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37th PARLIAMENT, 1st SESSION

Standing Committee on Citizenship and Immigration

COMMITTEE EVIDENCE

CONTENTS

Thursday, February 21, 2002

0915

The Chair (Mr. Joe Fontana (London North Centre, Lib.))

Ms. Nancy Hughes Anthony (President and Chief Executive Officer, Canadian Chamber of Commerce)

0920

The Chair

Mark Boudreau (Senior Director, Policy and Research, Canadian Manufacturers and Exporters)

Ms. Margot Booth (Director, Policy Communications and Research, Canadian Manufacturers and Exporters)

0925

Mr. Mark Boudreau

0930

The Chair

Mr. Ramesh Dheer (National President, International Association of Immigration Practitioners)

0935

0940

The Chair

Mr. Ramesh Dheer

0945

The Chair

Mr. Ramesh Dheer

The Chair

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ)

0950

The Chair

Ms. Nancy Hughes Anthony

Mr. Benjamin Trister (Chair, Immigration Law and Policy Task Force, Canadian Chamber of Commerce)

0955

The Chair

Mrs. Margot Booth

Mr. Mark Boudreau

Ms. Anita Neville (Winnipeg South Centre, Lib.)

The Chair

Mrs. Margot Booth

1000

Ms. Anita Neville

Mr. Benjamin Trister

The Chair

Mr. Ramesh Dheer

Mr. Mark Boudreau

The Chair

Ms. Anita Neville

The Chair

Ms. Nancy Hughes Anthony

Mr. Benjamin Trister

1005

Ms. Anita Neville

Mr. Benjamin Trister

The Chair

Mr. Benjamin Trister

The Chair

Mr. Benjamin Trister

The Chair

Ms. Margot Booth

The Chair

Mr. Ramesh Dheer

The Chair

Ms. Anita Neville

Mr. Benjamin Trister

1010

The Chair

Ms. Madeleine Dalphond-Guiral

The Chair

Mr. Yvon Charbonneau (Anjou--Rivière-des-Prairies, Lib.)

Ms. Madeleine Dalphond-Guiral

Mr. Yvon Charbonneau

The Chair

Mr. Benjamin Trister

1015

The Chair

Ms. Nancy Hughes Anthony

The Chair

Mr. Ramesh Dheer

The Chair

Mr. Ramesh Dheer

The Chair

Mr. Ramesh Dheer

The Chair

Mr. Mark Assad (Gatineau, Lib.)

1020

Mr. Mark Boudreau

The Chair

Ms. Lynne Yelich (Blackstrap, Canadian Alliance)

The Chair

Mr. Benjamin Trister

1025

The Chair

Mr. Benjamin Trister

Mr. Mark Boudreau

The Chair

Mr. Mark Boudreau

Mr. Ramesh Dheer

The Chair

1030

Mr. Benjamin Trister

The Chair

Mr. Mark Boudreau

The Chair

Mr. Ramesh Dheer

The Chair

Hon. Senator Anne Cools (Ontario, Lib.)

The Chair

Senator Anne Cools

The Chair

Senator Anne Cools

The Chair

Mr. Roger Gallaway (Sarnia--Lambton, Lib.)

1045

1050

Senator Anne Cools

1055

1100

The Chair

Senator Anne Cools

1105

1110

The Chair

Senator Anne Cools

Ms. Madeleine Dalphond-Guiral

The Chair

Mr. Roger Gallaway

1115

Senator Anne Cools

The Chair

Senator Anne Cools

1120

The Chair

Mr. Yvon Charbonneau

Senator Anne Cools

The Chair

Mr. Roger Gallaway

1125

The Chair

Senator Anne Cools

The Chair

Mr. Roger Gallaway

The Chair

Roger Gallaway

Senator Anne Cools

The Chair

1130

Mr. Roger Gallaway

Senator Anne Cools

The Chair

Senator Anne Cools

Mr. Roger Gallaway

The Chair

Mr. Roger Gallaway

Senator Anne Cools

The Chair

Mr. Roger Gallaway

Senator Anne Cools

1135

The Chair

Senator Anne Cools

The Chair

Senator Anne Cools

The Chair

Senator Anne Cools

The Chair

Senator Anne Cools

The Chair

Senator Anne Cools

The Chair

Senator Anne Cools

The Chair

Senator Anne Cools

The Chair

CANADA

Standing Committee on Citizenship and Immigration

NUMBER 048

1st SESSION

37th PARLIAMENT

COMMITTEE EVIDENCE

Thursday, February 21, 2002

[Recorded by Electronic Apparatus]

¿ (0915)

[English]

The Chair (Mr. Joe Fontana (London North Centre, Lib.)): Good morning, colleagues and guests.

We are continuing our review of the regulations.

This morning we have with us the Canadian Chamber of Commerce, represented by Ben Trister and Nancy Hughes Anthony. Welcome to the two of you. Also with us is Canadian Manufacturers and Exporters, no stranger to this place, represented by Mark Boudreau and Margot Booth. Then we have the International Association of Immigration Practitioners, represented by Ramesh Dheer. Welcome to all of you.

I want to thank you for your input into Bill C-11. By now you probably know that we're into a full review of the regulations, and we would appreciate your comments, suggestions, and recommendations.

I think in some cases you've given us your brief. I would like you to take seven to eight minutes to summarize the brief and highlight your recommendations. If you haven't addressed the issue of whether or not we ought to regulate immigration consultants, we'd also like to hear your comments on that.

Let's start with the Canadian Chamber of Commerce. Welcome, Nancy.

Ms. Nancy Hughes Anthony (President and Chief Executive Officer, Canadian Chamber of Commerce): Thank you very much, Mr. Chair, and thank you very much for the opportunity to speak to the committee today.

As mentioned, my name is Nancy Hughes Anthony. I'm the president and CEO of the Canadian Chamber of Commerce. With me is Ben Trister, who is the chair of the chamber's immigration law and policy task force.

I believe you all have a copy of our brief.

[Translation]

I believe you also have a copy of the Chamber of Commerce's presentation.

[English]

I will not go through that in detail. In my presentation I will just hit some of the highlights.

[Translation]

To begin with, the Canadian Chamber of Commerce is, as you perhaps know, Canada's largest and most representative business association. We represent more than 170,000 businesses from every industry and region of Canada, as well as local chambers of commerce and boards of trade in hundreds of communities throughout the country. The vast majority of our members are employers that have a significant interest in immigration issues.

[English]

Last week the federal government unveiled Canada's innovation strategy. The key priority for the government as outlined in that strategy is “to develop, attractand retain the highly qualified people required to fuel Canada’s innovation performance”. That is a quote from Minister Rock's presentation. In order to achieve this objective the government set a goal, and once again I'll quote, to “ensure that Canada continues to attract the skilled immigrants it needs and helps immigrants to achieve theirfull potential in the Canadian labour market and society.” Certainly, the Canadian Chamber of Commerce fully agrees with this goal.

We do, however, have serious concerns that the government will be able to deliver on this very ambitious goal. Simply put, in their present form the regulations established under the act are very inconsistent with the innovation and skills agenda. Moreover, we feel that in some cases the proposals are counterproductive to Canada's economic interests.

If adopted, the proposed selection criteria now before Parliament would dramatically change the face of immigration in this country and not for the better. As you know, the proposed regulation criteria would pass applicants who attain 80 or more points in the new selection grid. So an applicant who is highly functional in English and the right age, which Citizenship and Immigration says is between 21 and 44; who has the maximum required skills work experience, which is four years; and who has a bachelor's degree would in fact fail, unless that person also scored the maximum points for adaptability or validated employment with a Canadian employer. We think this is wrong and that it will deprive Canada of some tremendous skill and expertise.

[Translation]

In earlier versions of the proposed selection model, adaptability was to be used to recoup points lost in another area—now adaptability is a part of the core criteria and loss of points in any area would result in a failed application. This set of new criteria represents a dramatic and largely unsupported change to Canada's immigration system.

[English]

Moreover, the new selection criteria proposals will make it extremely difficult for Canada to attract foreign students to this country since it would be very difficult for them to immigrate here. Similarly, it would be very hard for recent graduates anywhere, including the United States or the U.K., to come to Canada, even though their background is often highly relevant to the Canadian environment. Even skilled workers with many years of experience would find it difficult to qualify.

To make matters worse, the government seeks to impose the selection criteria retroactively. Thus well in excess of 100,000 people would have their applications rejected, even though they were told that once they filed their applications any subsequent changes to the selection criteria would not impact negatively on their applications. The government seeks to change the rules on these applicants unfairly and without warning.

Furthermore, the government is seeking the power to use retroactivity to fail applicants on an ongoing basis. If it is given this power, it would be literally impossible for applicants to know what criteria would be applied to their applications.

For us in the business community this gives rise to a number of questions. For example, why would anyone choose to participate in an immigration system in which the rules cannot be known, when other countries offer predictability? How can a Canadian employer attract a skilled worker to Canada without being able to offer some assurance that the worker will in fact be able to immigrate to Canada?

It is critically important for Canada to be able to attract workers with a variety of skill levels and for Canada--and I know you will agree with this--to be the destination of choice for skilled immigrants. As the government's innovation strategy shows, in ten years' time, 100% of the net growth in Canada's labour force will come through immigration. The Canadian economy requires immigrants with a broad range of skills, not just university graduates with educated spouses and connections in Canada.

In the view of the Canadian Chamber of Commerce, the new selection system will seriously impede growth and development of Canada's labour force, thereby hindering the economy's long-term growth potential, our future competitiveness, our prosperity, and our standard of living.

Before the government makes significant changes to these selection criteria it needs to better understand the requirement of Canadian employers. This will enable the government to develop a coherent strategy to introduce immigrants with the required skills into our workforce. The new Minister of Citizenship and Immigration should definitely work with Canada's business community to produce an immigration policy that will contribute to Canada's future economic prosperity.

Mr. Chair, there are further details regarding our specific concerns that are contained in the brief before you, and we would certainly be pleased to answer any questions you might have.

Merci.

¿ (0920)

The Chair: Great, thank you very much, Nancy.

We have the Canadian Manufacturers and Exporters' senior director. Is it Mark or Margot who's going to...?

Mark.

Mr. Mark Boudreau (Senior Director, Policy and Research, Canadian Manufacturers and Exporters): Thank you, Mr. Chair. We will echo many of the sentiments of our colleagues from the chamber.

The Canadian Manufacturers and Exporters are pleased to present our views on parts 1 to 17 of the proposed immigration and refugee protection regulations. CME brings an important industry perspective to the development of immigration law and policy. Our members account for 75% of Canada's manufactured output, 90% of its exports, and some 2.4 million Canadian jobs. They're relying more and more on skilled workers from other countries to innovate and improve their productivity so that they can compete and win internationally in the face of growing skill shortages.

