clause 76 as amended agreed to)

(On clause 77—Referral of certificate)

The Chair: John, PC-16.

Mr. John Herron: I believe PC-16 advocates that a person considered for determination of criminal or security inadmissibility is notified. Bill C-11 does not require a person be notified of commencement proceedings following referral of certificate to Federal Court.

I may ask the officials, or I will ask them, to help me with the explanation. My interpretation of the act is that the person may not know that they've been under investigation at this point until the last minute. Then they have to scramble in order to put together a legal case.

The Chair: John, the intent of yours then would move from “may” to “shall” give notice, right?

Mr. John Herron: Right.

The Chair: Okay.

Steve.

Mr. Steve Mahoney: We've reviewed this and we agree with it. We're prepared to agree with the members.

The Chair: Okay, then change the word “may” to “shall cause a notice to be served”. Amendment PC-16 has been moved.

(Amendment agreed to—[See Minutes of Proceedings])

(Clause 77 as amended agreed to)

The Chair: Clause 78—-

Mr. Steve Mahoney: I'm sorry, was there not an NDP amendment on 77?

The Chair: No, NDP-46 on 78.

Mr. Steve Mahoney: There was one on 77.

The Chair: Wait a minute.

Ms. Judy Wasylycia-Leis: This is a question mark in terms of one I introduced earlier, 45.1. It was suggested it go under 46.

The Chair: Thank you. Let's deal with this one. Just let me get some paperwork on it. You're right, we referred it to this section. What number was that?

Ms. Judy Wasylycia-Leis: Well, I had it in as 45.1.

The Chair: It was with regard to security. What's the number on it? NDP—-

Ms. Judy Wasylycia-Leis: It was NDP—-

The Chair: It must have been early on.

Ms. Judy Wasylycia-Leis: I don't have that.

The Chair: NDP-34a.

Ms. Judy Wasylycia-Leis: It was a four-pager.

The Chair: Yes, that's right. Somebody said to refer it to 77 because that would be a better place to put it.

Mr. Steve Mahoney: Is this a SIRC issue?

Ms. Judy Wasylycia-Leis: Yes.

The Chair: Yes, this is a SIRC issue.

Ms. Judy Wasylycia-Leis: Basically the amendment is to restore the process as it exists under the act now, the sense being that it's more thorough and more transparent. It gives better notification, better due process, not dependent on the judge alone. It allows for hearings and allows the full process. Many groups raised this issue.

The Chair: I remember it.

It was Daniel who indicated that it probably should go with 77. Or were we going to create a 77(3) or something like it?

I want to understand, because some of us don't have the paperwork, first of all. I want to make sure we're dealing with it in the right place and we know exactly what the issue is.

Have you got NDP-34a in front of you?

Mr. Daniel Therrien: Not in front of me, but I remember what it said.

The Chair: Okay. Well, maybe you could help Judy and us out again.

Mr. Daniel Therrien: It would go either at the very beginning or at the very end of division 9. This would create a similar process to the Federal Court process for looking at confidential information.

This is the right division. But it's before a different body, so either it would precede the Federal Court review or it would follow the Federal Court review.

The Chair: Okay.

Steve.

Mr. Steve Mahoney: To the amendment—I'm concerned that we're dealing with the wrong issue. Any person may file a complaint with SIRC concerning CSIS. We're already.... It's the wrong issue, in the wrong place, in the wrong bill, and therefore I can't support it, and don't understand why we would try to put it in here.

• 1925

The Chair: Well, if we could find the amendment, we could do it. Unfortunately, we don't have the paperwork. It is an important issue, I know. That's why we want to refer it here—

Mr. John Herron: Can we let it stand and come back?

The Chair: I'm going to come back to it once we get some paperwork. I have absolutely nothing in front of me with regard to that NDP-34a, so can you just hold on that, Judy, for a moment?

We'll move to clause 78, if we could, with NDP-46 and G-25.

(On clause 78—Judicial consideration)

Ms. Judy Wasylycia-Leis: The amendment basically speaks to deleting, on page 33, paragraph 78(c), which says:

(c) the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit;

The concern we heard in the hearings was that this is a brand-new provision in terms of the act and that the notion of informal hearing is disturbing. The feeling was that a permanent resident being accused of representing a security risk needs to have the benefit of all the protections that formal proceedings can offer. I thought the best way to deal with this would be to delete the section, because it's so new and it's causing so many negative reactions.

The Chair: Can I just ask of the administration, how does a judge do something informally? Is that the biggest concern, Judy? Is it that word “informally”? Who picked that word? Or is that something synonymous with judges and courts? Not unless you're in Judge Judy's court might something happen informally, but....

Ms. Joan Atkinson: It's not new. It is consistent with the existing requirements when the court is reviewing security certificates under the existing act. The intent here is to ensure that these hearings are held as expeditiously as possible, taking into account of course due consideration for fairness and natural justice.

The Chair: Where does this word “informally” come from? I would agree that Judy's got a point. It's as if it's casual—just deal with it casually. If the word should be “expeditiously”, or it should not.... I mean, “informally” may conjure up that it's not as serious as somebody would suggest. Is that a word that we've taken out of the existing act? Would there be a problem if we removed it?

Mr. Daniel Therrien: It exists in other legislation. This is a special process, of course, where confidential information is reviewed. So it's an indication to the court that the full rules that would apply in a normal process are not necessary. But of course this is applied by the Federal Court, so there is some formality necessarily to this process. But it's not unusual. When it's used in legislation, it does not have the connotation that you imply would exist in other contexts.

The Chair: Just know that Judy's reflecting what was heard. So people had the same impressions that she and I did.

Steve.

Mr. Steve Mahoney: If that's satisfactory, that's fine with me.

The Chair: Then can we remove either the word—

Mr. Steve Mahoney: No. The explanation, I thought, was that “informally” is an appropriate word in this case, because what you're really saying is you want the judge to deal with it. I mean, if it didn't include the words “and expeditiously,” then I might agree with that. But what it's really saying is don't get hung up on putting your robe on; deal with this.

The Chair: Do you want to put that in brackets, “don't put your robe on, worry about this”?

Mr. Steve Mahoney: We can put that in—“don't worry about your robe”.

The Chair: And that's what we mean by “informally”, that you don't actually put your....

Mr. Steve Mahoney: Yes, no wig, no robe. What's the problem?

The Chair: All right. NDP-46.

(Amendment negatived)

• 1930

The Chair: G-25. It's a government amendment. It adds the word “each”. Technically, it's on paragraph 78(e). We're adding the word “each” there.

Mr. Steve Mahoney: Instead of “the”.

The Chair: Are there any questions?

(Amendment agreed to)

(Clause 78 as amended agreed to)

The Chair: We're going to go back to Judy's clause 77.

Judy, you had originally given this so that we were going to be on subclause 45(1). You were going to add a subclause 45(1). If everybody just goes back to subclause 45(1), as an example, because that's where you thought it was appropriate.... It's the issue dealing with security intelligence review and so on. The administration advised that it should either go on clause 76 or clause 77.

Daniel has now indicated that it probably should go at the end of that division, so it could be—

Mr. Steve Mahoney: Did we not carry clause 45?

The Chair: No, no, don't forget, I'm just referring to where we dealt with it. It was at clause 45, but it probably should go at the beginning of—what's the division called—division 9.

So do you want to put your case now that we've got some paperwork on it?

Ms. Judy Wasylycia-Leis: Yes. Well, we've heard a fair bit of testimony from groups about the whole issue of review by SIRC. People who presented actually seemed to think that the way it is in the act now is better than the process outlined here. They argued before us that the current process is more thorough, more transparent, provides better notification, better guarantee of due process, is not dependent on a judge alone, permits broader scope for investigation, is more open, can call witnesses, and so on. We heard all those concerns.

There was a suggestion that we should try to amend the bill to afford automatic review of ministerial and security opinions by SIRC. Then it was suggested if we couldn't do that, we should—I'm just reading now from the research note. In the event the government is not willing to adopt this approach, the jurisdiction of SIRC with respect to permanent residents should be restored.

So this is an attempt on these four pages to really put back in this bill what's in the act now around review on security matters.

If you also recall, we heard quite a bit about the loss of the ability to go to SIRC and the need for us to ensure that kind of a process as opposed to a more subjective process, as outlined now.

Do you need any more?

The Chair: No.

Mr. Steve Mahoney: I don't think we need all that.

The Chair: Joan, perhaps you could address the concern that was raised by Judy with regard to SIRC and the Canadian Security Intelligence Service Act. What's the present process?

Ms. Joan Atkinson: The present process for security certificates are two different processes. There is the process, as described in Bill C-11, that applies to non-permanent residents when there is a security matter to be determined and two ministers have decided they should sign a certificate attesting to the security threat that the individual poses. And there is a process for permanent residents where there is a review by SIRC.

What the bill does is it consolidates. It simply makes it one process—the same process—for anyone, whether they're a permanent resident or a foreign national, where two ministers—the Minister of Citizenship and Immigration and the Solicitor General—have signed a certificate indicating that the person poses a threat to the security of Canada and then the review by a Federal Court judge.

• 1935

I should point out that SIRC's role with regard to hearing complaints against CSIS, including complaints made by permanent residents or foreign nationals with regard to their interaction with CSIS in the context of anything under the Immigration Act, will continue under the CSIS Act.

So we've removed SIRC from this particular act, but there still is a process, one we use now. Federal Court judges have experience with this process. They make determinations on security certificates under the current act. We are simply having one process instead of two different types of processes, so that all security certificates will go through the process with the Federal Court judge.

The Chair: Judy, if I can be helpful, clause 77 deals with this whole issue of certificates. If you look at the effect of the referral, or you read on, in clauses 78 and 79, you find examples of what the judge may or may not do.

Joan, is some of this stuff covered in the regulations?

Ms. Joan Atkinson: No. This all relates to fundamental rights, and so it's all in the act. The process for notification, providing the foreign national with an opportunity to be heard, providing the foreign national with a summary of the information or evidence, receiving into evidence information that is appropriate, is all in the bill in clause 78.

The Chair: Okay. Do you want me to put it, Judy?

Ms. Judy Wasylycia-Leis: Oh, yes, I want you to put it.

The Chair: Amendment NDP-34a. Where did you want to put it?

Ms. Judy Wasylycia-Leis: I would say at the start of division 9.

