CIMM Committee Report

        Under the Immigration and Refugee Protection Act (IRPA), the Minister may designate a country as a state to which refugee claimants may be returned to make their claim for protection. The provision for naming a so-called "safe third country" has existed in Canadian law since 1989 but has never been used. It is now proposed that the United States be given this designation.

        Denying access to our refugee determination system and returning a claimant to another state requires, in practice, the negotiation of a bilateral agreement with the designated country. On 30 August 2002, a draft safe third country agreement (the Agreement) was signed with the United States. Both countries undertook to submit this Agreement to their respective governments, and the Canadian Cabinet granted its approval on 8 October 2002. The U.S. Secretary of State has not yet formally approved the Agreement but is anticipated to do so before Deputy Prime Minister John Manley meets with Governor Ridge on 5 December 2002. The Americans will then publish their implementing regulations.

        The Canadian safe third country regulations were pre-published on 26 October 2002, with a public comment period of 30 days. The purpose of pre-publishing the regulations is to allow interested members of the public a period of time to study them and to submit written comments to the department before they are finalized and come into force. The Committee understands that limiting the time for public input is administratively necessary. However, as the Committee with the mandate to oversee Citizenship and Immigration Canada (CIC), it is within our purview to review and comment on all departmental matters, at our discretion. Unfortunately, we were not able to meet the deadline given to the public, but as we were informed that implementation will not occur until next spring, we expect that our comments and recommendations will be taken into account before the Agreement and regulations come into force. The Committee recently studied the Immigration and Refugee Protection Regulations and our report of March 2002, Building a Nation, resulted in significant improvements to the pre-published regulations. It is hoped that this report will be similarly received.

        Despite conducting our study in a very limited time period, the Committee is satisfied that we have addressed the major issues. In addition to an appearance from the Minister and CIC officials, we heard oral presentations from 20 individuals representing nine organizations, and received numerous written briefs. The Committee had an opportunity to identify the common issues of concern and now makes the following comments and recommendations.

A.     BACKGROUND

        Article 33(1) of the United Nations Convention and Protocol Relating to the Status of Refugees (the Refugee Convention) provides:

        Similarly, Article 3(1) of the United Nations Convention Against Torture (the CAT), ratified by both Canada and the United States, provides:

        These international commitments form part of the backdrop against which the Agreement must be judged. In returning asylum seekers we must ensure that the Refugee Convention and the CAT are respected. Indeed, this has been specifically delineated in section 102 of the IRPA, which lists the factors to be considered when designating a safe third country. The Committee notes that Article 3 of the Agreement provides that Canada and the U.S. will not return anyone referred back under the Agreement to another country until an adjudication of their refugee claim has been made.

        The Committee was informed that the safe third country concept has its origins in Europe where it evolved out of a desire to prevent "asylum shopping." It was alleged that some people were making asylum claims in different European countries, either simultaneously or consecutively, in an effort to find the most personally advantageous situation. It is the government’s view that selecting a new home based on personal preferences or for economic reasons falls within the domain of immigration and does not properly belong in the asylum context. In essence, refugees should be required to seek asylum in the first safe country they enter. Many of our witnesses, on the other hand, argued that claimants should be permitted to choose where they are most likely to find a safe haven that allows them to become economically and socially re-established.

        The United Nations High Commissioner for Refugees (UNHCR) has established guidelines for implementing the safe third country concept and does not, in principle, oppose such accords. The UNHCR recognizes that states are entitled to enter into agreements to share responsibility for determining asylum requests, provided it is explicit that return can be effected only when the claimant will be able to access fair asylum procedures in the receiving country. The Regulatory Impact Analysis Statement (RIAS) accompanying the proposed regulations indicates that the UNHCR supports the objectives of the Agreement and considers that both Canada and the U.S. meet their international obligations. However, when the UNHCR representatives appeared before the Committee, they felt it necessary to qualify this statement by indicating that there are portions of the Agreement that could jeopardize access to refugee protection, contrary to international norms. As discussed below, this was a cause of concern for the Committee.