Mr. Chair, we're going to limit our remarks this morning to two key issues: the selection criteria governing skilled worker applications from permanent residents, and retroactivity. This does not mean that CME has no concerns about other sections of the proposed regulations, such as those dealing with removal orders and review before deportation. However, we feel we do not have the expertise to comment on these issues at this time.

I want to begin by addressing why the issue of skilled worker immigration is such an important issue for the Canadian manufacturing community. Then my colleague, Margot, will speak to our concerns regarding the selection criteria and retroactivity. Then I will wrap up with some general comments and recommendations.

Given an aging domestic population and labour force, Canadian companies cannot look to Canada to supply all the skilled workers they need. Increasingly, they must look beyond our borders to workers trained in other countries. The government's own officials acknowledge that immigration now accounts for about 75% of the growth of Canada's workforce and in ten years will account for about 100% of that growth.

At the same time, Canada is competing on a global basis for skilled workers who can be employed in today's high-tech manufacturing plants. If Canada's immigration system is seen to be too restrictive or subject to unpredictability--i.e., if the new regulations can be applied retroactively--then the proposed skilled immigrants will simply go elsewhere. As you know, Mr. Chair, where the skilled workers go, the investment will follow.

Now my colleague, Margot, will outline CME's concerns regarding the proposed selection criteria for skilled workers and will address the retroactivity issue.

Ms. Margot Booth (Director, Policy Communications and Research, Canadian Manufacturers and Exporters): Mr. Chair, committee members, I'd like to start by saying that CME appreciates the need for immigration and refugee protection regulations that reflect modern concerns and realities. We also know it can be really difficult to design and implement them, and we commend Citizenship and Immigration Canada for their efforts. But we've found a disturbing gap between the stated intent of the proposed regulations and the effect they are likely to have in some areas. We feel there's a lot of scope for improvement, especially regarding the skilled worker selection criteria and the use of retroactivity.

With respect to skilled worker selection, we take issue with the education requirement, the adaptability factor, and the transferable funds requirement. I'll now comment briefly on those concerns, beginning with the education requirement.

The selection grid is weighted heavily in favour of formal education, with maximum points, 25, awarded to applicants with university doctorate and master's degrees. The most points a skilled tradesperson could hope to earn would be 20, and only then if he or she had--and here I'm quoting from the proposed regulations--a “diploma, trade certificate or apprenticeship requiring 3 years full-time studies and total of 15 years of full-time study/training.” It's rare for skilled tradespeople to have 15 years of formal education, whether they were trained here or anywhere else, so they would be significantly disadvantaged by the proposed criteria.

A skilled tradesperson with 14 years of formal education would earn only 15 points, while an applicant with 13 years would receive just 10. With education accounting for up to 25 of the 100 available points, and a pass mark of 80, most skilled tradespeople would end up with a shortfall for which it would be very hard to compensate in other areas.

Second is the adaptability factor. The introduction of this new core factor represents a change in the current system that would have serious and far-reaching implications. Up to 10 points out of the 100-point maximum would be awarded to applicants for having an educated spouse, a relative living in the country, time spent working or studying here, or a job offer. Those with no so-called adaptability qualifications would in effect be trying to amass 80 points out of a total of just 90 points available to them, and this despite the fact that a spouse's education or a connection to Canada does not necessarily affect their suitability to fulfill Canadian employment needs. CME views this as discriminatory and harmful, and we believe adaptability should not be treated as a core factor.

Third is the transferable funds requirement. Under the proposed regulations, applicants, including those with arranged employment and those already working in Canada, must have transferable funds equivalent to the relevant annual low-income cut-off for their family situation. We feel this requirement would discriminate particularly against younger workers and applicants from developing countries, who are not likely to have enough cash on hand or convertible assets to make up the required amount in Canadian dollars.

As for retroactivity, CME's concerns stem from two sources. One is that the use of retroactivity in this instance would result in the denial of many applications currently on file. The proposed regulations as well provide for ongoing retroactivity by requiring individuals to meet the criteria at the time of landing, visa officer assessment, visa issuance, and of course application.

There have been suggestions that the government is using retroactivity to reduce the backlog of skilled worker applications currently awaiting assessment. Indeed, we have heard estimates that this measure could wipe out up to 80% of them. While we're sympathetic to this administrative problem, we're not convinced this drastic measure will save the government time or money, or reduce the backlog in a meaningful way. Many of the existing applications are likely to be appealed, refiled under the new regulations, or both, and within a matter of months, the government will be facing a backlog of much the same proportions as it is at present. In the meantime, however, it risks compromising the integrity of the skilled worker immigration system. Invoking retroactivity in this instance would be akin to throwing the baby out with the bathwater.

Applying new regulations retroactively would create a great deal of uncertainty in Canada's immigration system that runs counter to our economic interests, given increasing global competition for skilled workers. If we are to compete successfully for skilled workers, Canada cannot create a system that has no foundation of predictability.

My colleague, Mark, will now conclude our presentation.

¿ (0925)

Mr. Mark Boudreau: Mr. Chair, the proposed regulations governing the acceptance of skilled workers into Canada as permanent residents are not flexible enough to meet the needs of our manufacturing community, which is now facing a growing skills shortage.

The regulations with respect to skilled workers selection criteria and retroactivity in particular are flawed and in urgent need of rethinking. Not only is a skilled workforce essential to Canada's long-term competitiveness; it is an important factor in future investment decisions, as companies shop around the globe to locate their facilities. As I said earlier, where the skilled workers go, investment follows. It is therefore essential that Canada get its immigration policy with respect to skilled workers right.

CME believes the proposed regulations as drafted will hinder Canada's ability to meet this challenge. The federal government has indicated that the proposed regulations will go into effect on June 28, 2002. CME strongly recommends that the Minister of Citizenship and Immigration postpone the implementation so the government can further consult with industry and amend them accordingly.

CME and many other groups that have appeared before this committee have identified serious problems with the proposed regulations. These problems must be fixed before they throw Canada's skilled workers immigration system into a crisis. Our organization does not lay claim to any special expertise in immigration matters, so we do not intend to be highly prescriptive in proposing solutions, but we want the government to consider several options when it goes back to the drawing board, as surely it must.

In our view, a lot of the concerns regarding the ability of skilled workers, including tradespeople, to qualify could be resolved by setting the pass mark at a lower, more reasonable level. This would give applicants who do not have a university degree a fair chance. Or, Mr. Chair, consideration should be given to creating two selection streams of skilled workers, with separate criteria or pass marks for university-educated applicants and skilled tradespeople.

The adaptability factor must also be revisited. Rather than simply eliminating it, a workable option would be to treat the adaptability criteria as a bonus point grid rather than a core factor. That way, additional points could be made available to individuals who might have a shortfall in another area, without disadvantaging any applicants.

As for the transferable funds requirement, it should be eliminated or modified with a view to making it substantially less onerous; for example, by calculating it on a basis of no more than half of the relevant yearly LICO amount, as some groups have recommended.

Finally, CME recommends very strongly that our new immigration refugee protection regulations not be applied retroactively now or in the future.

We'll be happy to answer any questions you have.

¿ (0930)

The Chair: Thank you very much, Mark and Margot.

Now we'll go to Ramesh Dheer.

Mr. Ramesh Dheer (National President, International Association of Immigration Practitioners): Mr. Joe Fontana, chairperson of the parliamentary committee on citizenship and immigration, and other honourable members of the committee, ladies and gentlemen, I bring you greetings.

First of all, I think Joe has already introduced me. My name is Ramesh Dheer. I'm the national president for the International Association of Immigration Practitioners, which is a body of lawyers and consultants right across Canada. I bring you greetings from our members.

We have submitted a brief, and I think the members of the committee have the copies, but I'm going to highlight a few points from our brief. As a matter of fact, my colleagues, who have already spoken this morning, have said quite a lot of what I wanted to say, but I will still start with the issue of retroactivity.

As has already been said, the retroactivity is not going to be helpful at all because, if not 80%, a good 70% of the independent category of skilled and professional workers are not going to qualify. And also, it's not even ethical. I have practised immigration law for the last 26 years. This is the first time that I have seen the retroactivity factor being imposed on potential new immigrants. I think it's unethical. Also, if this is carried out I think we're going to be losing a lot of potentially good immigrants who would like to come to Canada. We'll be losing them to the U.S., Australia, New Zealand, and other countries.

I'll go to the next point, which is the new selection criteria. Under the new selection criteria, even if you have a masters degree or a PhD, you still are not going to be qualifying on your own unless you are helped by relatives in Canada and other factors. And I think the people who want to come to Canada should be allowed to come to Canada on the basis of their qualifications and experience and they should not be dependent on other side issues, such as relatives and matters like that.

As far as business applicants are concerned, I understand the new requirements are that a post-secondary education is a must, and then senior management experience and commanding an office staff of 50 people, and a net worth of $40 million. Our slogan has been, Canada is open for business. Now, with this new criteria, I don't know how much Canada is open for business. And I think this should be made more in line with what we have been doing in the past so that we can continue to attract experienced business people. Of course, we want them to bring money along, but not with these harsh conditions.

The next one I want to talk about is companion cash requirements. A family of three now will have to bring about $27,000 in order for them to come to Canada. That is also very unfair because we feel that skilled and professional people are basically coming here on the basis of their expertise, not how much they are loaded with money. So I think this requirement should be taken out.

The next point is on Canada's population growth and immigration policy. We have been hearing a lot that Canadian immigration has to be geared towards almost 1% of Canada's population, which should be about 300,000 immigrants annually. Now, with these harsh criteria and conditions, we don't understand how we'll be able to maintain 300,000 immigrants annually with the declining birth rate. So we think that in order to have the intake of desired immigrants, the selection criteria have to meet the labour demands, and we should continue to do that.

¿ (0935)

The current policy, which has been in practice for a long time, has been working. Our question is, why should we now suddenly change this successful policy?

The next point concerns academic qualifications and language requirements. If, for example, we need a tool-and-die maker very badly in Canada, why do we need a tool-and-die maker with a degree? To the best of my knowledge, I don't think any university in the world would grant a degree in tool-and-die making. We feel that the selection criteria for potential immigrants should be fair so that the immigrants can qualify and at the same time be useful to our country.

The new pass mark grid is 80 out of 100. The previous one was 70 out of 110. I'm not going to go into the details here, but I personally think, and our association also thinks, that the new criterion should be 65 out of 100. If it has to be 110, then 70, as in the past; and if we are going to have 100 now, then the pass mark should be 65.

The next point is with regard to the skilled and professional workers shortage. This is mainly to do with the people who should be brought to Canada. For example, an employer wants to bring a machinist, a computer analyst, or any other skilled person, and they want to bring them right away so that the company doesn't suffer in the progress of its work. We feel that the immigration department should have close coordination with the human resources department so that if an employer wants to bring a temporary worker on a work permit in a very short time, there can be support from the immigration department. That way the industry won't suffer due to the absence of a qualified worker.