The Chair: That would be the amendment then. At the beginning of division 9 you would be putting that new section. It would be known as NDP-34a.

(Amendment negatived—[See Minutes of Proceedings])

(On clause 79—Proceedings suspended)

The Chair: Amendment G-26.

Mr. Steve Mahoney: This is technical, replacing line 31 on page 34 with:

On the request of the Minister or the foreign national

(Amendment agreed to)

(Clause 79 as amended agreed to)

(On clause 80—Determination that certificate is reasonable)

The Chair: We have amendments G-27, PC-17, NDP-47, PC-18, NDP-49.

I think the government one was up first, G-27.

Mr. Steve Mahoney: In line 45 on page 34 we wish it to read:

80.(1) The judge shall, on the basis of the

The Chair: That is “shall”, as opposed to “may”.

(Amendment agreed to)

The Chair: PC-17. John.

Mr. John Herron: Mr. Chair, this amendment provides an opportunity for a person to present evidence if considered inadmissible on security or criminal grounds. It would allow the person concerned to present evidence, which we consider to be fundamental justice in Canadian tradition. I haven't opened the bill to try to catch up, but I believe there's a situation where that individual may not be able to defend themselves, to actually present evidence that they got it right. That was a concern brought forth by Steve's friends, the CBA.

I'd like to ask the officials if our legal beagles at CBA are out to lunch, or what their interpretation is on this.

The Chair: I don't want you to answer whether they're out to lunch, but you could answer the question.

Ms. Joan Atkinson: Thank you, Mr. Chairman.

• 1940

I think again, as I said in clause 78, the individuals who are subject to a security certificate process already have an opportunity to be heard and to provide evidence to the judge concerning their inadmissibility and possible removal from Canada.

The Chair: Paragraph 78(i).

Ms. Joan Atkinson: That's already clearly enunciated in the bill.

The proposed amendment would have the effect of allowing them to do it again after the judge had rendered a decision on the reasonableness of the certificate. So it would add an extra step in the process.

Mr. John Herron: So they could do it again. They would have another crack at it.

Ms. Joan Atkinson: They would have another opportunity—

Mr. John Herron: I rescind.

Ms. Joan Atkinson: —to present evidence.

Mr. John Herron: There you go.

The Chair: You would like to remove PC-17?

Mr. John Herron: Removed.

The Chair: Okay. NDP-47.

Ms. Judy Wasylycia-Leis: Well, I'm not....

The Chair: The only thing I can tell you is that paragraph 78(i), Judy, refers—

Mr. Steve Mahoney: It's the same thing.

The Chair: —specifically to and is probably the same thing as what PC-17 just did.

Ms. Judy Wasylycia-Leis: Is it identical?

The Chair: Yes, pretty well.

Do you want to remove it or do you want us to deal with it?

Ms. Judy Wasylycia-Leis: I'd like a vote on it.

The Chair: Okay.

Mr. Steve Mahoney: I'd move a five-minute recess.

Ms. Judy Wasylycia-Leis: That's a good idea.

The Chair: Do you want to take one now?

Mr. Steve Mahoney: Yes.

The Chair: Okay, let's take a five-minute one.

• 1941

• 1951

The Chair: Order.

Judy's not here. I'm going to go to amendment PC-18.

Go ahead, John—amendment PC-18 on clause 80.

Mr. John Herron: Amendment PC-18 is on clause 80, and so—

The Chair: Subclause 80(3).

Mr. John Herron: Right.

It reads:

The final determination of the judge shall be subject to judicial review, by leave to the Federal Court of Appeal, consistent with current rights to seek judicial review.

The intent of the amendment is to provide judicial review to the...the final determination of the judge is subject to judicial review. I think the officials will say we're adding an additional step to this process, but again, with our tradition of—

Mr. Steve Mahoney: Overkill.

The Chair: Joan, what does the existing act say with regard to this? Is there a review provision?

Mr. Daniel Therrien: There is currently no appeal.

The Chair: So you're trying to create an appeal where there is none, John?

Mr. John Herron: Exactly. I'm trying to create more work for Steve.

Basically, what we're advocating is that judicial review is basic and should always be available, especially since Bill C-11 as laid out doesn't even notify the person concerned.

That's been fixed—

Mr. Daniel Therrien: Yes.

Mr. John Herron: —by that very prudent, thoughtful amendment that we passed—and the Liberals, who were so gracious to approve it. Nor does it allow them to present evidence, and that issue has been addressed as well.

Given that those two factors have been taken into place, I will rescind my amendment.

(Amendment withdrawn)

The Chair: We go to amendment NDP-47.

Judy.

Ms. Judy Wasylycia-Leis: Could I just get a clarification—maybe I'll withdraw this too. Are we saying that—

The Chair: I think Joan indicated that it's probably under paragraph 78(i), where the judge shall provide the foreign national with an opportunity to be heard regarding their inadmissibility. I think that's what you wanted.

It's already in there, but you can argue—

Ms. Judy Wasylycia-Leis: I would argue, since we heard testimony to this effect, that we need to make a very specific reference to what happens upon the determination of whether the certificate is reasonable. It spells it out more clearly if it's already there. There's nothing to lose and everything to gain. Let's go for it.

The Chair: Joan, do you want to just take us through this, even though it's an entirely different clause—it's clause 80. I thought it was referred to in paragraph 78(i), but I could be wrong.

Ms. Joan Atkinson: I think what's being referred to here is either a judicial review or an appeal of the judge's decision.

Let me speak first to the judicial review. This is a judicial review. Adding a judicial review of a judicial review is redundant, because the security certificate process—looking at whether the certificate is reasonable—is in fact a judicial review of the decision of the two ministers to issue a security certificate. Adding another judicial review is unnecessary. It's redundant. We have a judicial review.

I think the amendment that's being proposed here is an appeal to the Federal Court of Appeal on that judicial review that the Federal Court judge has made on the reasonableness of the certificate. I would say in response to that one that this process has been in place for over a decade. It has been tested; it has been litigated; and it has been found to be fair. The current act, as Daniel indicated, does not have an appeal to the Federal Court of Appeal for the decision of a Federal Court judge on the reasonableness of the security certificate.

• 1955

Again, our approach here is a key element of our ability to remove persons who pose a security threat to Canada. We're talking above the threshold of serious criminality; we're talking about a very small number of cases where the security threat is very significant.

Adding an appeal to the Federal Court of Appeal would considerably delay the removal process of those individuals.

The Chair: Okay, does everybody understand the issue?

Ms. Judy Wasylycia-Leis: I'd like to vote on it.

The Chair: Okay.

(Amendment negatived—[See Minutes of Proceedings])

The Chair: We move to amendment NDP-48.

Ms. Judy Wasylycia-Leis: Amendments 48 and 49 go together.

Both of these amendments deal with the concern we heard about—we've just been debating it—the right of appeal on a decision on a security certificate by the Federal Court.

Mr. Steve Mahoney: That's the same.

Ms. Judy Wasylycia-Leis: Yes, but maybe you'll find these more palatable in trying to further our collective interest in ensuring that people are treated justly.

Mr. Steve Mahoney: Criminals, you mean?

Ms. Judy Wasylycia-Leis: The right to appeal, due process.

(Amendments negatived—[See Minutes of Proceedings])

(Clause 80 as amended agreed to)

(On clause 82—Detention of permanent resident)

The Chair: Amendment NDP-50 is on clause 82.

Ms. Judy Wasylycia-Leis: Again, it's about due process. It's an attempt to eliminate the sweeping powers to detain without warrant.

The Chair: Well, this is an entirely different sentence—clause 82 is detention.

Do you want to just take us through this, Joan, for a second?

Ms. Joan Anderson: Clause 82 refers to detention for people who are the subject of a security certificate. This is a provision in the current act. I would point out that in clause 82, the minister and the Solicitor General may issue that warrant and arrest if they have reasonable grounds to believe the person is a danger to national security, to the safety of any person, or is a flight risk.

Again, it's taking the detention grounds and applying them specifically to those who are named in a security certificate. Don't forget, these are the very small number of exceptional cases in which two ministers have determined that national security is an issue and must be protected.

This allows the ministers to arrest and detain a permanent resident. In subclause 82(2), a foreign national other than a permanent resident shall be detained without the issue of a warrant. That's consistent with arrest with and without warrant elsewhere in the legislation.

Mr. Daniel Therrien: I would add that obviously, subclause 82(2) is an extraordinary provision to call for mandatory detention, but it's required by the nature of the people who are the subject of a certificate. That provision has been upheld by the courts as being consistent with the charter.

The Chair: Steve.

Mr. Steve Mahoney: Can you give us an example of the type of person...not the type of person, but how serious a threat this would be? What are we talking about?

Ms. Joan Atkinson: We're talking about people who are known terrorists, who have been involved in—

Ms. Elizabeth Tromp: Or who potentially are involved.

Ms. Joan Atkinson: —or are involved in terrorist activity, either in Canada or outside of Canada.

As I said before, this is an extraordinary power. The security certificate process is not one we do very often, but we need to have it for when we are dealing with the most egregious national security cases.

• 2000

Mr. Steve Mahoney: Thank you.

(Amendment negatived—[See Minutes of Proceedings])

(Clause 82 agreed to)

(On clause 83—Review of decision for detention)

The Chair: PC-19.

Mr. John Herron: Mr. Chair, this amendment essentially provides that a detained permanent resident—I repeat, permanent resident—can apply for review of ground for a continued detention at 30-day intervals following the initial 48-hour review. It provides for not just detaining someone indefinitely. So essentially, what we're advocating is that if you have a permanent resident who has been detained for good reason, this should not go on forever. So we want to review it at 30-day intervals. That's what we're advocating.

The Chair: We're talking about a permanent resident who has been found under clauses 80 and so on to be of that security certificate on which we just had substantive debate. Obviously, this is a rare occasion and we're talking about some pretty bad apples here. This provision says that we have to review their detention every six months. Your amendment would say every 30 days, right?

A voice: Right now it says how often?

The Chair: Six months. Subclause 83(2) says, “be brought back before a judge at least once in the six-month period”.

Ms. Joan Atkinson: And “at any other times that the judge may authorize”. So the person in detention, after the first six-month period, can ask for a review of that detention at any time.

The Chair: Okay. John.

Mr. John Herron: I withdraw this too.

(Clause 83 agreed to)

The Chair: Clauses 84, 85, 86, 87, 88, 89, 90....