B.     STATISTICS

        The Committee was presented with various statistics regarding the number of claims the Agreement is expected to address. Figures provided by CIC indicate that from 1995 to 2001, approximately one-third of all refugee claims in Canada (31% to 37% annually) were made by claimants known to have arrived from or through the United States. Additional people making inland claims may have come via the U.S. but are not captured in this data, as their route of entry could not be confirmed. Of those claiming at a port of entry, where verification of transit countries may be more easily undertaken, 60% to 70% come from or through the United States on their way to Canada. In 2001, 13,497 people known to have come from or through the U.S. made refugee claims, and 95% of these applications were initiated at land border ports of entry. While no one could provide data regarding the flow of refugee claimants from Canada to the United States, it appears likely that they would number no more than a few hundred per year.

C.     PAST STUDIES

        An attempt at an agreement between Canada and the U.S. was made in the mid-1990s. A preliminary draft agreement was concluded in November 1995 and released to the public. The Immigration Committee held hearings in March 1996 and tabled a report in May of that year.¹ While the Committee felt that a safe third country agreement was not wrong in principle and that the underlying premises of the draft were sound, it made the following recommendations:

        The regulations begin by stating that the United States is a designated country for the purposes of section 101(1)(e) of the IRPA, which provides that a claim is ineligible to be referred to the Immigration and Refugee Board (IRB) if "the claimant came directly or indirectly to Canada from a country designated by the regulations …." The remaining regulations are devoted to setting out exceptions to the safe third country rule and outlining procedures for suspending or terminating the Agreement.

        To begin with, the provisions will only apply at land ports of entry. The regulations specify that the Agreement will not apply at:

        As well, claimants will not be returned to the U.S. if they establish that they have a family member in Canada who is:

        Clause 2 of the proposed regulations defines "family member" in respect of a claimant as their spouse or common-law partner, their legal guardian, and any of the following: their child, father, mother, brother, sister, grandfather, grandmother, uncle, aunt, nephew or niece.

        Unaccompanied minors are also exempted and the regulations provide details in this respect. If the minor is under 18 years of age, is not accompanied by an adult, has no spouse or common-law partner, and has no parent or legal guardian in Canada or the United States, access to Canada’s refugee protection system will be permitted.

        The Agreement will also not apply to people with a valid Canadian visa or those who do not require a visa to enter Canada but who would need a visa to enter the U.S.

        Article 6 of the Agreement provides that either country may, at its own discretion, examine any refugee claim where it determines it is in the public interest to do so. Under this Article, proposed section 159.6 indicates return to the U.S. will not occur if the claimant:

(a)     is charged or has been convicted of an offence in the U.S. that is punishable by the
         death penalty;

(b)    is charged or has been convicted of an offence in any other country that is punishable
         by the death penalty in that country; or

(c)    is a national of a country for which the Minister has imposed a stay on removal orders.

        Article 10 of the Agreement provides for the suspension or termination of the Agreement, and the proposed regulations set out the notification process that would be required. The Agreement can be terminated on 6 months notice, or suspended for up to 3 months upon written notice to the other party.

        Officials from Citizenship and Immigration Canada informed the Committee that the purpose of the Agreement is to reduce the number of refugee claims being referred to the IRB, in particular the large number of claims from people who are granted visitor visas to enter the United States and who then proceed to the Canadian border to initiate a refugee claim. The Committee hopes that any financial savings realized from the Agreement’s impact on inland claims will be used to enhance our overseas humanitarian resettlement program.

        The Minister and departmental officials stated that the implementation of the Agreement is projected to reduce the pressures being faced by the IRB, but that it will not adversely affect the situation of asylum seekers, who will be guaranteed access to either the Canadian or the American refugee adjudication system. Representatives of the non-governmental organizations (NGOs) who appeared as witnesses (who oppose the safe third country concept in principle) and the UNHCR (which does not oppose such agreements) did not accept the department’s assurances. The question the Committee had to grapple with was whether the concerns expressed by these witnesses were significant and, if so, whether they could be addressed by changes to the regulations or whether the Agreement itself was defective.