With regard to family sponsorships, in the past we had a system called the “nomination” category, because the main spirit in Canada has been one of family reunification. We feel that married brothers, sisters, sons, and daughters should be allowed under the nomination category, as was the case about 10 to 12 years ago.

In terms of the last remaining member of the family, we received some information that the original proposed draft had included the last remaining member of the family, but now it has been taken out of the final draft. We don't think it makes sense for one last remaining member of the family to sit in the old country when the entire rest of the family is in Canada. So we feel this should be reinstated.

We also feel that family members with minor medical difficulties should be shown flexibility and compassion by immigration officials in the approval of sponsorship applications from overseas.

As well, we feel that the other members of the family here who are sponsoring from Canada should be allowed to do a joint sponsorship in order to meet the LICO amount. The LICO amount should not be based on the last 12 months but be geared more towards the current income of the sponsoring family, because circumstances change.

With regard to the length of undertaking, we simply feel that in all cases of family sponsorship the length of undertaking should be three years.

¿ (0940)

Foreign students should be allowed to come with a more moderated system so that these people can come here and be trained at their own cost. That will bring more money to our colleges and universities. As well, once they have done their schooling here, they should be given some kind of work experience authorization, and after that they should be allowed to apply for permanent residence from within Canada so that we don't lose them to some other countries.

The next point is with regard to live-in caregivers, who now require a grade12 education. We feel that this should be changed to grade 10, and that credit should be given to experience.

When a pardon is granted, we feel that--

The Chair: Ramesh, excuse me. We have your submission. I wanted you to highlight it because we've read it all and would very much like to ask you questions.

Mr. Ramesh Dheer: Okay. But I want to say something, Joe, about the regulation of immigration practitioners, if you'll allow me, either now or later on.

The Chair: Go ahead.

Mr. Ramesh Dheer: We have done some research, and there are approximately 2,500 immigration consultants right across Canada. Some of them are, of course, very honourable and qualified people, in practice for over 20 years and all that. However, in order to give proper protection to the consumer and also to uphold the conduct of this profession, I feel that the immigration consultants should be mandatorily licensed. There has been some talk of this in the past.

I wrote a letter, Mr. Chair, to the Minister of Immigration about 10 days ago. I immediately will send you a copy when I go back to Toronto today. We suggested that our association is willing to take a lead role in assembling and compiling a master list of all immigration consultants right across Canada. We can do that, number one, and two, we can have a national conference or convention in the next two months, where we can have an assembly. As well, we can set up a sort of national college or school that will license the immigration practitioners.

In our own association, we have already developed a code of conduct, code of ethics, one that can still be polished. We are also recommending to our members that they take the professional liability errors and omissions and conduct liability insurance. We are also asking them to open up trust accounts, and when a counsel or consultant is retained, we're asking them to sign a contract or agreement with the client so that the client knows the expectations.

We are fully geared towards this. We have been granted a charter by the federal government, by the industry department. We have three classes of membership--licensed members, associate members, and student members. Licensed members are people who may have a bachelor's degree from any.... They may not be barristers, but they do have a law background, or they may have a diploma from somewhere in Canada on immigration, or they may have 15 to 20 years of experience. Then we have an examining board within our association, and we then qualify them and give them a licence.

Then we have associate members, who do not have enough experience. We don't license them. We tell them they have to work under Mr. or Ms. So-and-so.

¿ (0945)

The Chair: You'll be able to get into some of the details later, Ramesh. I have to move on, just to be fair to everybody.

Mr. Ramesh Dheer: Okay. I will send you a copy of the letter, and then I hope to hear from you so that we can initiate the process.

The Chair: Thank you. We'll move to questions.

Madeleine, you're first today.

[Translation]

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): I will begin by thanking you for being here this morning.This is the fourth, or the third week that we have had an opportunity to hear what those directly affected by the new regulations think.

Before we even began hearing from witnesses, several members of the House expressed grave concerns, in particular with respect to the new grid and the pass mark. It is quite surprising to find that people from a variety of sectors agree that these regulations are unacceptable.

That having been said, I think you will understand that the committee is going to wage a very serious battle—if I am mistaken, I am sure that the Chair will set me straight—to make sure that these regulations reflect a reality and not a mindset. That is the first thing.

Second, in light of how regulations are evaluated, it seems to us that having them take effect by June 28 is not realistic. I cannot swear to you that we will get the department to change its mind on this, but I do not think I am wrong in saying that we will give it a try. So these two things are clear.

I would like to come back to some points which were not raised by other stakeholders. One of them, I believe, was made by the Canadian Chamber of Commerce. You mentioned that when the new legislation was being studied, the idea was that it would allow people, especially those already here under a student or a temporary worker visa, to apply for immigration or permanent residence from within Canada, and that reception to this idea was positive, at least in the case of those around the committee table. But this is not in the current regulations. I would like you to tell us the benefits you saw and still see in a regulatory provision which would allow students or temporary workers to apply from within Canada.

My second question is more of a comment. If you took the time to look at the blues, you will have seen that I objected strongly to the completely amazing age of 44. I think 44 is great, but I saw in this a very clear discrimination, and one which was ridiculous, because we all know that retirement at 55 years of age is practically a thing of the past and that people, especially those with training and experience, will work until they are at least 70. So one's working life will begin at 30 and continue until 70. This was something to which we were very sensitive, and I find the proposal which was made very interesting.

So, before the Chair stops me, I would ask you to answer these few questions.

¿ (0950)

[English]

The Chair: Yes, let's start.

Nancy.

[Translation]

Ms. Nancy Hughes Anthony: I will begin by saying that I am delighted to hear that the committee is looking at amendments because, in our view, these are basic regulations for the Canadian economy, and the necessary time should be taken to amend them so that our immigration process is truly competitive globally. So we are much encouraged to hear you say this.

I am going to let my colleague, Mr. Trister answer these two questions. Obviously, the initial application from within Canada is a flaw which we identified in the current regulations. The Buffalo Shuffle is how we refer to the practically pointless trips people are required to make.

I also agree completely with the point about age discrimination. This is not the time to have a good 45-year-old candidate who does not qualify.

Perhaps Ben has something to add.

[English]

Mr. Benjamin Trister (Chair, Immigration Law and Policy Task Force, Canadian Chamber of Commerce): First on the age factor, we haven't seen any data that would support the range of 21 to 44 years of age, nor, perhaps more importantly, have we seen data that would support giving somebody two points less for every birthday they have after age 44. Under this proposed system, if the pass mark were 80, somebody could get the maximum for adaptability in every other factor, but by turning 45 would fail because they would get 79 points.

For business, that doesn't make a lot of sense, because if the goal is to select people by their adaptability for the purposes of participating in the labour market, then surely employers would not discriminate based on whether somebody was 44, 45, or 46. So the chamber's proposal is to put less of a fine point on it and give ten points until they're 50 and five points if they're between 50 and 55. It's simple and more reflective of the reality of the business point of view when they consider applicants.

In terms of in-Canada landing, it's an interesting question. If you're a live-in caregiver and spend two years in that employ, you get landed status. We do that for live-in caregivers because we know there's a labour market need for them and we want to encourage them to come here. But one wonders why we wouldn't treat a tool-and-die maker or a company president the same way.

We were hoping to see, in the in-Canada landing provisions, that you could transition if you had spent a number of years in service and had an ongoing job offer. If we know you've successfully established here, you ought to be able to land without having to worry about the point system. Now all of that's gone, and we would like to see it back.

¿ (0955)

The Chair: With regard to the in-Canada landings, I think it would be fair to say, as Madeleine has indicated, that Bill C-11 anticipated, and I think the minister and the department boasted, that this was going to make it easier for people, once they were here for whatever reason, to apply here and not have to do the Buffalo or Detroit shuffle, or any other shuffle, because it was absolutely ludicrous to suggest.... So we are as surprised as you are about that one. The language is so fuzzy that we'll get it clarified, one way or the other.

I know that Mark and Margot as well as Ramesh talked a little about the.... Do you have anything further to add to that one or about the age...?

[Translation]

Mrs. Margot Booth: Yes, I wish to make a few comments.

First, we were very reassured by your comments about how seriously you are taking these issues.

With respect to the process of applying from within the country, it seems to me that the former minister made a few announcements in the past about this, but nothing was done. I think that the government missed a very important opportunity to fill this void when the regulations were drafted.

Regarding age discrimination, each year, Manufacturiers et exportateurs du Canada polls its members to learn of any concerns they may have about their employees. We have observed not only a lack of technical expertise, but a lack of experience as well. If the ceiling is set at 44 years o f age, in my opinion, that's lower than it was several years ago. Experience must also be factored into the equation.

I don't know if Mark has anything further to add.

[English]

Mr. Mark Boudreau: As a country, we're looking at a coming debate on whether we should increase the retirement age from 65 to 67 or 68.

The Chair: Hell no.

Mr. Mark Boudreau: So why would we discriminate in taking immigrants in terms of that? As Margot said, what the manufacturing sector is looking for is people with experience.

The Chair: Anita.

Ms. Anita Neville (Winnipeg South Centre, Lib.): Thank you very much for your presentations. Much of what you have raised here today has been raised by others, and you're reinforcing what we've heard.

I was interested in I guess it was the CME's suggestion of using the adaptability factor as a bonus factor. I don't know if that's been brought up before, but I like that idea, although I know the difficulty of starting to tamper and play with a grid.

The Chair: Anita, can I just add something?

I wrote down exactly the same thing, but I'm not sure...and, Margot, you may want to clarify this for Anita and I. I got the impression you were not talking favourably about the adaptability scoring. I wanted to ask you the same thing. Do you think it's too high or low?

Anita said she thought you said something about bonusing. I never heard that at all. So perhaps you could clarify what your position is, and maybe, Nancy, you could too.

Mrs. Margot Booth: I'm glad you got the impression that we're not happy with the adaptability factor as a core factor. We are not.

We thought one option might be to eliminate it entirely, but at the same time we think it also has a role to play. For example, if an applicant has difficulty making up some of the language marks...and, of course, once the applicant is here, they're going to learn the language. It's not something they cannot change, as for example, their age. In that case, the adaptability factors may be used to provide them with a bit of a bonus to make up. But it's not applying those factors as a core factor to all applicants, thereby disadvantaging.

À (1000)

Ms. Anita Neville: That's how I heard you.

Mr. Benjamin Trister: I've been involved for years in discussions with the department over the development of this, and this set of proposals is the very first time we've seen adaptability as a core factor. It has always been, from previous discussions that I can recollect, discussed in the way that Margot was just saying--it was meant to make up for a shortfall. Even when you establish a pass mark at 70, you're still insisting on fluency, and on maximum points for age, experience, and education.

So surely, if somebody's a little bit short, if they're not highly functional but they're functional enough to be in the labour market, we might use the bonus points to offset what might be a minor shortage.

The Chair: On the adaptability question...?