Ms. Judy Wasylycia-Leis: Clause 89.

The Chair: I don't have anything on clause 89.

Ms. Judy Wasylycia-Leis: Well, you recall, Mr. Chairperson—

The Chair: Oh yes, fees. God, you've got a good memory. Thank you.

(On clause 89—Regulations)

Ms. Judy Wasylycia-Leis: And you have a new draft before you, actually properly numbered.

The Chair: What's the number, please?

Ms. Judy Wasylycia-Leis: NDP-50a.

Mr. Steve Mahoney: A point of order. You put an amendment on clause 86.

Ms. Judy Wasylycia-Leis: Where?

Mr. Steve Mahoney: It is to delete the authority to make an application for protection of information during detention reviews, admissibility hearings, and appeal hearings.

Ms. Judy Wasylycia-Leis: Wait a second.

Mr. Steve Mahoney: NDP, clause 86.

The Chair: Where is that? I don't have it.

Ms. Judy Wasylycia-Leis: I don't either.

Mr. Steve Mahoney: I don't want us to have to come back afterwards after we've passed all of these bills and ask for unanimous consent to reopen a clause because we missed something.

The Chair: While we look for that one, can we deal with NDP-50a on fees, which is clause 89?

Ms. Judy Wasylycia-Leis: This is now the appropriate place for this amendment, I understand, Mr. Chairperson.

The Chair: I guess so.

Ms. Judy Wasylycia-Leis: Good. This amendment deals with that contentious issue of the head tax, right of landing fee, and administrative fees. It proposes to delete the right of landing fee entirely and to remove the administrative or processing fees from refugees and persons who have been granted entry to Canada on humanitarian grounds.

The Chair: Judy, I remember when you put forward this thing, Joan indicated that the convention refugees and their dependants wouldn't be charged a fee. That's what I understood.

Ms. Judy Wasylycia-Leis: Originally, my motion, under right of landing fee, suggested phasing it out, starting with refugees and protected persons and their dependants. Then it was pointed out that was already done in the case of—

The Chair: So you've changed it.

Ms. Judy Wasylycia-Leis: Now I've changed it to eliminate the entire right of landing fee.

The Chair: Okay. So on NDP-50a, Mark.

• 2005

Mr. Mark Assad: On this particular issue—and correct me if I'm wrong, Ms. Atkinson, or Joan—I've spoken to officers abroad, and I've come to the conclusion that this is really a non-issue. It has never been a consideration, and I'm talking about countries where there is a high level of poverty. It's never an issue. I don't see why we should deal with something that is not a problem.

Ms. Joan Atkinson: You're absolutely right, Monsieur Assad. There's no evidence whatsoever to suggest that since we put the right of landing fee in place that there has been any negative impact on the levels of immigration and the levels of interest in immigrating to Canada. Quite the contrary, the level of interest in immigrating to Canada continues to grow, and we continue to receive increasing numbers of people who apply and who pay all the cost-recovery fees and the right of landing fee. It has not had a negative impact.

The Chair: Judy is entitled to her opinion. I think our committee, if I'm not mistaken, also asked some questions, if not during this bill then during C-31 or before, about how we stacked up with regard to other countries and their processing fees. I can't remember the details, but it looked as if Canada's fees were very much in line with those of other countries in terms of their landing fees. Is that correct?

Ms. Joan Atkinson: That is correct. Other countries charge additional fees we don't charge.

The Chair: Okay.

Judy, this will be your last opportunity to sway us.

Ms. Judy Wasylycia-Leis: It's been suggested that this issue hasn't emerged there at all and that it's not a barrier to people coming into this country. I suggest that it is. I certainly hear from constituents about the barriers that are caused because of the fee structure. I think it's a hard one to measure because those who can't afford it don't end up in this country.

We've heard evidence and testimony to suggest that for many people in third world countries the fees required are equivalent to a year or more of salary. People like that just don't even consider Canada because they can't even hope to afford to make Canada their homeland.

I think we need to address the many concerns that have been raised over the last few years about ROLF—about the head tax, as we call it—and find a way to phase it out.

The other issue we heard during the hearings was about the money that's collected through the fees. It doesn't appear to be automatically going into immigration and settlement programs to deal with some of the concerns we've talked about time and time again during the hearings on this bill. That's another issue.

The Chair: It's not in the bill, but this committee may very well want to talk about resettlement, settlement, and so on after the bill.

Ms. Judy Wasylycia-Leis: Yes.

The Chair: Okay.

Mr. Mark Assad: Isn't there a payment schedule that can be accorded to people if it becomes a problem?

Ms. Joan Atkinson: There is the possibility of getting loans to pay for your right of landing fee. We also made changes about four years ago that allowed people to pay their right of landing fee at the end of the process. They could pay the processing fee, which is the smaller amount, at the front end of the process. Once they knew they were getting their immigrant visa, they could pay the right of landing fee, so they didn't have to pay all of it at once. That as well seems to have made a difference in terms of people's ability to be able to pay.

The Chair: Okay. We're on NDP-50a.

Mr. Jerry Pickard: I wanted to hear one aspect of Judy's question answered, and I'm not sure I heard it. The question that is significant to me concerns the fact that in some third world countries the amount of money, even though it's a very small amount in Canadian terms, may not be affordable to many. Have we run into that as an issue or a circumstance anywhere in the world, and what is the answer if we have?

Ms. Joan Atkinson: I think I'd like to start by saying that it depends very much on the category. When you're talking about family class, what often happens in a family class application is that it is the sponsor in Canada who pays the cost-recovery fees and the right of landing fee.

• 2010

In the case of an independent immigrant, a skilled worker, or a business immigrant, the right of landing fee and the processing fees are just part of the cost of making the application and moving to Canada. These individuals have to have sufficient money to move themselves and their family from where they're living to Canada.

As we've already said, the right of landing fee has been abolished for refugees and people in refugee-like situations who are in need of protection because we wouldn't expect that those individuals would be able to pay.

I think there are mechanisms available for people to be able to meet those costs.

Mr. Jerry Pickard: That's fair enough. Thank you.

The Chair: Thank you.

(Amendment negatived—[See Minutes of Proceedings])

(Clause 89 agreed to)

(On clause 90—Minister directs special cards to be issued)

The Chair: I have NDP-50b, regarding social insurance number cards. I think you want to do something about replacing lines 33 to 36 on page 37.

Ms. Judy Wasylycia-Leis: The reason for the amendment is the concern raised by some of the groups—in particular I think it was the Maytree organization—who suggested that the special numbers may trigger inappropriate, biased reaction from employers and that we should do something to change the system so that possibility does not become a reality.

The Chair: That question was a real concern. I'm just wondering if the answer, Joan, is more education for employers to ensure that the special number that's given to people is not in fact used against them in any way, shape, or form.

Ms. Joan Atkinson: I think we'd be interested in hearing a little more evidence of difficulties people are facing with employers. The SIN card is obviously a document and a number that is issued by Human Resources Development Canada, and there are distinctions made in terms of the accounting that needs to be done in order to distinguish between those who are permanent residents or Canadian citizens and those who are not.

I don't know if you want to add anything, Mark.

Mr. Mark Davidson: I'll just say that this issue was addressed by the Auditor General maybe three years ago, if I remember correctly, and that there were recommendations made to the government to improve the system of issuing just these kinds of cards. Certainly the Auditor General did not make a point at that time that it wasn't appropriate to issue specially numbered cards for these individuals.

The Chair: Judy.

Ms. Judy Wasylycia-Leis: I think the concern we heard was from groups representing refugees, particularly refugees in limbo. They identified a problem they've had to deal with on the front lines, that refugees in limbo face discrimination because their social insurance number begins with a nine. They said the reason is that most employers recognize that a number beginning with a nine indicates that the holder has only temporary status in Canada, so for some employers that becomes a lightning rod. It becomes a disincentive to hire that person, at least for a long-term position. They think that person's a temporary person, so they're unwilling to invest any amount of time to train that person.

The recommendations we heard were either that we exclude convention refugees and other protected persons from the class of persons to be issued a social insurance number or, if they are to be issued special cards, that these cards identify them as persons who have been granted permanent protection in Canada in distinction from those with temporary status in Canada.

The Chair: Yolande.

Ms. Yolande Thibeault (Saint-Lambert, Lib.): I have something to add to that. One of the concerns of those people—parents—was particularly the fact that when they tried to register their children in school, they were right away identified as refugees and all that. It seems to me a lot of their problems came from that particular source.

• 2015

Ms. Judy Wasylycia-Leis: The stigma.

The Chair: I wonder, Joan—not here, by virtue of having to change the whole apparatus in terms of SIN cards—if we couldn't pay particular attention to that in the regulations. I'm sure this is covered off in regulations in some way, shape, or form. We may want to look at this at that point.

Ms. Joan Atkinson: Unfortunately, the issuance of SIN cards is not under this legislation at all. That's point one. So I'm not sure that we can deal with that particular issue under this legislation.

On the issue of children going to school, I think we've resolved that situation with the provision in subclause 30(2), which says that minor children in Canada are entitled to go to school. I think we've clearly delineated it in the bill that children of refugee claimants have the right to go to school.

I think the issue you're referring to here really relates to people who are here on employment authorizations and, speaking specifically about refugee claimants and protected persons, who are here with employment authorizations, who are not yet landed, or who are not yet permanent residents. Employers may not be prepared to invest in them because they know they're here temporarily. The SIN card may be an indicator of it, but the issue is the fact that they are here with employment authorizations and not with permanent resident status, at least not yet.

The Chair: Can I just ask a technical question? Are the SIN cards issued for temporary workers, with that 9 in front of them, the same cards that refugees would get?

So there is no distinction between...as Judy, I think, is trying to get at...that there is a real distinction between a protected person who has some sort of permanency as a refugee and someone who is going to be here for a short period of time on a temporary worker permit, a student permit that in fact has not dealt with permanency. A refugee is a protected person, and they are protected, and we are moving to give them landed status.

Perhaps it's something we ought to take up with HRDC, saying “Listen, it's causing us some difficulties in terms of immigration as it relates to HRDC”. But it is an issue that we have heard.

Judy.

Ms. Judy Wasylycia-Leis: If this amendment were accepted, it would give the department the flexibility it needs to figure it out and respond appropriately. It simply asks to delete these qualifying words:

by which the holders of such cards are identified as persons who may be required under this Act to obtain authorization to work in Canada.