Mr. Ramesh Dheer: On adaptability, I agree with my colleagues here. The five points for having relatives here and some points for the spouse's qualifications and all that should be additional points. But as far as adaptability is concerned, it should be like a bonus if the visa officer thinks this person is fit enough, meets all of the qualifications, and needs a bit of a boost. There should be more of a bonus when the visa officer thinks this person will make a go of it in Canada. I think that is how it should be, and I agree with my colleagues fully.

Mr. Mark Boudreau: I think the major problem with the grid is the fact that you have one shoe that fits all. There's no doubt Canada wants to bring in some of the best and brightest, whether you have a PhD in physics or whatever. Maybe they should come down one side of the grid and say okay, and for skilled workers, such as tool-and-die makers and machinists, maybe come down another side of the grid. That's more flexible.

The government has itself sort of in a box, in the sense of trying to make everybody fit within that grid. There's such disparity between individuals who have PhDs and those who have 15 or 20 years of experience as skilled workers in other countries, who we want to bring here. So I think that's something the government has to grapple with.

The Chair: I'm sure we'll come back to this question, but I have other questions.

Anita.

Ms. Anita Neville: Let me ask my questions, and then you can answer them however you want.

Mark, you just addressed my next one. Again, I'm looking to see if others have made the suggestion of the potential of having qualifications for two streams of skilled workers. I think that bears some exploration.

I have two other quick questions, and then maybe I'll get another turn. The chamber indicated it is already aware of companies losing recruits as a result of the government's intention to utilize retroactivity. I would be interested in hearing how widespread that is and what's happening.

I'd also like to know, from the chamber and the CMA, how widely your organizations or members in your organizations use the provincial nominee programs as means of recruiting skilled workers. Then I'll give someone else a chance.

The Chair: Nancy.

Ms. Nancy Hughes Anthony: Benjamin.

Mr. Benjamin Trister: First on streams, you might be interested in knowing that a few years ago the department came up with a rather elaborate scheme for what they called pools and streams. It was part of a regulatory package that was not successful, but it wasn't successful for other reasons. So it wouldn't take a lot of work, if you were to ask the department to come to you with that proposal. At least they could inform you how that would work. It was a good idea and would have been workable, if they had had the resources to implement it.

In terms of losing recruits, I can't say how widespread it is, but a number of companies have told us already that just the mere prospect of retroactive application of the regulations has stopped them from being able to attract people here. People have been unwilling to come here unless they had some comfort regarding their ability to immigrate. It's anecdotal.

À (1005)

Ms. Anita Neville: But if I can interrupt you, would they be coming as temporary workers with the potential of permanent residence? I don't understand.

Mr. Benjamin Trister: When employers try to attract people from abroad, particularly if they have families and people who are going to be uprooted in the process, they don't want to do that unless they know there are long-term prospects. It's well-known that temporary work permits are limited in duration and you can only get a certain number of extensions. For example, if you come here under NAFTA as an inter-company transferee with specialized knowledge, you're limited to five years.

Since they know work permits are of a limited duration, people often want to know if they are generally of a quality that Canada would accept them as immigrants, should they choose to stay longer. In the cases of these people who have declined employment, that was their concern--that in the long run they might not be able to stay. So they were unwilling to uproot their families just to come here on temporary work permits.

The Chair: I have a question about provincial nominee programs. Could I have all of you address whether or not they're helpful, more helpful or less helpful?

Mr. Benjamin Trister: They are very limited in number. If the number could be expanded, I'm sure they would be a useful tool. Ontario, the province I'm from, doesn't have one. It doesn't even have an immigration policy to speak of, really.

The Chair: And they have a big opinion.

Mr. Benjamin Trister: Lately they do, yes.

So it could be expanded. I think provinces have a role to play in this to meet their own needs. Quite frankly, one of the biggest challenges we've had is distributing immigration fairly across the country. To that end, provincial nominee programs are a very useful tool.

The Chair: Mark or Margot.

Ms. Margot Booth: I'd like to echo Ben's comments on that. Certainly he's much more of an expert on this matter than we are, but I believe our members would likely benefit from an expansion of this.

The Chair: Ramesh.

Mr. Ramesh Dheer: In my experience, to be honest with you, I think this provincial nominee program has not been very effective. Unless it were made really effective and the provinces.... I don't think the provinces are geared primarily towards immigration issues. I think they think it's federal responsibility. In my experience, then, I don't think there is much effect.

The Chair: One final question.

Ms. Anita Neville: I would like to follow up on the provincial nominee program. Ben has talked about the dispersal. My province, which is Manitoba, has an effective program that they want to expand. I guess what I'm asking is, should the numbers be there for them to come in to Manitoba and wherever else--Newfoundland, I know, is looking at expanding their program--would your members use this program as a way of promoting immigration and attracting skilled workers?

It's a supply and demand thing, I guess. If your members use it, then the provinces can make the argument to increase the numbers. And for Manitoba and others, it's very important.

Mr. Benjamin Trister: In some cases these programs have been occupation-driven, so to the extent that I had an employee who fit that occupation.... I mean, businesses will always choose the path of least resistance. If these programs were expanded to accommodate more occupations, for example, or if they were modified in a way where they could be, for example, used like....

You're aware of the government's proposal on the employment authorization side to facilitate agreements with specific employers who have needs. Well, perhaps provincial nominee programs could be adapted so that they could basically partner with significant industries or significant employers and come up with programs that would work for them. There are lots of great ideas that could be used to facilitate immigration.

Perhaps I can make one small last point on the dispersal issue. One of the interesting ideas is to give adaptability points to people who've studied or worked or who have family in provinces where they get less immigrants than others, or where they don't get their fair share. Even though it doesn't guarantee that somebody's going to necessarily move there, it's quite possible that if they have a family tie there or have worked there and are familiar with it, they might actually go there. Why not give them three to five points for something like that?

À (1010)

The Chair: On the same question, Madeleine has a supplementary.

To the members of the committee, I should tell you that the grid systems from other provinces--I think we've tabled these with you--and specifically from Quebec are much more liberal, if I could use that term, in terms of attracting immigrants there. For that matter, Manitoba's grid system is much more liberal than the one that's proposed.

Madeleine.

[Translation]

Ms. Madeleine Dalphond-Guiral: I just wanted to make a comment about the situation in Quebec. There has been a Canada-Quebec agreement in force for many years and we in Quebec are very happy with it. As I understand it—and I imagine that Mark and Yvon will be able to confirm this—Quebec is responsible for selecting its immigrants, in the case of skilled workers.

From what we have heard, the procedure is working very well, seems to be very effective, and meets Quebec's labour needs. I was therefore thrilled when I realized that the regulations before us will not have an impact on the grid used in Quebec. What we heard from stakeholders from Quebec and elsewhere is that the particular way in which the department responsible for immigration in Quebec approaches— In other words, the grid is one tool, but not the only one. That is the whole difference.

That having been said, this does not prevent my colleagues and I, even if we do come from Quebec, from fighting to make these regulations acceptable and, subsequently, effective and useful.

[English]

The Chair: Yvon.

[Translation]

Mr. Yvon Charbonneau (Anjou--Rivière-des-Prairies, Lib.): Mr. Chairman, I must agree with what Madeleine said. We have doing this for quite some time.

Ms. Madeleine Dalphond-Guiral: Close to 25 years.

Mr. Yvon Charbonneau: The first agreement goes back to 1979, and it was updated several times. So, there is some experience there. For political, cultural and linguistic reasons, there is no doubt that, as a province, Quebec probably has a greater interest in immigration than certain other provinces. Nonetheless, this grid is a reference point which we must examine because we are the ones who must now look at this issue of federal regulations.

We have before us three organizations who have told us what they think of the proposed regulations. Basically, they have said that retroactivity makes no sense, that it is unfair, etc. You are not the first, and we have taken careful note of your comments.

You have made several suggestions, all of them in favour of more flexibility, more transparency, more understanding of Canada's needs or of the situation of immigrants or those who wish to immigrate to our country. On the whole, your suggestions, if approved, would help to open the doors wider but would do so carefully and systematically. I thank you for your contribution.

I would like to ask you if, in your opinion, the proposed regulations really reflect the open approach of Bill C-11, which was passed, or not?

Second, with respect to the consultation which led to the drafting of these regulations, were you associated in any way with this version? Did you try to be and were excluded or, if you were heard, were you understood?

[English]

The Chair: Let's start with those very good questions, one with regard to consultation before the drafting of these....

Go ahead.

Mr. Benjamin Trister: In terms of whether it's consistent with Bill C-11, let me say that Bill C-11, as you know, was framework legislation. With respect, perhaps a more clear question would be whether it's consistent with what the government said it was going to do when it reviewed Bill C-11.

The Chair: With the gist of it, the spirit.

Mr. Benjamin Trister: I think the selection criteria component of the regulations and the lack of an in-Canada landing class are inconsistent with the direction the government said it was going in when the hearings took place in the House and the Senate.

As for consultations, you turn your attention to the houses that are burning, I suppose. Lately, after Bill C-11 in particular, the business community has learned a lot about the nuts and bolts of immigration, so we're growing more able to comment. We weren't involved in the past number of years with immigration. Nancy can correct me if I'm wrong, but I think historically we liaised more with the industry department, and the industry department is only now really becoming involved in this area. And we're happy they are.

I think we have more to offer now and are in a better position to offer it. We're hoping the government will consult with us.

À (1015)

The Chair: So the answer to the question, from business, is no. Am I to understand that? If you want to say no, Ben or Nancy, say no. We're trying to find out, was the business community asked its opinion on these regulations before they were drafted?

Ms. Nancy Hughes Anthony: The answer is no. I think we could say we should have been beating the doors down, but the fact of the matter is, in terms of the kind of consultation we enjoy on other issues, we were quite astonished at what came out at the end of the pipeline.

The Chair: We're trying to find out who they did consult with. This is a process of elimination.

Mr. Ramesh Dheer: Mr. Chairman, yes, we were not asked, number one, and--

The Chair: “No” you were not asked.

Mr. Ramesh Dheer: We were not asked, no. I'm also aware that the large number of communities we deal with were not asked.

I also want to say, as you pointed out a few minutes ago, that prior to making it a law, the perception given by the previous minister was that it was going to be so good. But when these proposed regulations came out, all 369 pages, it came as a bombshell, believe me.

One more thing before I stop. With all due respect to the government bureaucrats, I personally think, and our association feels the same way, that a non-governmental consultative body should be chosen or appointed or whatever so that they can advise. The selection criteria should be based on the practical aspects of Canadian markets. It should be based on the realities, on how Canada has been built so far.

Thirty years ago, when I came to Canada, a friend of mine was showing me around Toronto. He said, “Ramesh, do you know who built Toronto, these big buildings? Italians.” And Italians at that time didn't speak much English. If these buildings were given some power by God to speak with human beings, they would speak Italian, not English, believe me.

The Chair: I hear them quite often when I'm walking around downtown.

Voices: Oh, oh!

Mr. Ramesh Dheer: I repeat, sir, a non-governmental and non-bureaucratic joint consultative committee should be appointed and should come out with relevant selection criteria that are good for Canada, based on, I repeat, the realities of Canada.