The amendment would stop it after the word “cards” and delete that qualifying piece, which still gives the department the authorization and allows for some possibilities here for us to pursue this later on.

The Chair: Steve.

Mr. Steve Mahoney: It just seems to me that this is a statement of fact, that the cards are issued and that's what they do. So I don't know that by deleting it, without doing some additional action at HRD, you resolve the issue. You're just saying that's what it is.

What we should do is just state the fact, because that is the fact, and then, if we want to try to resolve it, have an undertaking to contact HRD to see if they can change their system a little bit. It shouldn't be complicated.

The Chair: I think you've won the argument, but unfortunately, I'm not sure we can do it here, Judy. Perhaps if the department doesn't do it, on behalf of the committee thereafter we can send a note off to the other minister just asking her to look at it, or for that committee to look at it. But I think you've made the point.

Mr. John Herron: Better still, raise it in question period and get all-party support.

An hon. member: Carried.

The Chair: Or whatever.

Ms. Judy Wasylycia-Leis: We're still going to vote on 50b, right?

The Chair: Sure.

(Amendment negatived—[See Minutes of Proceedings])

(Clause 90 agreed to)

Mr. Steve Mahoney: Did we actually vote on, earlier in the process, clauses 86 and 87?

The Chair: Yes.

Mr. Steve Mahoney: And they're both registered as carried?

The Chair: Yes.

Ms. Judy Wasylycia-Leis: Are you saying I had an amendment there?

Mr. Steve Mahoney: I'm not saying anything. I'm asking if we voted on them and carried them.

The Chair: You just asked me a question on whether or not we passed them, and we did.

Ms. Judy Wasylycia-Leis: I had wanted to delete clauses 86 and 87.

The Chair: That's right.

Ms. Judy Wasylycia-Leis: The way you do that is to vote against them, so the record would probably show that I voted against those two clauses.

Mr. Steve Mahoney: That's fine—as long as we don't have to do it again.

The Chair: But you're both right in that clauses 86 and 87 were carried.

• 2020

(On clause 92—Incorporated material)

The Chair: Amendment G-28 is technical.

(Amendment agreed to—[See Minutes of Proceedings])

(Clause 92 as amended agreed to)

(On clause 93—Statutory Instruments Act)

The Chair: Amendment G-29, Mr. Mahoney.

Mr. Steve Mahoney: This is fairly technical. It would replace lines 30 and 31 on page 38 with the following:

Instructions given by the Minister under this Act and guidelines issued by the Chairperson under paragraph 159(1)(h) are not statutory instruments for the purposes of the

(Amendment agreed to)

(Clause 93 as amended agreed to)

(On clause 94—Annual report to Parliament)

The Chair: There are two amendments, G-30 and BQ-20.

In G-30, Steve, I guess we deal with the linguistic profile of foreign nationals who become permanent residents.

Mr. Steve Mahoney: Yes.

The Chair: Madeleine, I think yours is different, so we'll deal with that in a moment.

We'll vote on G-30—

An hon. member: Wait a minute.

The Chair: The amendment is technical in nature, I heard.

Mr. John Herron: No, it's not.

Mr. Steve Mahoney: It reaffirms the government's commitment to enhance the vitality of official languages and official language minority communities.

The Chair: I think we had done that in the previous section, but if you want to speak to it, John, no problem.

Mr. John Herron: Go ahead.

(Amendment agreed to—[See Minutes of Proceedings])

The Chair: Let's go to BQ-20, Madeleine, with regard to clause 94, which deals with the annual report to Parliament.

[Translation]

Ms. Madeleine Dalphond-Guiral: This amendment would add a new clause, 94.1, which would require the committee to hold public hearings to find out what is happening with the new legislation once it has been passed and is in force.

In light of the many concerns we all heard from our witnesses, we think the best way to determine whether the witnesses are correct or not is to see for ourselves the impact of the act on real people. The committee would therefore be required, within 90 days after the tabling of the minister's report, to hear from witnesses and to see what the actual impact of the legislation is.

[English]

The Chair: A committee can do whatever it wants, and essentially in a report it could do it. Annual reviews of particular pieces of legislation have also been allowed in other respects, HRD being a perfect example; when fundamental changes were made to EI, the bill was to be reviewed formally on a yearly basis.

I'm just wondering, though, Joan, with regard to the report to Parliament, the clause says:

The Minister must, on or before November 1 of each year or, if a House of Parliament is not then sitting, within the next 30 days on which that House is sitting after that date, table in each House of Parliament a report on the operation of this Act in the preceding calendar year.

A lot of reports come to us, to Parliament and in fact this committee, on immigration—performance reports, estimates, and so on and so forth. Is this specific or unique to this particular act, or is this something that's...?

Ms. Joan Atkinson: In effect it's a new and improved version of the annual report on immigration levels that is in the current act. The current act requires the minister to report, before November 1 of each year, on the number of immigrants to be admitted to Canada in the next calendar year.

• 2025

In clause 94 we've built on that, requiring the minister to report on not just the number of immigrants and refugees expected to be landed in Canada in the following year, but on activities and initiatives taken concerning the selection of immigrants and refugees; the number, of course, as we have now; reference to federal-provincial agreements, and those that have been landed in Canada under the terms of federal-provincial agreements; the number of temporary residents, including students, temporary workers, and visitors to Canada; and the number of persons who have been granted permanent resident status on H and C grounds under clause 25.

It's a much more fulsome report that this legislation requires the minister to make to Parliament every year to report on the selection and integration of immigrants and refugees.

The Chair: Thank you.

From a technical standpoint, I'll just raise this. The intent of clause 94 is to have a report by the minister to the Parliament. Parliament can do whatever it wants. Committees can do whatever they want. I just don't know whether or not this committee can tie the hands of any future committee to public hearings.

I know where you want to go, Madeleine, and I think a lot of us are supportive of what the intent is. But there may be, procedurally, some problems in tying the hands of future committees to holding public hearings.

Does the clerk wish to address this issue?

The Clerk of the Committee: It's exactly what you said. An order from the House would order a committee to do something, but you can't order in advance for a committee to do something. A committee is master of its own proceedings, and it can decide at any time to do anything within its mandate.

[Translation]

Ms. Madeleine Dalphond-Guiral: I understand that the committee can do what it wants, and that, depending on the leadership of the chair, a committee may do some absolutely astonishing things that are going to change the world as we know it. That I know. Moreover, I'm wondering whether there is any legislation in place that places certain obligations on committees. I'm thinking, for example of the pre-budget consultations conducted for the Minister of Finance. Is there not a requirement in some legislation somewhere that the committee must hold pre-budget consultations? If the answer is yes, this can be done, and if it can be done, why would we not do it, since this act is going to affect real people?

[English]

The Chair: Madeleine, there is an answer to your question. It is in the Standing Orders that the committee must do this.

Now, I can't speak for the finance committee or any other committee. I just know the Standing Orders are such that we must deal with the report from the minister to Parliament, and, therefore, it automatically is done. That's all I can tell you: that the Standing Orders say we must do this.

Ms. Madeleine Dalphond-Guiral: Okay.

Mr. Steve Mahoney: The Standing Orders say the finance committee must hold hearings. The Standing Orders don't refer to us.

The Chair: I'm sorry, I heard—

The Clerk: The standing order applies to the finance committee only.

The Chair: Oh, okay. I'm sorry. That's what happens when you keep the earpiece in your ear.

So for the finance committee, there's a standing order that they must, but that does not apply here. You're right.

I'm sorry, then, but how does that help Madeleine?

Mr. Steve Mahoney: It doesn't.

The Chair: It doesn't, other than via the fact that it calls upon the committee to do it.

John.

Mr. John Herron: In terms of the intent of what she might be looking at, lots of pieces of legislation have sunset clauses that mandate a mandatory review of a legislation after five years, six years, seven years, or something like that. I think that's something we could pursue down the road, although not necessarily at this juncture, because you could implement that at any time. But given that this is framework legislation that—

The Chair: Thank you, John, for helping out.

Mr. John Herron: I guess I'm through.

The Chair: Can I just suggest something? We're not going to finish tonight, I can guarantee you that. We're only on clause 95.

Mr. Steve Mahoney: Not if we're spending twenty minutes on this.

The Chair: Can I just make a...? There are a number of things outside of this bill that the committee may in fact want to do, such as giving future notes to a committee that they must do something. I'm just looking outside of the legislation. This might be an appropriate place. I want to seek some technical advice, if I could, so can I just hold this thing in abeyance?

• 2030

Ms. Judy Wasylycia-Leis: The one I had submitted originally, 186, was resubmitted as clause 94.1.

The Chair: Which was to deal with what?

Ms. Judy Wasylycia-Leis: It deals with the tabling of reports to Parliament regarding gender-based analyses and anti-racist analyses.

The Chair: That could be clause 94.2. I don't see that here, but that may be because it's the totality of the bill. Can you hold on to that one, too?

(Clause 94 allowed to stand)

The Chair: Can we now move to the refugee protection part of this bill, which is part 2, and go to clause 95? Actually, I think we've already passed 95. We're going to 96, which has PC-20.

Hang on a second.

As we get into this section, we apparently have to retrieve some of the government amendments that were prepared. Some of them are here.

Are there any government amendments on any of these clauses that I might be able to get to?

The Clerk: Yes.

The Chair: Which ones? All of them?

Let me just deal with a couple of issues that were brought up previously that we were going to deal with. One was with regard to the regulations, and the other one was the explicit-implicit debate on clause 25. That one hasn't been passed.

Daniel, I think we had indicated that we just wanted a clarification that what you said was explicit, while we wanted to make it a little implicit. Do we have wording to reflect that? Is that part of the package?

Mr. Daniel Therrien: It's part of the package the clerk is working on.

The Chair: Okay, I guess we can't go there.

How about clause 25?

Mr. John Herron: Let's do clause 96.

The Chair: Clause 96? Just wait a minute.

Mr. Steve Mahoney: What about clause 5?

The Chair: Mr. Mahoney had a question with regard to occupational professions and accreditation. What clause was that, just before I lose sight of it? I know we held it in abeyance because we wanted to know whether or not there was an opportunity to mention self-regulating.... We know it's a provincial jurisdiction, but there are regulated professional bodies there that have in fact been delegated the authority by the provinces, and we wanted to mention that.

I think we held something in abeyance because we didn't know where it was going. I think it was paragraph 3(1)(f) or something like that. We were looking at dealing with that.

(On clause 3—Objectives—immigration)

The Chair: Steve.

Mr. Steve Mahoney: I don't remember the number.

The Chair: No, it's not paragraph 3(1)(f).

Mr. Mark Davidson: Mr. Chair, the original amendment was to the objectives. It was in clause 3.

Mr. Steve Mahoney: If you go to page 4—the eyes are getting blurry here—it's paragraph 3(3)(c):

facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations and non-governmental organizations;

• 2035

I think it was there that I wanted to add some reference to “officially sanctioned professional associations”, or something like that. I was looking for some wording.

There are associations that deal with accreditation and recognition of foreign qualifications, etc. They're approved, they're actually in legislation provincially, and they're recognized provincially. The one group we had before us at some point here in Ottawa was CORA—I forget what that stands for, but they're engineers—and I wanted to include them in this paragraph (c) in some way. I guess you could say they're included in non-governmental organizations, but I wanted to specify it because of the problems we've all talked about in regard to certified engineers from another country driving taxis here and not having any opportunity to get out of that rut.

Also, when we get into the regs later on, I want to spend some time addressing the issue of points awarded for apprentices and for skilled tradespeople, how we recognize them, and how the educational component is different in Canada than it might be in India, in Portugal, or wherever. It all relates to that, and I want to ensure we're not discriminating against a skilled tradesperson and are somehow just simply trying to attract people with a PhD when we need plumbers, electricians, bricklayers, and all of those things.

So my amendment that Joe was asking about was to paragraph (c) on page 4.

The Chair: Wait a minute. Clause 4?

Mr. Steve Mahoney: No, page 4, paragraph 3(3)(c), facilitating cooperation.

The Chair: Are there any difficulties with that? Joan.

Ms. Joan Atkinson: Mr. Chairman, it's a little bit like the discussion we had on municipalities. It's the provincial jurisdiction that is the issue.

Those regulatory bodies are created by provincial statute. Although I absolutely understand what we're trying to achieve here by making specific reference to them, my concern is that, by putting it in the federal legislation, we will run into difficulty with provincial governments, at least without doing a great deal of consultation with them, because these regulatory bodies are created by them and by their legislation.

So as we discussed, it's a little bit like the issue with municipalities. It's not that we disagree that we shouldn't be talking to municipalities and others who have a direct interest in the immigration program; it's just that it does raise provincial sensitivities on jurisdictional issues.

And we are indeed talking to them, that's quite right.

The Chair: Judy.

Ms. Judy Wasylycia-Leis: This relates in part to a clause of mine that was deferred, and it pertains to clause 3 as well, in terms of adding a paragraph (j) to subclause 3(1). I originally said to add:

to facilitate recognition of immigrants' occupational qualifications and accelerate access to regulated professions and trades.

We left that on the understanding that we would look for another place in the bill to address it, but if there isn't another place, we should deal with it.

The Chair: Can I ask you something, though? Surely the objectives, which are not the applicable parts of the legislation...I mean, we could talk about our vision. As an example, I'll be damned if I have to ask Mike Harris what he thinks about immigration for the country of Canada. I was elected MP and he was elected premier. He might have an entirely different view. You mean to tell me a federal member of Parliament or this Parliament of Canada can't talk about immigration in the global context without having to defer to those premiers all the time?

Mr. John Herron: It's like our drinking water.

The Chair: Or whatever—and I'll have some.

Anyway, surely, in the objectives part of the thing, one could do what Judy or Steve may want to do without getting the ire of the provinces up. We've been respectful of them throughout this bill, but in the objectives, if it is an objective to facilitate, to work with all of these organizations that are trying to achieve exactly the same things we want to achieve and that the provinces want to achieve, what would be wrong with mentioning them?

• 2040

Ms. Judy Wasylycia-Leis: We could add the words from the last Speech from the Throne into this section: The federal government will “work in co-operation with the provinces and territories to secure better recognition of the foreign credentials of new Canadians and their more rapid integration into society”.

Mr. Steve Mahoney: I like that.

The Chair: Add it in paragraph (j). Let's do it right now while I'm in the mood. Move it, and let the provinces shit all over us. I don't care.

An hon. member: Where's that from?

Ms. Judy Wasylycia-Leis: I'm reading from the last Speech from the Throne.

The Chair: Is it moved?

An hon. member: I so move.

Mr. Steve Mahoney: Do you have any apple pie with that?

The Chair: It's moved. Are there any objections to that? None.

Mr. Steve Mahoney: That would be an NDP amendment?

The Chair: Yes, NDP, but I don't care.

Ms. Judy Wasylycia-Leis: But it's your Speech from the Throne.

Mr. Steve Mahoney: And you read it without joking.

Some hon. members: Oh, oh!

Ms. Judy Wasylycia-Leis: You know, you go for it when it's better than nothing.

The Chair: So it will be 3(1)(j).

(Amendment agreed to)

The Chair: We're still waiting for our amendments to come forward with regard to the issue of this committee wanting the regulations and a commitment that was made by the minister and everyone else. It's a commitment that we believe we want to keep, and that is to ensure we have public input and hearings and what have you on the—

Mr. John Herron: Always.

The Chair: Always? No, just on the ones now, but what about any future regulations? Do we have something that can facilitate that, and where would we put it so that it does in fact speak about our continuing involvement?

We do have one, and it's coming around. It'll be subclause 5(1).

Ms. Judy Wasylycia-Leis: Is this a reg one?

The Chair: Yes.

Ms. Judy Wasylycia-Leis: Do you have my copy as well?

The Chair: We're all going to take credit for this one. I'm going to put everybody's—

Ms. Judy Wasylycia-Leis: I know, but do you have one, because I...?

The Chair: No, I can't remember yours.

Mr. Steve Mahoney: This is a government amendment.

The Chair: We'll find it. Let's deal with this one, though, and then see how yours may be different. Essentially, we'll deal with clause 5.

On clause 5—Regulations)

The Chair: Steve.

Mr. Steve Mahoney: I'll just go through it so it's on the record that we amend clause 5 by replacing line 21 on page 4 with the following regulations:

5(1) Except as otherwise provided, the Gover-

—and by adding after line 26 on page 4, the following:

Tabling and referral of proposed regulations

(2) The Minister shall cause a copy of each proposed regulation made pursuant to section 17, 32, 53, 61, 102, 116 and 150 to be laid before each House of Parliament, and each House shall refer the proposed regulation to the appropriate Committee of that House.

Alteration of proposed regulation

(3) A proposed regulation that has been laid before each House of Parliament under subsection (2) does not need to be so laid again,

—I don't really like that wording—

whether or not it has been altered.

Making of regulations

(4) The Governor in Council may make the regulation at any time after the proposed regulation has been laid before each House of Parliament under subsection (2).

The Chair: I think we've taken a little bit from everyone on this one, so can we just...? Are there any questions? Does someone move it?

Ms. Judy Wasylycia-Leis: I so move.

(Amendment agreed to)

The Chair: Yolande, you had one with regard to limbo?

Ms. Yolande Thibeault: Yes, it was clause 21, I believe, in the section headed “Status and Authorization to Enter”.

[Translation]

An amendment had been put forward to this clause. It was withdrawn while we were thinking about what could be done with the poor people who are in limbo. After thinking about this, I think the problem should really be dealt with in the regulations, rather than in the act.

• 2045

[English]

The Chair: Yes. I think there was sufficient concern, as Joan has indicated. This bill moves toward moving people who have been determined to be refugees to be landed as quickly as possible. We're doing a number of things.

There are those people still caught in what we call “limbo”, because of documentation. The documentation part of it, by affidavit, is going to be streamlined. There obviously are some security issues related to this.

We can look at dealing with it at the regulation stage to see how in fact we can do it. Apparently, there aren't that many cases. Perhaps, Joan, you can talk about this. It is problematic in terms of dealing with the legislative side, as opposed to the regulation side.

Joan.

Ms. Joan Atkinson: First of all, there are a number of tools and processes we've given ourselves in this legislation, that, hopefully, are going to considerably reduce the number of limbo cases that end up waiting for long periods of time.

The front-end security screening process we talked about will pick up more cases right at the beginning of the process for those people who may be a security concern. Our ability to protect sensitive information in admissibility hearings in front of an adjudicator will allow us to make decisions more quickly on some of the cases where we can't now. They're not a security certificate process or not a case where we can protect the information in a Federal Court security certificate process. With the provision, we can now protect sensitive information in an admissibility hearing in front of an adjudicator. We can have a determination of admissibility made more quickly.

We have a number of tools in the bill that will help us deal with those cases. The number of cases are small. When you have cases that are not resolved for a long time, it is very difficult.

The Chair: Okay. Thank you.

Yolande, thank you. For Madeleine, we'll just have to write ourselves a note that when it comes to regulatory review we will pay particular attention to that one. I know you won't forget, and neither will Judy nor Madeleine.

We have our packages. We can move to clause 95.

Mr. Steve Mahoney: Do you want to clean up clause 25? That is the “may” or “shall” debate.

The Chair: Yes. If we have it, we'll deal with it.

Mr. Steve Mahoney: I have an amendment.

The Chair: Okay. On clause 25, humanitarian and compassionate considerations, you'll remember it said “the Minister may”. We went into what's explicitly there. We want it more implicit.

Steve, are we distributing it now?

The Clerk: This is the revised agenda.

The Chair: I don't need a revised agenda. Go ahead.

Mr. Steve Mahoney: They're going to love it.

The Chair: I know they're going to love it. I'm just telling you nobody seems to have it.

Mr. John Herron: Read it totally and maybe it might be okay.

The Chair: No, Steve, we don't have it. Hold it for a while. Keep them waiting.

Let's go to clause 95.

Ms. Judy Wasylycia-Leis: Mr. Chairperson?

The Chair: Yes.

Ms. Judy Wasylycia-Leis: Before we do it, I remind you that we should come back to clause 94. I have clause 94.1, which doesn't seem to have been copied and circulated.

The Chair: It hasn't been?

Ms. Judy Wasylycia-Leis: It was submitted and was probably lost in the shuffle.

The Chair: Yes, we're holding that one.

Ms. Judy Wasylycia-Leis: Okay, as long as you come back to it.

The Chair: We're not closing off clause 94.

Ms. Judy Wasylycia-Leis: Okay.

The Chair: Clause 94 has not been carried yet.