Thanks.

The Chair: Ramesh, thank you for that, but I'd like to tell you that this is the purpose of politicians and the committee. The purpose of having public meetings and hearing from the very experts I believe you to be is essentially to find out whether or not this thing is workable.

Welcome back, Lynne. I'll give you an opportunity to ask questions before we go to our next witnesses.

Mark.

Mr. Mark Assad (Gatineau, Lib.): Very briefly, I think you've confirmed what we've been hearing from the point of view of the grid and the passing mark, especially around the fact that there was no consultation and all the rest of it. It's been very informative.

I'd like to direct a question to the Canadian Manufacturers and Exporters. There's a point I've brought up in the past...and I've even had the occasion to go before CSIS to ask them a few questions. I didn't get many answers, let me tell you. I'm aware that a lot of countries send students to this country, and I've often felt that the more students we get in this country, when they go back to their respective countries, the more they'll think of Canadian products, Canadian methods, and Canadian know-how or services. However, I find that as the years go by we seem to be losing students from other countries who come to this country.

We've always maintained that Canada is a country that depends heavily—and I don't think that's exaggerated—on exports. Here's a way whereby, in time, if we were to admit more students and promote more students to come to this country, we would benefit down the road. Can you tell me why we can't get this message through?

À (1020)

Mr. Mark Boudreau: One thing is that, as you know, the education game has become very competitive. The last Team Canada trade mission that I'm familiar with, the one that went to China, included about 30 or 40 educational institutions looking for foreign students and cooperation deals between universities and community colleges, etc. Right around the globe, all these academic institutions are vying for those foreign students today. It's a very competitive game out there.

So you have to look at the whole thing, ranging from tuition fees to how long it takes to get your visa to come. You have to be in that game today.

The Chair: It would be safe to say also, Mark, that obviously CSIS is not the marketing agency for Immigration Canada. We may change them to become that hopefully.

Lynne.

Ms. Lynne Yelich (Blackstrap, Canadian Alliance): I missed most of the presentations, but I found it interesting how negative you were toward the selection. It didn't sound as if there was anything good about it. If we worked on adaptability, where could we make improvements there? If there are any changes, it has to be pretty well on adaptability, I think. So where could we focus that could help make this grid a little more in line with what you would like to see?

I gather the marks--I missed that--are too high. Did you like the old grid better with the selection of careers? I almost wonder whether there should be something that every year should be reviewed.

You talked about times changing Canadians. If you went back it was Italians at one time who.... As to markets and Canada, change is ongoing. If this sets it in stone for 20 years, it might be too severe. It may be just right for right now. Who knows? Should it be something that should be reviewed--a selection grid that should be open to discussion almost every year and changed? Do you have some sort of suggestion there?

The Chair: Could I have an answer to that question? Ben or Nancy, Margot or Ramesh?

Mr. Benjamin Trister: Sure. I don't know whether you heard our view--it's also the CME's view--that adaptability should not be a core factor. And if you're going to have it as a supplemental factor, then you could look at a whole range of things. The government has considered a lot. At one point, believe it or not, they were going to give you adaptability points for having a computer in your house, thinking that somehow this made you more adaptable in the labour market.

Voices: Oh, oh!

The Chair: Let me put that down.

Mr. Benjamin Trister: I wouldn't propose that.

The chamber is also not a big fan of the informal job offer. We think that's just too open to fraud. We'd prefer to see that taken out, and the arranged employment factor might be moved up to 15. If you have a job, and you've proven that you're making the prevailing wage, and it's an indeterminate job offer, if you satisfy the test in the regulations, that should be worth a lot because you're coming to Canada already with a job.

We mentioned before the notion of giving points to somebody who has a connection to a remote part of Canada--I shouldn't say remote, pardon me. A part of Canada that gets less than its fair share of immigration is the right way to put it.

We're also concerned about adaptability in terms of giving points for somebody who has an educated spouse, because it's unfair in a sense to people who are not married or who are married to uneducated spouses. We don't know, really, how important it is for the spouse to have a post-secondary degree.

À (1025)

The Chair: Ben, we're starting to repeat some of the things....

Maybe you could answer the question. Should the point passing mark--once we get it all cleaned up and everything else--be reviewed on an annual basis? Should it be used as a way of opening up intake and outtake on an annual or biannual...?

Ms. Lynne Yelich: For five years.

The Chair: Yes. Please speak specifically to that question.

Mr. Benjamin Trister: Right. The intake system is the critical problem that's driving the pass mark up. If we accept that 65 should be the pass mark, as a witness suggested, then you're going to be inundated, and it'll take 10 years to come to Canada.

Our view is that, without specifying what kind of intake mechanism could be used--and we have some thoughts you could consider--essentially you shouldn't be doing one without the other. If you set the pass mark so high that adaptability has to be a core factor, you're going to disqualify good people, and you're not going to get the balance of immigrants the Canadian economy needs. You have to set the pass mark lower, but you can't do that in such a way as to make people stay in the queue for years and years.

That's why pools and streams will help you, in some respects, with that problem. I would urge the committee to study possible intake models. I know the previous minister was aware of this issue and was looking at it before she left her post. I think the chamber's view would be you have to match the solutions because otherwise the pass mark will be so high our needs won't be met.

Mr. Mark Boudreau: I think the adaptability factor came into....

The Chair: Could you respond not on that issue but on the question of an ongoing review of the pass mark?

Mr. Mark Boudreau: Yes, I would agree with that. But I would like to make a comment on the fact that this whole review came into effect because the immigrants who were coming in were not performing as economically well as past generations.

Certainly I think industry's aware, and I think the Canadian government has become more aware, that we have to do more here in working with them to make sure they succeed in Canada.

I think you're all aware of the fact that...how many times have you seen a cab driver...? When I talk to them and they say they're an engineer, I say, well what's wrong here? Where was the mismatch? Were you not told what the engineering qualifications were in Canada before you actually came here? An engineer in Canada can mean something different over there.

We have to do a much better job in the sense of making those connections. And that's where the adaptability factor comes in.

The Chair: One per organization.

Ramesh, you'll have to move it on.

Mr. Ramesh Dheer: On changing the pass mark grid, Joe, I think it should be reviewed, not yearly but probably every four or five years.

Second, I think it should not be left to government bureaucrats to change it arbitrarily. I think this kind of committee should be consulted before this is changed.

The Chair: Just before I say thank you, I'll add a couple of things.

With regard to the adaptability, I think it was the view of this committee to use it as a bonusing system, in actual fact, so if you had brothers and sisters--some of us believe we should allow brothers and sisters--or if you had a number of positive factors, it would allow that to be part of the equation.

We'll have to figure out whether or not it should be part of the core. I'll tell you right now, if you remove it as part of the core, that's 10 points. Then you're left with 90. If it is supposed to be only a bonusing system.... I think that's what we wanted it to be, that was the intent, to give bonusing, just like the suitability model under the present regulation was really a bonusing system.

We're going to have to figure out whether or not it should be part of the core but be seen as a bonus and not a negative. I think some of us said adaptability means that if you have people, if you have a number of good things going for you, it would be a way of pushing people over the top, if we fixed the grid and everything else.

I have a couple of questions related specifically to the chamber, and I know there are pretty extensive briefs from everybody. But I need to ask you the questions with regard to...because I didn't hear much on entrepreneurship. I think Ramesh talked a little about it. Usually big businesses start from small businesses, and we can attract some very good entrepreneurs from around the world.

There are two aspects that I think the business community have always been concerned about.

I'd like your comments with regard to what that net worth or the equation should be to attract that very person whom we want to be an entrepreneur in this country.

Second, with regard to small businesses, sometimes they're family businesses, and therefore there's a need to attract a family member who happens to be living outside of Canada but will help grow that business. I've been a little concerned that the present mechanism is going to be lost.

And third, with regard to this two and five years, I continue to be concerned--and I know it's in your brief--because this is a global economy, and we have to recognize that people may live in Canada and work outside of Canada. And that's good. I mean, we want good Canadian people to do a lot of things around the world and hopefully grow businesses.

I'm a little concerned. I know you commented that maintaining permanent residence means you essentially have to be physically here two out of five years, or else you could lose that status, which I think is a negative to attracting people.

I wonder if you could comment on the entrepreneur and business side of things, as well as on the small business and the two and five formula.

We'll start with Ben or Nancy.

À (1030)

Mr. Benjamin Trister: In our view, the proposed regulations for entrepreneurs will kill the federal entrepreneur immigration program, pure and simple. No one is going to want to use it. There are other ways of coming, and there are other countries to go to that have different standards. This is another example of the department setting its sights inordinately high. So it's fair to say we'd be much more comfortable with the existing standards than we are with any changes to those standards. The answer is, we'd like it to stay the way it is.

It's the same thing with the family trust, the family business program, or whatever you want to call it. If it's not really broken, why fix it? Really what we've seen recently is that the department's attitude against this program has shown in visa officers already applying different standards and failing applicants in ways that they never did before, by insisting basically that the person's prior employment history match up to the job that's being offered, which was not something that was required before.

On the residency test, on behalf of the chamber, I met with many members of Parliament during the discussions on Bill C-11, and nobody--nobody--regardless of the party, said it was a great thing to stop people from doing what they need to do abroad, for the very reasons that I believe Mr. Assad mentioned. If you go abroad and you have the connection to Canada, you'll facilitate trade.

So, obviously, we think there should be discretion. Right now, these officers have the discretion to give you a returning resident permit if they think your purpose is justifiable in the interests of Canada, or in the significant interests of your family or your own personal circumstances. They're taking that away under this regulation. We'd like to see that discretion put back in.

I believe maybe even you asked the question, Mr. Chair, of the department during the Bill C-11 hearings; you said something like, well, let me understand this, if you're going abroad to take care of a sick relative or if you're going abroad to study, you'll be allowed to do that under the new system. The officials said you would be, but these regulations do not allow that. So that's why it's in our brief. We wanted to call your attention to that.

The Chair: Mark.

Mr. Mark Boudreau: We'll simply concur.

The Chair: All three, yes?

Mr. Ramesh Dheer: I agree with my colleagues.

The Chair: Absolutely fantastic. We're all in agreement. Now, if we can convince the minister and the department, we'll celebrate.

Thank you all very much, not only on Bill C-11, but more importantly, on these regulations. If you have any further comments and want to bring them to our attention, your briefs are fairly comprehensive, but thank you for your input.

We're going to move quickly to our next witnesses, Senator Anne Cools and Roger Gallaway. We'll give them an opportunity to get to their chairs.

À (1035)

À (1040)

The Chair: Colleagues, it is my pleasure to be able to welcome Senator Anne Cools and our colleague Roger Gallaway, the member of Parliament from Sarnia-Lambton, to our committee.

I want to take this opportunity to congratulate and thank you both for the extensive amount of work you've done on the custody and access joint task force of the House and the Senate.