We'll move to clause 95.

(Clause 95 agreed to)

(On clause 96—Convention refugee)

The Chair: We have two amendments, PC-20 and BQ-21.

Mr. John Herron: We're on clause 96 now, right?

An hon. member: Is that in the new bundle?

The Chair: Yes, it's the new bundle. Get rid of the rest of the stuff. We don't need it.

• 2050

Why do I have an amendment to clause 95 for the government?

Ms. Susan Baldwin (Legislative Clerk): It's consequential.

The Chair: It's consequential.

Ms. Judy Wasylycia-Leis: Can I go first this time?

The Chair: Yes, we're on amendment NDP-51.

Ms. Judy Wasylycia-Leis: Thank you, Mr. Chairperson, for letting me go first. This is the same wording that is in amendments introduced by both the Bloc and the Conservatives. It will show an all-party concern for adding the words “gender” and “sexual orientation” in clause 96 on line 9, page 40.

The Chair: Can you remind me how we dealt with them three days ago? Didn't we defeat them on the basis that Joan said it was limiting in the application? All of those reasons are in the Geneva Convention.

Mr. John Herron: There was the precarious reason for which the phrase “membership in a particular social group” might be limiting. I don't know a sexual orientation or gender where you get a membership card for being a woman or a man, or you get a membership card for being gay or not gay. I don't actually know where it is included in the category.

I think including those two particular issues would be progressive. We list it in other pieces of legislation, including the charter, in terms of adding sexual orientation. If we include it in the charter, how come we can't put it in clause 96 of the Immigration Act? I think we should add it.

The Chair: Can I refer you to the minutes of the last meeting for your answer?

Mr. John Herron: I don't think the rationale given at the last meeting made any sense. I don't think the same rationale will make sense this time.

Ms. Judy Wasylycia-Leis: We need another vote.

Mr. John Herron: I picked up more so on the idea of membership. Do they give you a card? I don't really buy that. Joan is more than welcome to take a second crack at it.

Ms. Joan Atkinson: I'm going to ask Gerry to take a crack at that one.

The Chair: Okay, Gerry.

Mr. Gerry Van Kessel (Director General, Refugees, Department of Citizenship and Immigration): I'm taking a crack at membership. I understand this was debated yesterday morning when I wasn't here. I'd like to add one element.

At the present time, the UNHCR is undertaking what it calls “global consultations on protection”. It's doing this for a number of reasons.

First, it's the 50th anniversary this year of the Geneva Convention that first came out in 1951. It's to take a look, in part, at the consistency in the application of the convention to try to get an expansion of countries signing on to the convention.

I don't want to put words in the mouth of the UNHCR. I think I'd be fair in saying the UNHCR would be concerned if countries started individually, in a sense, adding to or subtracting from the definition in terms of the wording of the definition itself.

One of the great challenges we face internationally is trying to get a common interpretation of the definition itself. In discussing this with the UNHCR and in global consultations, one of the questions we quietly asked ourselves was, “Does this mean we want to open the convention?” While there may be a few political leaders who have indicated that, I think the unanimous consensus was we did not want to open the convention.

We do want to have a common interpretation of the definition as it currently exists. The common definition, or the common interpretation of the definition as it currently exists, includes things that are very difficult in some countries and not difficult in others, including sexual orientation and gender, to try to get a common definition through the understanding that this relates to the membership of a social group.

Secondly, it is also a question in some countries of a real difficulty with state and non-state agents as to who gives an agent a persecution.

My strong sense is if each individual country were to start changing the wording of the definition itself, it would make the common interpretation and understanding of the definition more difficult than it is already.

I think that may not have been mentioned yesterday morning and I wanted to add it.

Finally, with respect to membership, I think the understanding is it is someone who is included in the group in terms of the characteristics of the individual and a card is not necessarily being issued.

The Chair: Thank you, Gerry, for that value-added answer.

• 2055

Mr. John Herron: As to where that's coming from, I don't know if you have a list, but I didn't see you going to someone. That's why I interrupted. I'm sorry.

With that definition, that means we should hold off on our own Charter of Rights and Freedoms until we get the rest of the international world to get on board. We can go to the lowest common denominator with that logic. But anyway, that's my thought on that.

The Chair: Thank you.

Amendments NDP-51, PC-20, and BQ-21 all relate to exactly the same argument as before.

(Amendments negatived—[See Minutes of Proceedings])

(Clause 96 agreed to)

(On clause 97—Person in need of protection)

The Chair: We have amendments G-31 and G-32.

Mr. Steve Mahoney: Amendment G-31 is on the French version.

The Chair: Amendment G-31 is a technical amendment to the French version of clause 97. It has been moved. Are there any questions on it?

Ms. Judy Wasylycia-Leis: Are you talking about the government amendment or the clause?

The Chair: Amendment G-31. It's a French technical amendment.

(Amendment agreed to—[See Minutes of Proceedings])

The Chair: Who is introducing amendment G-32, on clause 97, in regard to a person in need of protection?

Steve.

Mr. Steve Mahoney: This replaces, in the English version, lines 1 to 4, on page 41, with the following:

(2) A foreign national in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.

It's just a technical amendment to correct the grammar.

(Amendment agreed to)

(Clause 97 as amended agreed to)

The Chair: Clause 98 is done.

On clause 99, we have amendment BQ-22.

Ms. Judy Wasylycia-Leis: You missed NDP-51a.

The Chair: Sorry. I don't put these things together.

Amendment NDP-51b is on clause 98. So we'll go back to clause 98.

Ms. Judy Wasylycia-Leis: No, amendment NDP-51a would be on clause 97.

The Chair: I don't have that one.

Ms. Judy Wasylycia-Leis: It's right in your package after amendment G0-97.

The Chair: No.

Ms. Judy Wasylycia-Leis: It's in my package.

Mr. John Herron: It's in my package.

The Chair: They want to keep the chair in the dark all the time.

It's not in mine, but I'll take your word for it. Go ahead.

Ms. Judy Wasylycia-Leis: It seeks to delete subparagraph 97(1)b)(ii), which says:

(ii) the risk would be faced by the foreign national in every part of that country and is not faced generally by other individuals in or from that country,

We heard considerable representation on this issue. In particular, it puts women at risk in certain countries. I think perhaps Steve was ready to jump on this one and give government support.

Mr. Steve Mahoney: You're certainly torturing me, anyway.

Ms. Judy Wasylycia-Leis: It's making generalizations based on country.

The Chair: Joan, can I get an explanation on that result, please?

Ms. Joan Atkinson: This clause makes reference to the internal flight alternative, assessing whether an individual may be able to be protected in another part of the same country.

Gerry, do you want to speak to that issue?

Mr. Gerry Van Kessel: Thank you, Joan.

The current wording in the bill incorporates two concepts. First of all, if there is an area in the country to which persons seeking protection would be safe from persecution, they would be expected to go there unless it is unreasonable for them to do so. Secondly, the risk faced by these persons must be personal.

• 2100

The concept of personal risk as opposed to general risk faced by the entire population is contained in the convention refugee definition and in the convention against torture, and the IFA, or internal flight alternative, is well developed in Canadian and international jurisprudence and interpretation of the refugee definition.

When we take a look at whether an internal flight alternative exists, we look at such factors as whether it is realistic and attainable, whether it can be accomplished without great physical danger or undue hardship, and whether it provides stable protection and an established authority to which the individual can be returned.

If we were not to have it, you could have the situation of, for example, someone in northern Ireland fleeing the IRA. It could be considered that he might be able to go to London and be safe there. If you didn't have the internal flight alternative, he might not have that. I use that example to make clear just what the internal flight alternative is.

Ms. Judy Wasylycia-Leis: For the sake of closing the debate, I would just refer people to presentations we heard in Winnipeg from David Matas, who was quite concerned about the impact this would have particularly on women and others at risk within the country.

The Chair: Gerry.

Mr. Gerry van Kessel: If it is not realistic and attainable, or they can't accomplish it without great physical danger.... The internal flight alternative has to be real. If it's not real, it doesn't apply. Therefore, if in an individual circumstance it can't be applied, then the internal flight alternative is not considered an appropriate option, and refugee definition can follow.

The Chair: Your amendment would delete that section.

Ms. Judy Wasylycia-Leis: Yes. But it's a well-accepted concept in terms of international refugee law, and I think, as Gerry said, there is a lot of jurisprudence on the application of internal flight alternatives, not just in Canada but elsewhere. This is a concept that is widely used internationally in other refugee determination systems and is very consistent with international law in the application of the convention. In fact, UNHCR, in its own guidelines, makes reference to the consideration of internal flight alternatives. So it's quite correct that in our legislation, we make reference to it as a means of guiding the decision-makers at the IRB.

(Amendment negatived)

The Chair: By the way, that was back at clause 97.

(Clause 97 as amended agreed to)

(On clause 98—Exclusion—Refugee Convention)

The Chair: We have amendment NDP-51b.

Ms. Judy Wasylycia-Leis: It's on line 8.

Mr. John Herron: Didn't we miss some government amendments there?

The Chair: No, we had done those before—remember? I had to go back because of the NDP amendment. This is clause 98.

Ms. Judy Wasylycia-Leis: You'll see that this adds some words after the last word “protection”, qualifying words that say:

unless that person has been found to be a person at risk of torture as defined by the Convention Against Torture.

I think this just helps to bring us in line with the international convention on torture. It may be redundant, but I think it would give a lot of assurances to folks who said this was a fundamental concern for them, and if we can do anything to strengthen the bill in terms of preventing a person from being sent back to a country where they might be tortured, then we should do it.

The Chair: Can I just ask, didn't we add the list of...? When we started talking about the international obligations, we talked about present and future international obligations that Canada would be a signator to. Would that not encompass what Judy is essentially saying there in clause 98? We did it in another section.

Daniel.

Mr. Daniel Therrien: The section you're referring to was subclause 97(2). It doesn't really address the member's point, which, if I understand correctly, is to say that people who are at risk of torture would be found to be persons in need of protection regardless of the definition in clause 98. This question is addressed actually by making people who are referred to in sections E and F of the refugee convention serious criminals and so on. They are excluded from our definition here, but they are protected through the pre-removal risk assessment that comes later.

• 2105

Mr. Steve Mahoney: Mr. Chairman, to add to that, I think it's more than just serious criminals. I think it's serious security threats and war criminals.

Mr. Daniel Therrien: Yes.