So welcome to the committee. We look forward to your comments.

I must admit, I don't know whether you have written briefs or are just going to talk to us.

Who wants to go first? Senator?

Hon. Senator Anne Cools (Ontario, Lib.): Colleagues, first of all, I'd like to say that it really is a pleasure to be with you. I see many on my own side in my own caucus meetings from time to time, and some from the other parties I see here and there in the halls. But I do not appear before Senate committees very often, so for me, it's a rare and wonderful and exciting opportunity.

As well, for a few moments I sat, as I was waiting to be called for our turn to speak before the committee, and I must say, I was very touched and deeply impressed with the thoroughness that this committee was demonstrating.

Mr. Fontana, I have not seen you in action as a chairman of a committee, but I must tell you that I would recommend you any time to chair anything, if I have an opportunity. This is Parliament, and it is very important that we listen with good ears, and both ears, and interact with members of the public who appear before us as witnesses. So I just want to say, I was very touched, and keep it up.

The Chair: We have a pretty talented group around this table. We know more about immigration than the minister and the department, I might say.

Senator Anne Cools: Well, if you want I will--

The Chair: I shouldn't say that about the minister. He will eventually get it.

Senator Anne Cools: The other thing I would like to say is that I know as a senator I have a certain precedence, but I also am of the opinion that Mr. Gallaway should go first, because Mr. Gallaway is a member of your chamber. In addition to that, Mr. Gallaway had the distinct opportunity to have been one of the co-chairs of the Senate-Commons Special Joint Committee on Child Custody and Access, and I'm sure you all know of the results and the enormous public support the recommendations of that committee have attracted.

I'm of the sincere opinion that Mr. Gallaway's work on that committee was indeed instrumental and exceptional. And since he's a member of your chamber, I will defer so that he may go ahead first.

The Chair: Roger.

Mr. Roger Gallaway (Sarnia--Lambton, Lib.): Thank you, Senator.

I want to start by saying the two of us are here today because we feel strongly about what has been published in the Canada Gazette with respect to regulations. We're here to address only two sections.

We are vehemently opposed to the inclusion in regulations under Bill C-11 that persons in default of court ordered spousal or child support payments would be ineligible to sponsor family members, unless they can demonstrate they have resolved the matter to the satisfaction of the province. Secondly, it would prevent persons convicted of a crime related to domestic abuse for which no pardon has been granted, or in the case of a foreign conviction where rehabilitation cannot be demonstrated, from sponsoring a member of the family class.

To start, I'd like to examine the general problem of default of sponsorship applications. On October 28, 1999, the then Minister of Immigration provided the department's view of the magnitude of sponsorship default. She responded to a question in the House concerning statements attributed to the Premier of Ontario, Mike Harris, who was alleging the majority of sponsors default on their sponsorship applications.

She stated:

The Harris government and others would prefer to look at failure rates than default rates. The facts are that in Toronto 86% of sponsorship applications are met, and across the country the rate of successful sponsorship is 90%. When I was in school if we got a mark of 86% or 90%, we got an A and that was pretty good.

Those are the words of the Minister of Immigration. Against this backdrop of an A, the 90% that she refers to as the success rate of sponsorship, we want to turn then to the first regulatory matter of persons in default of court ordered spousal or child support payments being ineligible to sponsor family members.

I would suggest to you there are at least two factors that require very serious consideration by this committee. First is the veracity of the provincial record keeping of support payments. Why would a federal department, such as immigration, rely on the records of ten provinces when there is much evidence that their methods of accounting and reporting vary greatly provincially? In brief, there is no national standard.

For example, in Ontario the Family Responsibility Office is, according to many reports, late, their records are incorrect, and above all, they're difficult, if not impossible, to access for written information.

There are many documented reports of gross inaccuracies. They have appeared in the press. Parliamentary committees have made observations concerning the problem. Yet as a federal law, that is Bill C-11, the proposal is to link the immigration sponsorship eligibility to very suspect provincial records. Are you making your support payments? For that reason alone, we suggest you as a committee say no.

As a subsection of this, reference to child support payments is not limited to the federal Divorce Act. Child support payment orders can be made under provincial statutes where the litigants are not married, or are married but have separated, or, under provincial laws, where paternity is the issue.

I recommend to the committee the speech made by the late Senator Eugene Forsey, almost 25 years ago exactly, ironically, on February 8, 1977. He talked on the subject of statutory instruments, regulations, and, most importantly, delegation by Parliament of its authority through the regulatory process, that is the creation of regulations.

À (1045)

His very pointed remarks start at page 379 of the Senate debates of February 8, 1977. He noted at page 381:

As we all know, Parliament nowadays in many matters can simply pass an act which is a sort of framework, and the details of the affair and the carrying out of the thing must be looked after by regulations and statutory instruments of some kind.

Senator Forsey, in that same speech, cautioned that parliamentarians must satisfy themselves that the regulations are, firstly, intra vires--that is within federal authority--and, more importantly, that there is in fact some federal legislation authorizing Parliament to do what they propose to do. He noted that the regulations should be “free of contradictions”.

I would point out to you this provision--that is, child support payments--is on the very face of it within federal powers, but federal legislation authorizing Parliament to act, that is Bill C-11 in this part, is full of contradictions. On the one hand, the regulation may be tied to the Divorce Act, which is clearly federal law, but it also can very clearly be tied to provincial child support and spousal support laws, of which there are ten at least, none of them the same, as well as provincial paternity laws of which there are at least ten, none of them uniform or the same. It's full of contradictions.

As well, the regulatory regime around these laws--I'm talking about the provincial support laws now and paternity laws--is the exclusive creation of ten provinces or the territories, which are completely beyond the reach of federal scrutiny or influence. I ask you! There are at least 20 different laws on child support, along with 20 different regulatory regimes, and by the act of delegation set out in Bill C-11 our delegation is now hitched to provincial regulations. We can't do that. It's unacceptable for two reasons.

First, there's no uniform national standard. It's opting into a patchwork, at best, of different provincial laws, none of them identical to each other or to the federal law. It delegates to federal bureaucrats, and this is even worse, the right to make decisions--that is, whether an individual can sponsor under Bill C-11--and it's based on rules, on regulations, and on records kept according to provincial regulations.

It's a slippery slope and contrary to the most basic rule here: that the delegate of an authority received from Parliament cannot, in turn, delegate to somebody else. What we are seeing here is subdelegation to provincial authorities. For this reason alone you should, in our opinion, reject this regulatory proposal.

It is indeed ironic that the federal immigration minister--the then federal minister--on October 28, 1999, rejected the assumption of the Premier of Ontario, Mike Harris, that the majority of sponsorships are in default, yet would step in and allow a regulatory regime that itself depends on provincial records and regulations. If you're at all interested in the supremacy of Parliament and the role of Parliament, you will unequivocally reject this.

Second, and more important, the immigration department, in proposing this regulatory provision, is selectively picking out one part of a court order or judgment and ignoring another, all of it pertaining to divorce or separation.

If the Immigration Act is to be an ancillary divorce or family law enforcement mechanism, then why not expand and be consistent? Expand the regulatory ambit to include sponsors who are in default of child access orders. Consider a divorce or a maintenance order under federal or provincial law whereby custody is awarded to X and Y is given access and required to pay $1,000 a month in child support. In the classic spat that ensues, X refuses access; Y refuses to pay. They're both in default. Y wants to sponsor his widowed mother, who lives in Europe; he's denied under this regime. X wants to sponsor her mother; she's not disqualified.

À (1050)

So if the Divorce Act or family law acts or paternity acts are to be used as criteria, under what authority does Parliament state this is all one court judgment? But this particular part about paying money is more important than the section about maintaining a relationship, access.

It's a dangerous principle, and I would say to you an unacceptable principle, when Parliament--we who are here--uses legislation to enforce one part of a court order--that is, by denying the right to sponsor--yet ignores another part of a court judgment. If we are truly concerned about the importance and sanctity of court orders, we will reject this regulation.

Senator.

Senator Anne Cools: Thank you very much.

I'd also like to say that there's a member of this committee who served on the joint committee as well. I acknowledge that and say thank you, too, for that.

I'd like to build a little bit on what my colleague, Mr. Gallaway, has said, and then to develop some of what he has said a little bit more extensively.

I think we're asking the committee here to adopt the stance, to adopt the posture, that the Immigration Act is enabling legislation around the question of foreign nationals seeking entry into Canada, and it should not be tortured, or moulded, or sculpted into another legal instrument that has to do with regulating marriages and all the incidents, ancillary and corollary elements, of marriage. If it were to do that, it would be certainly proceeding by stealth, because the intention of Parliament is supposed to be crystal clear in the legislation that it passes, and it is supposed to do what it says it's supposed to do, and it is supposed to say what it means and mean what it says. That is my first point.

The second point I would like to make--again building on Mr. Gallaway's presentation--is that regulations have a unique constitutional purpose and are part of a constitutional order. If you were to look, for example, to the Statutory Instruments Act, you would see that in section 2 of the Statutory Instruments Act it tells you what regulations are and what regulations do.

I would like to quote from section 2, where it says:

2.(1) In this Act,

“prescribed” means prescribed by regulations made pursuant to this Act;

“regulation” means a statutory instrument

(a) made in the exercise of a legislative power conferred by or under an Act of Parliament,

I would submit to colleagues around this table that these regulations, as proposed--and let me be crystal clear--these proposed regulations to which we're speaking, these two narrow ones, are not made in the exercise of the legislative power of the Immigration Act. In point of fact, they're extraneous add-ons included in there for reasons that are unknown to me and, so far, unclear and unknown to Parliament. In point of fact, absolutely no evidence has been adduced or taken before us as to why those two add-ons suddenly appear in the regulations.

Now, if we understand very clearly that regulations cannot do what the act doesn't ask the regulations to do, then we understand that what we have here is a form of a corruption in the use of a regulatory framework to achieve a policy outcome and the decision that someone, somewhere, wants and doesn't have the nerve, strength, moral courage, or transparency to have put it into the legislation so that all of us could pronounce on the legislation.

If I can refer you back again to the same documents that...I almost said Senator Gallaway--

Mr. Roger Gallaway: Oh, no chance of that, I can tell you that; absolutely none whatsoever. Of that, I am certain.

Senator Anne Cools: --that Mr. Gallaway referred to, because it was an extensive debate in those days on the use of statutory instruments and regulations, because the term is “delegated legislation”. I'd like to quote Senator Lang, who, as you know, is a very well-known senator of Lang, Michener. He said at page 509 on March 16 of the same year, 1977:

...the exercise of bureaucratic authority over and beyond the powers granted by Parliament under a particular piece of legislation.

À (1055)

He goes on to condemn the fact that the regulations cannot be used to exercise an authority that the legislation itself either did not grant by enactment or did not intend. That is my first point.

Second, again, it has to speak to the question of selective elements of what I would call marital breakdown or separation breakdown, because many of these are not necessarily involved in marriages; it may be provincial legislation. They have said they will impair or impede the ability of certain individuals to sponsor family members by relying on their so-called lack of compliance with court orders; that they have selected one set of court orders from the same dyadic transaction in a relationship and excluded the other.

The one they have selected is obviously the question of child support, and the one they have excluded is the phenomenon of child access. I would say to you that supports lawlessness and will eventually be used as a tool, by one or another in a relationship, to be able to just move the child from one country to the other.

So I urge you to view this as an exercise of lawlessness. If the drawers of these regulations had said, “We are going to use non-compliance or disobedience to all court orders”, that would have been a different premise. But here they have chosen, quite frankly, the money-based ones. We all know that inside these money-based choices it is another way of saying “men”. So the regulations, as written here, have a very thinly veiled inherent assault on men as fathers, and I submit that to you.

Perhaps I can move from there. I had another quotation from Senator Forsey about the question of regulations being beyond the powers of the regulating authority. Before I continue, maybe I should make that point, to give you some subject matter to go on.

In an article called “Delegated Legislation in Canada” is a list that says clearly the purposes and the powers that regulations should not grant. I want you to know that this business of the use of regulations has been bothering Parliament and parliamentarians, bedeviling us, for quite some time. That is one of the reasons why I was very excited when I heard that this committee was taking up the study of this particular set of regulations.

Á (1100)

The Chair: Eugene Forsey showed up in one of my dreams and said, “You shall do this”.

Senator Anne Cools: I would only say to you to continue to dream, because of such dreams are a good Parliament and good laws made.

Powers should not be granted within regulations to do many things. For example, one of them is that you could not amend another act by regulations, but there are two I would like to specifically quote. One is to make regulations that may trespass unduly on personal rights and liberties. The second one is to make regulations involving matters of policy or principle.

The first I think is pretty clear and needs very little explanation from me. But the fact of the matter is that these regulations, as written, cannot by themselves be used to impair the rights of Canadian citizens as citizens. The phenomenon of the rights of a citizen cannot be impaired, amended, by a regulation like that. What we're saying here is that certain citizens of Canada may be barred from sponsoring their age-old grandmother from Yugoslavia, or wherever, and that is not something that regulations can do. That is not a regulatory fact. Regulatory frameworks are supposed to describe process and rules and so on, and not to arrive at outcomes.

The next important question is, to make regulations important, they are not allowed to make regulations involving matters of policy or principle. I would submit to you, honourable colleagues, that these are questions of policies, not only questions of policies that are contained in these regulations, but questions of policies that have not been debated and discussed while the bill was before us. I put that out to you.

I'm going to run very quickly, because I want to leave lots of time for questions. I would like to come to you about the whole question of domestic violence and domestic abuse. Here they do not use the word “violence”. They do not use “crimes”; they talk about “abuse”. I would submit to you the term, as written in the regulations here, has no legal meaning, has not been interpreted, and has very wide ranging sets of possibilities that can be attributed to it.

Most of all, honourable colleagues, on this front, I want to submit to you that this policy of zero tolerance has created more mischief in law, in legislation, and in public policy than any of us can dream. I would like to appeal to you members here, to ask for fairness, balance, and equilibrium in this law in respect of family relationships. I say this to you because I fully understand that the legal and social condition around domestic violence is one that is a heart of darkness. This heart of darkness is rendered more difficult because of certain officials' disinclination to accept the obvious fact that violence and aggression are human problems, not gender problems.

I ask you to examine the proposition that these evils are afflictions of men and women jointly, and not purely afflictions of men. These are human problems; they are not gender problems. All the data show that men and women are equally violent to each other, and to children. I would ask you to examine the proposition that men and women are equally capable of vice and equally capable of virtue, and virtue is a human characteristic, not a gender one.

In other words, honourable colleagues, I am saying to you that the propositions here contained in these regulations are written, are based--and I've read some of the background material as to how they made their way into the regulations--on what I would consider the very flawed, and now morally and intellectually bankrupt, concept of the patriarchy, and that human relations are structured around domination and control, in the patriarchal sense.

I would submit to honourable members here that violence, and any other wrong that goes on in a relationship, is more a pathology of intimacy rather than a problem of the patriarchy.

Á (1105)

I just submit that to you. I'm saying that those are policy statements and they have no reason to be here in regulations, especially with no debate.

I'd like to read to you a particular quotation from a particular judge on this whole question of zero tolerance on domestic violence, because what we have now is a situation where she hits him, his nose is bleeding, the police walk in, and he gets arrested. This is common and rampant in our community, and it is something that has to be dealt with and it has to be talked about.

I refer to you a particular case, which was Regina v. Ghanem , where she falsely accused him of assaulting her. This was used as a strategy in a divorce that was about to happen. He was acquitted, of course, after a very lengthy and unpleasant experience, and a lot of pain, no doubt. The judge, on acquitting him, said the following words. I quote this and I want this to be on the record. His name was Judge Fraser. The case was Regina v. Ghanem, 1998, a very recent case. He said the following:

I find the evidence of the complainant and her mother to be contradictory, confusing, contrary, conflicting, irreconcilable and quite frankly, false.

By “complainant” he meant the wife.

About the zero tolerance policy, he continued. This is a quote from Judge Fraser and it's found at paragraph 21 of his judgment:

I want to make two further comments because one is curious as to how a man could be falsely accused in these circumstances right up to and including a trial. The reasons are quite clear to me and disturbing. First, the police apparently have a policy of zero tolerance in domestic assault cases. Any zero tolerance policy is dangerous. It is especially dangerous when it is not properly applied.

I'd like to end right there so we can have questions. At the end of the day, the final matter is that these are policy questions that themselves merit discussion and decision, and they should not be slid, in an unseemly way, into a group of regulations.

Thank you, honourable members.

Á (1110)

The Chair: Well, thank you both for those. I must admit this is the first time we've heard any witnesses in terms of these particular ones, even though we've had some people talk a little bit about gender and racial analysis of our regulations. I want to thank you for bringing this to our attention.

Some of us were wondering where the divine intervention came from for this committee to do something rather unique, which I think you've indicated was to look at regulations. I guess some things never change, even 25 years thereafter. Parliamentarians are still very suspicious or very uncomfortable with regulations doing what perhaps legislation should do. But perhaps Eugene Forsey lives on.

We'll start. Madeleine.

Ms. Madeleine Dalphond-Guiral: Merci, monsieur le président.

The Chair: And thank you for your hard work on that committee too.

Senator Anne Cools: You worked very hard. Just let me get my translation plugged in because my French...I'm still working on it, you know, but it's--

Ms. Madeleine Dalphond-Guiral: Okay.

Senator Anne Cools: I am. Every week I have my lessons, but I'm not ready yet to try to put something to you in French.

[Translation]

Ms. Madeleine Dalphond-Guiral: Since we are being so free with compliments, I would like to say to the committee that Senator Cools continues to distinguish herself by the enthusiasm and energy with which she defends her ideas, and that I find this is a great comfort in connection with the mental health of the Senate.

I think that this is a first, since the regulations have to be put before the committee. This was included in the Immigration Act and, of all the sections in that act, it is perhaps the most important because we are realizing that nobody is happy with the regulations.

As Joe said, you have raised some issues that were not followed up. So first, I would like to know if Roger's text will be available. I saw that he had some pages which he was reading in a very serious manner. It would be interesting to have it to look at.

Since much has been said about sponsorship, the regulations prohibit anyone on social assistance from acting as a sponsor. I am very much interested in hearing what both of you have to say about the importance accorded in the regulations to the economic aspect. It is well known that the support a family can provide is not necessarily monetary in nature. One can be very rich and yet completely unable to provide one's relatives with support, or uninterested in doing so. I would like your thoughts on this.

[English]

The Chair: Thank you.

Roger.

Mr. Roger Gallaway: On this concept--and we haven't addressed the central issue or proposed regulation with respect to people on social assistance--you raise a valid point, because if we are to talk about economic capability, if I could say that, your wherewithal, your ability to support an individual member of a family class coming into the country, then I think there would be, heaven forbid, even more regulation.

What about a person who owes Revenue Canada $500,000? I can't find them in the regulatory regime. What about a person who's not on social assistance but is what we generally, in the popular genre, call “the working poor”? People who are “working poor” are often equivalent to people on social assistance. In fact, I heard a brief discussion yesterday wherein a person who, ironically--and this is not a criticism--in the province of Quebec is collecting about $11,000 in social assistance, general welfare, compared to a person who has a working income of only $13,000...the person on social assistance, when you factor in a lot of other benefits that flow, is actually much better off.

The Chair: I think that's the case in Ontario too.

Mr. Roger Gallaway: So what does this all mean? It means that the proposals are what I would call void for uncertainty, because there are no discernable principles emanating from them. I think that's all I need to say about that.

Á (1115)

Senator Anne Cools: I came here to address these two narrow points, but I think you're raising something very important.

It's a little bit bothersome to me. I'm not sure I have a solution, but, for example, I'm looking here at the regulation where it says “provide that persons who are in receipt of social assistance, other than for reason of disability”. Well, first of all, is that person who is on social assistance going to be on social assistance forever, or are they on social assistance for temporary reasons?

In other words, an individual--and these are active and real examples--is trying to sponsor their aged relative, father or mother, from the Ukraine or somewhere, and midstream of all of this, they have a bit of misfortune and lose their job. They're out in the workforce actively looking to get a job back. Let's say, for example, the application was moving forward and they've lost their job for a few months. Does that mean this kicks in?

That is why I'm so distrustful of so many regulations. If the intent of the regulation is to avoid bringing people into this country who are coming here, for example, with the intention of joining the welfare rolls, that is a different matter. But I would tell you, if that is the intention, it is not being addressed by the way this is currently structured, because this again is achieving a particular purpose.

I'm not too sure that I'm being all that helpful to you, but it is something this committee should wrap its mind around, because as far as I'm concerned, the essential element of family reunification has always been a factor in immigration policies here, especially with attention to those family members who may have been left alone in the old country and need to spend the latter years of their life with their loved ones here.

Also, I have to tell you a little secret. I don't think our coffers would really burst, quite frankly, if somebody who was on assistance brought their aging 95-year-old mother to Canada to spend her last two years. I don't think our welfare coffers would burst or break.

As I said to you, you've raised a very large issue, and that issue alone could do with canvassing. But you're proving my point, in a way, in that these are large policy issues that need to be canvassed.

The Chair: A number of our witnesses in fact have spoken about the discriminatory aspects of people on social assistance not being able to sponsor someone, and obviously this committee is taking that to heart, and we're thinking--

Senator Anne Cools: But there are some problems.

The Chair: Well, of course, there are some problems, and I must tell you some of us are a little...because, as you know, the provinces have something to say about what our immigration policies should be. And there are a lot of myths out there that a lot of immigrants are on social assistance, and it's not been proven. A lot of immigrants are supposed to...as you said, Roger, they indicated there's default in sponsorship, yet the fact is that there's a 90% success rate.