Mr. Steve Mahoney: So I don't know why you're trying to make them refugees and protect them. They have PRRA, so they can be reviewed at that point.

Ms. Joan Atkinson: Right.

Ms. Judy Wasylycia-Leis: We heard from a number of witnesses who—

Mr. Steve Mahoney: Because they represent those people.

Ms. Judy Wasylycia-Leis: No, they weren't lawyers. They weren't legal counsel for these people.

Mr. Steve Mahoney: They passed as lawyers.

Ms. Judy Wasylycia-Leis: They were people wanting to ensure that this bill—and we're not going to get a chance to amend this act for a long time again—is as consistent as possible and as in line as possible without the UN conventions. I think this is not unreasonable to expect. That's not to say we're going to—

The Chair: No, but Judy, to be fair, this bill moves way ahead of what we already have now, because it in fact talks about the UN Convention on Torture and protects those people who have the PRRA. So it builds upon that foundation we had.

It may not go as far as you and some groups may want it to go, but in fact the act needs to be clarified. That's what is the purpose of this clause-by-clause, to get an explanation of how those concerns of people we've heard are being addressed. I think this has been useful.

Ms. Judy Wasylycia-Leis: Yes, but just let me clarify in terms of what Steve suggested. This is not to suggest we're going to tolerate criminals by not sending them back and by saying prosecute them in Canada, they can't be extradited, but still be true to the convention.

The Chair: PRRA does that. All right.

(Amendment negatived—[See Minutes of Proceedings])

(Clause 98 agreed to)

(On clause 99—Claim)

The Chair: NDP-51c is first in my book. Judy.

Ms. Judy Wasylycia-Leis: On page 41, this replaces lines 16 to 20 with this new subclause 99(3). The purpose is again to address concerns around due process, removing barriers, and preventing someone under a removal order from seeking refugee status.

The Chair: So essentially it deletes the words “subject to a removal order”.

Mr. Steve Mahoney: It allows all claimants to go to the IRB.

Ms. Joan Atkinson: The current act does not allow persons under a removal order to make a refugee application. This is simply a carry-over from the existing legislation to ensure that persons who are about to be removed do not use the opportunity to make a refugee claim as a way of delaying their removal. They, of course, have an assessment of their risk and their protection needs through the pre-removal risk assessment.

The Chair: NDP-51c.

(Amendment negatived—[See Minutes of Proceedings])

The Chair: Madeleine, on BQ-22, you have something a little different on clause 99.

[Translation]

Ms. Madeleine Dalphond-Guiral: I think this will please Yolande. I think she will vote for this amendment. It would replace the current subclause 99(4) with the following:

(4) Every person who has been determined to be a Convention refugee under this Act shall, on application, obtain permanent resident status.

I thought that would please you.

I think the amendment is quite clear. People who were very concerned about the situation of refugees said on a number of occasions that one of the easy ways of handling a number of problems, particularly the one facing refugees who are in limbo, which is not necessarily a very comfortable position, is to grant them permanent resident status on request.

[English]

The Chair: Joan, Madeleine is right. We heard a lot of testimony. In fact, this is a question I asked both you and the minister. If front-end screening means we're going to process people a lot better and determine whether or not they are refugees much more quickly, then once that determination has been made, why don't we move to landed status?

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I know that some of the steps that we've already taken will accomplish that, but I'm just wondering whether or not in this subclause 99(4) we have covered it off sufficiently, or is there in subclause 99(4), as Madeleine indicated, something to assure those...? I think the commitment of both you and the minister was that if we get refugee status and there are no security and criminality issues, we're able to move them right to landed and not force them all the way back through part 1, which is the immigration system, to go through all those hoops. I think you had indicated that's where we would want to get to. How can we make that happen? Is it going to happen, or can we strengthen it by...? Is there a separate stream that would be required in order to expedite it and not force them through part 1, such as a clause like this?

Ms. Joan Atkinson: A clause like this would mean that we would have to give automatic permanent resident status to all persons who had been accepted by refugees, whether or not we had completed all of our assessment of their security, criminality, and so on. As you said, Mr. Chairman, our intention is that by moving the security screening rights to the front end of the process, hopefully by the time the majority of people have gone through the refugee determination process we will already have completed our assessment of their security, criminality, and so on. And it will be very quick after that for them to get permanent resident status. But there will always be those cases where, even after they've gone through the refugee determination process, we have not been able to complete our background inquiries and the security checks and so on. We would not want to be in a situation where we would be obliged—where it would be mandatory—for us to give them permanent resident status if we had not completed all of those checks and knew for sure that we were dealing with someone who didn't pose any problem.

The Chair: Madeleine.

[Translation]

Ms. Madeleine Dalphond-Guiral: I can understand that, Mr. Chairman. The act seems to contain provisions whereby permanent resident status can be revoked. So, if officials realize that the individual is a danger to the security of Canada, or someone who has done some terrible things that had not been noticed, there would still be time to revoke the permanent resident status. The majority of people who are determined to be refugees are not criminals. So, I say, heavens, why not do this?

[English]

The Chair: Steve.

Mr. Steve Mahoney: Mr. Chairman, we had a similar amendment in clause 21 put by the NDP, which I think would accomplish the same thing. The staff have been working on a problem, because it's tied up with the federal-provincial accord, particularly the Quebec agreement. I think we have it ready to hand out somewhere. It has been distributed. The proposed clause 21, if Madeleine would look at that amendment says, “A foreign national becomes a permanent...” by adding after line 21 on page 11 the following:

Protected Person.

(2) Except in the case of a person described in subsection 112(3) or a person who is a member of a prescribed class of persons, a person whose application for protection has been finally determined by the Board to be a Convention refugee or to be a person in need of protection, or a person whose application for protection has been allowed by the Minister, becomes, subject to any federal-provincial agreement referred to in subsection 9(1), a permanent resident if the officer is satisfied they have made their application in accordance with the regulations and that they are not inadmissible on any ground referred to in section 34 or 35, subsection 36(1) or section 37 or 38.

I think that gives us the ability to deal with the provinces, particularly Quebec, on this agreement and still provides that status for protected persons who have been identified as refugees. I think it does what you want to do. It might be a little water in your wine.

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[Translation]

Ms. Madeleine Dalphond-Guiral: Almost all.

[English]

The Chair: Technically, though, I'm going to have to open clause 21, which was closed before, in order to—

Mr. Steve Mahoney: It was?

The Chair: Yes, it was. Clause 21 was already agreed to. That's not a problem, as with unanimous consent we can reopen it to introduce this amendment, so that it can take care of this particular thing. It helps where we all want to go.

Madeleine, you might want to take a look at whether you want to withdraw or you want us to put this to a vote. I think it gets you 90% of the way there.

[Translation]

Ms. Madeleine Dalphond-Guiral: Yes.

[English]

The Chair: First, can I have unanimous consent to open clause 21 again?

Some hon. members: Agreed.

(On clause 21—Permanent resident)

The Chair: I'll move the amendment. What should we call this amendment?

The Clerk: Government X-2.

The Chair: It sounds like an airplane—GX-2. Are there any questions on it or any objections to that motion for clause 21?

(Amendment agreed to—[See Minutes of Proceedings])

The Chair: With regard to clause 99 and BQ-22, do you want to withdraw amendment BQ-22, just in case?

[Translation]

Ms. Madeleine Dalphond-Guiral: Yes.

[English]

(Amendment withdrawn)

The Chair: I do that, Madeleine, just in case you wanted to do it at the report stage. You may want to look at it more carefully.

(Clause 99 agreed to)

(On clause 100—Referral to Refugee Protection Division)

The Chair: We have G-33, a technical amendment to the French version.

(Amendment agreed to—[See Minutes of Proceedings])

(Clause 100 as amended agreed to)

(On clause 101—Ineligibility)

The Chair: We have BQ-23 on clause 101. Madeleine.

[Translation]

Ms. Madeleine Dalphond-Guiral: The bill before us makes no provision for another claim for refugee protection. This would be possible if we were to delete lines 24 to 29 on page 42.

[English]

The Chair: This is the second play in a revolving door issue we heard a lot about, and a compelling case could be made.

Before we get to this one, I understood from discussions, I believe with the minister when she attended, that there was an opportunity or an avenue available. I know we asked Peter, the chair of the IRB, whether or not it would be under his purview of the RAD, and I guess it wasn't. It was where it could be handled if there were some extenuating change of circumstances and so on that couldn't be introduced in the first instance—we would reopen that refugee thing.

I understood there was going to be an amendment.

Mr. Steve Mahoney: That is clause 113. This is the wrong clause.

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The Chair: Let's just review that for a minute. We want to make sure we're all on the same thing.

This deals with the PRRA. Joan, is this the right place for us to be talking about the second claim?

Ms. Joan Atkinson: Yes. The amendments you were speaking of on clauses 112 and 113 refer to the PRRA, the pre-removal risk assessment. This one makes reference to the fact that a claim for refugee protection can only be made once to the Immigration Refugee Board, and additional claims for protection are made through the PRRA. So this particular provision deals with those whose claim has been rejected by the board. If you need to make a claim for protection at a future date, then you go to the pre-removal risk assessment.

But you're talking, I think, Mr. Chairman, about abandoned and withdrawn claims, because this section of the bill also covers abandoned and withdrawn claims that, again, are eligible for pre-removal risk assessment, but do not get to go a second time to the Immigration Refugee Board.

The Chair: Well, BQ-23 and PC-21 obviously want to talk about second claims and the opportunity the second time around. We thought we had a solution, and perhaps it is in clauses 112 and 113 through the PRRA, but I can't deal with that; that's an entirely different section. That's why Madeleine raises it here, and PC-21 deals with it there.

Madeleine—or John, in this case, yours is practically the same.

Mr. John Herron: I know we all rant and rave, and I do it more than most, other than Mahoney, on amendments. This one is very serious in light of what we heard at committee. According to a myriad of groups, including the CBA, but also Canadians for a Fair and Just Immigration Policy, Bill C-11 unfairly restricts access to the refugee determination system by limiting claimants to one claim in a lifetime—a lifetime is a pretty long time—regardless of any change of circumstances or reason for prior refusal. I would like to get some help from the officials on this in a second, but according to the Canadian Council for Refugees, their NGO member groups say that over 50% of second claims are accepted, and that's in the appeal process. So this is the same kind of envelope, potentially, we're looking at.