Yvon, if I could....

Senator Anne Cools: Okay, but we want to get back to our point.

Á (1120)

The Chair: You will in a moment.

Go ahead Yvon.

[Translation]

Mr. Yvon Charbonneau: I thank our two parliamentary colleagues for having drawn our attention even more closely to certain aspect of certain issues. Other witnesses have touched on these issues, but you have done so in a way which I would describe as more technical and articulate, and I for one will be rereading your testimony with great attention because, in making your points, you referred to legislation with which I am not as familiar as you.

My question is for Senator Cools in particular. You cited Mr. Forsey and other sources and told us to be careful, that a regulation must not exceed the scope of the act, that it must not run counter to the spirit of that act, that a regulation must not incorporate principles or policies which have not been debated or which should, in any event, be debated elsewhere.

In your view, does this mean that these regulations could be challenged constitutionally? If certain aspects of these regulations which you have raised, certain contradictions to which you have drawn attention, were left in the regulations, could that, in your legal experience, give rise to a court challenge?

[English]

Senator Anne Cools: Yes, and we also...we can share, Chairman. Last night, when we did some work on this we dug out Senator Forsey's work, and we'd be happy to give it to you, because I would submit to you it's an arsenal of information.

The Chair: Okay. I'm sure there would be some interesting bedtime reading.

Mr. Roger Gallaway: We're getting into something historical in the law in the sense of where the regulatory authority evolved from. Of course, it evolved from our British tradition, British law and the British Parliament. In 1688--I'm starting to talk like a historian now--there was a bill of rights. It wasn't the John Diefenbaker bill of rights or the American Bill of Rights, it was the British bill of rights that started all this stuff going.

There's a lot of marvellous literature around this about the explosion of legislation. In the 1950s the Ontario legislature passed more regulatory law than the British Parliament had in all of its hundreds of years of existence.

So when I hear the comments about 379 pages of regulation around this law, you have to be very nervous about all of this stuff.

The question Mr. Charbonneau raised had to do with the constitutionality of this. I would say to you that the word “constitution”, in many respects, has a lot of connotative and effective meanings. The constitutionality can fall into many areas, that is, whether it is intra vires or ultra vires of the Parliament of Canada. Those are the old arguments.

But there are other old arguments about the constitutionality that fall within the same ambit. It was the kinds of debates that took place at the time of the reformation of the British Parliament to the end of the 1700s, around the authority of Parliament to in fact give authority to somebody else and whether in doing so they had actually debated and contemplated and foreseen the kinds of mischief that could be played by bureaucrats in the interpretation of regulations.

When one of these regulations makes reference to domestic abuse, in law there is no such beast. It doesn't exist. Yet in regulation you're going to allow bureaucrats to interpret what is domestic abuse.

If Parliament is concerned about Canadians or permanent residents sponsoring people and these sponsors having criminal records, that's one thing. But domestic abuse means many things. For example, in Ontario there's Bill 117. There are things in that law that are called domestic abuse. It's not criminal law. But you could have a bureaucrat say, this individual was convicted under Bill 117. It's a lot of nonsense, but it's not criminal law and it doesn't come under the Criminal Code. Somebody could be convicted of a crime related to domestic abuse under Bill 117 and then be denied sponsorship. That is ultra vires of the Parliament of Canada.

Á (1125)

The Chair: Yvon, I have a supplemental to yours.

Roger, I accept your argument. But to get very specific, regulation 130(1)(f) does not use the word “abuse” anywhere. In fact, what you might be reading, if you look at the economic impact analysis of these regulations, is that they use the phrase “domestic abuse” in that document. But the regulation itself says:

(f) in the five years preceding the sponsorship application, has not been convicted of a sexual offence or an offence against the person under the Criminal Code in relation to the dependant of the sponsor

So it doesn't use the word “abuse”. They do use it in background information, but nowhere do they use “domestic abuse” in the specific regulation, even though your point is well taken. Maybe you can address that.

The other thing is that when it talks about being gender neutral to a certain extent.... There's another point here as it relates to sponsorship, not domestic abuse, but in terms of child support. This is the basis of your argument.

Senator Anne Cools: Can we have a copy of that?

The Chair: Well, these are the regs, and I will give you copies, of course.

Regulation 130(1)(h) really talks to your whole thing of child support and payments and so on. I agree with your point about child access being just as important as the financial child payments part. Regulation 130(1)(h)(ii) says “any support payment obligations ordered by a Canadian court.” Roger, I'm just wondering about the fact that it doesn't say “provincial court” and it doesn't say “a provincial support order”. It says “any support payment obligations ordered by a Canadian court”. I wonder whether or not that is helpful or doesn't change--

Mr. Roger Gallaway: We're still talking about a patchwork of ten provinces. They are all Canadian courts making orders under different laws. None of the laws are uniform. All the regulations are different. For example, a person could be found in default of payment in Ontario, because to turn off a court order in Ontario--in other words, an obligation to pay--you must return to court, whereas in Alberta, when there's agreement, you could sign a form saying you no longer require this money. You just file it and that's the end of it. So for a person in Ontario, it often takes a year to get into court to get it changed, whereas in Alberta you can have it changed the same day.

The Chair: What then are you suggesting as a solution? Do you want to get rid of that whole notion of support payments?

Roger Gallaway: Absolutely.

Senator Anne Cools: Yes. I think any clauses in these regulations that supposedly govern the civil relations between couples, particularly in divorce, should be out. They shouldn't be in there at all, because they are not offences or crimes. Before any such thing could be in these regulations, we would have had to have a debate in Parliament where we decided that there were offences of that nature. So this should be out.

The Chair: The information provided by the provinces may not be timely and may not be accurate, and it's different.

Á (1130)

Mr. Roger Gallaway: There's no national standard.

Senator Anne Cools: I'll give an example. I had a father come before me. He was always in default of support payments because of the way they were compiling it and the way it was done, but he's never missed a support payment yet. Because of how he was paid, he was always being paid two days after, so his cheque would arrive two days later. If you were to look at what they were saying, he was always in default, when in point of fact this man--actually, he was an Italian labourer--had never missed a support payment yet.

Without our Parliament examining what is going on in those maintenance support offices, we simply cannot take them at their word. There's a problem there.

The Chair: The point is well taken.

Now, with regard to that abuse, that term--

Senator Anne Cools: You say it's a different problem.

Mr. Roger Gallaway: Let me refer to the Canada Gazette part 1, December 15, 2001:

^ç	For sponsorship enforcement, the Regulations:

--prevent persons convicted of a crime related to domestic abuse....

That's where I'm taking it from.

The Chair: It's in the mens rea, you're right, but the actual regulation itself, which is regulation 130--

Mr. Roger Gallaway: Let me respond to that in this way. Under Bill C-11 in subclause 13(1), a Canadian citizen, subject to the regulations, can sponsor a foreign national who is a member of the family class. If you then look at paragraph 14(2)(d), the regulations may provide for any matter related to conditions that may be imposed on permanent residents and foreign nationals.

I'm saying to you that if a person is convicted of a particular crime related to an intimate relationship, their citizenship rights are diminished. What about a person who's convicted of a barroom brawl? How is that different?

Senator Anne Cools: So a person convicted of murder in a barroom brawl, or some very serious problem, doesn't have limitations placed on them on sponsorship. The real question we have to ask here is why has this species of human relationship been selected for this particular treatment?

In other words, there are hundreds of wrongs that could be done, so it's not as though they're saying that persons who have acquired criminal records in the past five years are barred from sponsoring. They wouldn't dare do that because they know the wrath of the world would come down upon them. However, because it involves man-woman relationships, they feel they can put this into the regulations.

So why is this species of creature being exalted over everything else? That's the problem I have with it. It's part again of this so-called zero tolerance, plus--

The Chair: I think you're making some very good points, but you are taking only one aspect of the regulation in isolation. If you read the whole of section 130, which you now have before you--you just said if someone's been convicted--if someone is in a penitentiary, jail, prison or reformatory, they obviously can't sponsor anyone either.

Mr. Roger Gallaway: There are lots of people on the streets who have been convicted of crimes.

Senator Anne Cools: Let's give you an example. I could see this working if we were here speaking about people entering the country. I could see us having a regulation that if a person entering this country had these conditions we would not receive them into Canada as immigrants.

But this is about people who are already here who are going to sponsor. They are permanent residents or Canadian citizens. I'm saying there's nothing you can do to limit the rights of a citizen of Canada--even one who may have had a conviction--purely by regulation. That is the essential point.

In addition to that, they have chosen here just two kinds of offences. What about the rest? It's very complex. What you're showing to me here is that this matter is in the regulations and it hasn't been canvassed.

Á (1135)

The Chair: Can I just ask you about your solutions on the whole question of abuse? It's not abuse in the regulations; it may very well be in the background paper. I think you've made some arguments on this.

You don't have to do that right now because this committee is going to take two or three weeks to do it. I'd very much like to have your input and solutions on the wording, or whatever, as to how to deal with the whole issue of domestic abuse in a more focused way.

Senator Anne Cools: You're absolutely right. In this particular reading, 130(f), it is articulated as a conviction under the Criminal Code in the document published in the Canada Gazette.

The Chair: Yes. It uses the word--

Senator Anne Cools: But it talks of a conviction related to domestic abuse. We can get back to you a bit more thoroughly here.

You still have a problem, and we can address it even further, but how does the fact that a person has had...? Let's be quite frank, colleagues; a conviction on a sexual offence in today's community is not what it used to be. There was a time when you knew very clearly what rape meant and the violations involved, but we are now in a situation where some person can pinch somebody on their breasts or on their rear and that's sexual assault; that becomes a sexual offence. The whole phenomenon of sexual offences has grown like Topsy--you know the expression “growing like Topsy”?

In any event, I still think we have to answer the essential question as to why one species of offence is in there. In other words, if they had been convicted of robbing a bank, or even, quite frankly, committing a murder...no, it says “an offence against a person”. But it's not clear. We have to look at it some more, obviously.

The Chair: Listen, we're getting an awful lot of feedback on these regulations, and I'm happy this committee has decided to take this thing on. But give it some more thought--

Senator Anne Cools: We shall.

The Chair: --based on what you have. That book, Anne, is available to you and to Roger.

Senator Anne Cools: Yes, thank you.

The Chair: We'll get it to you and look forward to your further comments, as well as possible wording and solutions on both of those points.

Senator Anne Cools: Sure. We'll come back.

The Chair: I know your solution with regard to support payments is pretty clear--

Senator Anne Cools: That's clear-cut.

The Chair: --just to take it out of there. Is that what you're suggesting?

Senator Anne Cools: Yes, you're right.

The Chair: Okay, thank you so much.

Senator Anne Cools: Thank you, and I just want to say again, what is going on in this committee is one of the most exciting things that is going on anywhere in parliamentary committees.

The Chair: Thank you.

The meeting is adjourned until next Tuesday.