The amendment we want to propose is that a claimant for refugee protection is entitled to have a second determination made by the refugee protection division where the circumstances of the claimant have changed or where there have been particular circumstances that have prevented some of the evidence from being adduced during the first determination. For example, a country's circumstance may have been somewhat violent at the time when that claim was made, and they made the determination that it wasn't that bad. They go back into a very horrific situation down the road, where the circumstances in that country have drastically changed. It is a new world, a new environment. We're saying that under Bill C-11 they don't get a second chance, regardless of what happened in that country's circumstance.

The other thing, which was a very specific example brought before the committee, is that there are certain circumstances where not all the evidence may have been given. One example that was given before committee—I remind some of the members—was where a women was sexually assaulted on numerous occasions. That women had never informed her husband of that rape, for social reasons. Being returned back to that country, with the stigma of a woman who was violated in that manner and the discrimination she faced, was catastrophic from a persecution perspective. If that person were not allowed to have a second appeal because of new evidence that wasn't adduced in the first hearing, we're blocking that particular issue.

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Refugee rights at the end of the day are human rights, and in this case for us not to provide a second appeal.... We heard this in every single place we went.

So I think there are very few amendments we would touch that will be as important as this particular aspect. Again, 50% of appeals of refugees end up getting passed. That's an immense envelope we miss. It's the same criteria, the same debate, where if we get this wrong it could lead to death or harm.

All we're saying in my amendment, proposed subsection 101(1.1), is if clearly the country's circumstances have changed, or there's new evidence that wasn't adduced the first time around that would have changed the appeal, then it should be considered. I appeal to the members to support this motion.

The Chair: Anita.

Ms. Anita Neville: Mr. Chair, I have absolute sympathy for what Mr. Herron has said and I'm totally supportive, but what I'm not sure of is the manner in which to do it. What I was going to propose was that under clause 112 we totally eliminate or delete paragraph 112(2)(c). In my understanding, this will clarify that people whose claim for protection has been excluded or rejected will have access to the pre-removal risk assessment again.

Mr. John Herron: This is for people who were never approved the first time. That's a different beast. That's for pre-removal.

Ms. Anita Neville: What I would like—

The Chair: John, let her finish her case.

Ms. Anita Neville: It will clarify that the people whose claims have been withdrawn or abandoned will have access to this procedure. What I would like is to hear from the administration on the most effective way of doing it, because I am absolutely supportive of what you're suggesting. I just want to make sure we're doing it in the most appropriate manner.

The Chair: Joan.

Ms. Judy Wasylycia-Leis: Could I get clarification on what you're proposing on clause 112?

Ms. Anita Neville: I'm proposing to totally delete paragraph 112(2)(c).

The Chair: The question is, if everybody wants to do what Anita has suggested, and John suggested, what is the best avenue? Is it either by paragraph 101(c) or paragraph 112(2)(c), as Anita suggested? The question to Joan is, where would be the most appropriate place to do what I think some members, or maybe the majority, of this committee would want to go with this second refugee claim?

Ms. Joan Atkinson: Let me start by saying that an individual who has had the benefit of the full refugee determination system, which includes a hearing at the refugee protection division, an appeal at the refugee appeal division, access to judicial review for judicial oversight of the decision taken by the Immigration and Refugee Board, and who has been found through that process not to be in need of protection and then is liable to removal from Canada, has the opportunity to have their protection needs considered again in the pre-removal risk assessment, where precisely that situation you spoke about, where the circumstances have changed, can be put on the table and can be assessed and can be balanced, that is, the needs of that individual for protection, against whatever ineligibility or inadmissibility. But in terms of the changed circumstances you speak to, there is an opportunity for the person to bring that forward in the pre-removal risk assessment, which is a protection assessment process.

Mr. John Herron: Can I clarify it?

The Chair: No, Anita has the floor.

Ms. Anita Neville: Can I clarify it? It might be the same thing.

There are no changed circumstances though. The issue is the circumstances are the same. They weren't brought forward in the first system.

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Ms. Joan Atkinson: Correct. In the case of the abused woman, for example, where there was difficulty for the individual to make her particular case known because she was in an abusive situation, the pre-removal risk assessment is designed to be able to bring forward information that was not reasonably available at that time to the pre-removal risk assessment decision-maker.

The Chair: What about the UNHCR, who suggested that the pre-removal risk assessment officials should be able to refer repeat claims back to the IRB?

I want a clarification because we asked Peter the same question, whether or not the refugee appeal division would be an opportunity to appeal a negative decision because of changed circumstances, or, as Anita indicated, circumstances that couldn't be brought up in the first case, in the first instance. He said no, the refugee appeal division would not be the place, obviously, to do it.

So therefore, the IRB is not the place. The refugee appeal division is also part of the IRB, so you're suggesting it has to be the pre-removal risk assessment—

Ms. Joan Atkinson: That's right.

The Chair: —unless you allow for second refugee claims in all instances.

Ms. Joan Atkinson: Right.

And we are I think going to be proposing a government amendment that will in fact clarify this particular provision in the pre-removal risk assessment to make it very clear that where the information was not reasonably available—

The Chair: We're running out of time. At 10 o'clock we have to vacate or else I have to bring in a new group of translators, and so on and so forth, so we're going to be quitting at one minute to ten.

I'm going to hold clause 101 and those pre-removal risk assessment clauses, 112 and 113, in abeyance until probably tomorrow for that discussion, because it could go on and on and we want to move forward. I haven't seen the wording on 112, and therefore, to reassure Madeleine and yourself, I'm not making a predisposition on how we're dealing with this. But it's sufficiently important that we want to make sure the ducks are all in order, either under 112 or under 101. So that's what we'll do.

John.

Mr. John Herron: We're moving the yardsticks here. There's enough sentiment in the room and I think we should talk about that.

What Anita's talking about helps, but I'm still concerned about a situation where, let's say, a refugee has gone back, or is not in Canada, so there's no situation of being a pre-removal risk, because, one, he never entered into Canada, or two, circumstances changed, he went back to the country, thought things were going to be great, and got it wrong five or six years down the road.

The Chair: That's why it's so complicated, John.

Mr. John Herron: So my concern is that pre-removal risk assessment doesn't address those two circumstances.

The Chair: I'm sorry, I want to deal with clause 101 and those provisions tomorrow.

(Clause 101 allowed to stand)

The Chair: Clause 102 has been carried.

On clauses 103 and 104 there are two government amendments, technical probably in nature, G-35 and G-36. That way we only have a couple of things to do tomorrow, hopefully.

Judy, NDP-51d is inadmissible because it wants to delete the whole clause and that's impossible, and so is NDP-51e and NDP-51f. That's why we're not dealing with it here.

(On clause 104—Notice of ineligible claim)

The Chair: G-35 and G-36. They're technical in nature and they've been moved. Any objections? None to 35. Any to 36, which is again consequential and technical? None.

(Amendments agreed to—[See Minutes of Proceedings]

(Clause 104 as amended agreed to)

The Chair: Clause 105 has been done. Clauses 106, 107, 108, 109, and 110.

Ms. Judy Wasylycia-Leis: Did we do 107 yet?

The Chair: I believe 107 I just did, but that's because I didn't—

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Ms. Judy Wasylycia-Leis: We have an amendment on clause 107.

The Chair: I have it. It's NDP-51g. Go ahead.

(On clause 107—Decision)

Ms. Judy Wasylycia-Leis: This deals with the issue of trafficking. To summarize it quickly, it's to ensure that victims of trafficking are included and that we almost create a subcategory around such people. I use the Chinese boat people as an example. Do you understand that?

The Chair: Yes.

Joan, are they covered already or, as Judy has indicated by this amendment, do we have to create a separate class for those victims who are being preyed upon by traffickers, human smugglers, and so on?

Ms. Joan Atkinson: I think there is more than one remedy and avenue to enable victims of trafficking to get protection or assistance from Canada. First of all, they have access to the refugee determination system. If there is a protection need according to the protection grounds in the bill, then they can be found to be a refugee. If they do not succeed through the refugee determination system, then of course they also have access to the pre-removal risk assessment. There are also humanitarian and compassionate considerations for victims of trafficking, which in some instances may be in fact more relevant than a refugee claim under the refugee determination system.

The Chair: So it's not necessary to create a separate class to cover it.

Ms. Joan Atkinson: Correct.

The Chair: Judy, do you want to continue with it?

Ms. Judy Wasylycia-Leis: I'll still move it.

(Amendment negatived—[See Minutes of Proceedings])

(Clause 107 agreed to)

The Chair: I think clause 108 has been dealt with. Clause 109....

(On clause 110—Appeal)

The Chair: I have amendments G-37 and NDP-51h. Judy.

Ms. Judy Wasylycia-Leis: This replaces line 6 on page 48. Again, it's an issue around due process, allowing an appeal of a decision of a visa officer for overseas claimants. It's trying to give equal access to the process for overseas claimants, as is the case for those in Canada.

The Chair: Can you take us through clause 110, Joan, on this appeal to the refugee appeal division.

Mr. John Herron: I think you're going to find this to be the same thing.

The Chair: Okay. Let's move on.

(Clauses 110, 112, 113, and 115 inclusive allowed to stand)

(On clause 116—Regulations)

The Chair: We have amendment G-44, which is probably technical in nature.

Joan.

Ms. Joan Atkinson: This amendment is a change in the way in which decisions under clause 115 can be taken. Clause 115 deals with the non-refoulement of persons who have been granted protection or refugee status. The provision allows the minister or the minister's delegate to do a weighing similar to the pre-removal risk assessment. In this amendment we're making this process similar to what we have in the pre-removal risk assessment process to allow for the possibility of an oral hearing. The individual can put their case forward orally to the decision-maker.

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The Chair: Any objections to G-44?

Mr. John Herron: The stuff we have in clause 110 coming up, is that going to mess it up?

Ms. Joan Atkinson: No this is quite separate.

(Amendment agreed to—[See Minutes of Proceedings])

(Clause 116 as amended agreed to)

The Chair: Clause 117 has three government amendments, G-45, G-46, and G-47, and NDP-51m, I'm sorry.

Judy, on clause 115.

Ms. Judy Wasylycia-Leis: On clause 115?

The Chair: On clause 116. No. NDP-51. What is it?

Ms. Judy Wasylycia-Leis: Sorry, I'm lost.

The Chair: Okay. Good night, folks. See you tomorrow morning at nine o'clock.