        To some extent, the Committee does not have the full picture. In Canada, procedural details are still to be finalized. In the United States, because the Secretary of State has not yet signed the Agreement, the American regulations have not been published. Publication of the U.S. regulations may help to clarify some issues addressed by this report.

        On balance, the Committee supports the Agreement. However, we do have concerns about some aspects of the proposed regulations. Before implementation, the Committee trusts that the department will address the various matters outlined below.

        Many of the witnesses questioned the basic premise that the United States is a "safe" country for all asylum seekers. Witnesses from various NGOs and the UNHCR expressed concerns about certain U.S. practices. Specifically brought to the fore were detention procedures, the expedited removal process, the one-year time limit to file a claim in the U.S., and differences in the interpretation of the refugee definition in American jurisprudence. A memorandum by Professor David A. Martin of the University of Virginia, commissioned by CIC, was also provided for our review. In his paper, Professor Martin reached the conclusion that the United States does adhere to the principles of the Refugee Convention and that its asylum processes are consistent with international law.

(i)    Expedited Removals

        The United States introduced the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996 and substantially altered their asylum process. Upon a foreign national’s arrival at a port of entry, the IIRIRA authorizes an immigration officer to order the person removed from the United States without further hearing or review if the officer believes that the person arrived without proper documents and is illegally in the country. If the foreign national without proper travel documents makes a claim to asylum at a port of entry or if a claim to asylum is made when the foreign national has previously entered the country without being inspected at an official port of entry, the claimant can still be removed from the U.S. if an asylum officer determines that he or she does not have a "credible fear" of persecution. The person claiming asylum must be detained until this decision is made. The IIRIRA permits an immigration judge to review a negative decision of an asylum officer, if requested by the claimant. The judge’s review must be completed within seven days. Detention is discretionary pending a decision by the immigration judge.

        Witnesses expressed concern about this process. They fear that claimants returned from Canada pursuant to the Agreement will not necessarily be granted a full hearing of their claim in the United States if they are undocumented. Rather, they could find themselves in the expedited removal process, which many witnesses, including the UNHCR, suggested does not provide adequate procedural guarantees against refoulement, or return to the country where they claim to fear persecution.

        Department officials countered that claimants who are returned by Canada to the United States would not fall into the expedited removal process as it only applies at American ports of entry and the claimants who are turned away at the Canadian border are already in the United States. This was not the understanding of the UNHCR, which indicated in its brief that although "U.S. government officials have stated they expect that most persons returned from Canada would not be subject to expedited removal, this has not yet been confirmed." As well, Professor Martin’s memorandum is ambiguous, stating that it is not clear whether expedited removal could be applied to claimants returned to the U.S. from Canada. However, he does state that such a return would be considered as creating a "new arrival" in the context of the American one-year deadline to apply for asylum; arguably, then, it could also be considered an "arrival" that would trigger the expedited removal process.

        The Committee notes that Article 3 of the Agreement requires adjudication of a person’s refugee claim in one of the two countries. The Committee has sufficient concerns about the expedited removal process that we feel it must be addressed for Article 3 to be meaningful.

RECOMMENDATION 1

The Committee recommends that the government seek assurances that people returned to the United States under the Agreement will not face expedited removal proceedings.

(ii)    Detention

        Most of the NGOs also discussed what they view as an excessive use of detention by the American authorities. The conditions of detention were also questioned, and it was indicated that many refugee claimants in the United States, including minors, are held in facilities with criminals.

        The department indicated to the Committee that while the U.S. may in practice detain more asylum seekers, in law their grounds for detention are the same as in Canada: that the person is a security risk, is unlikely to appear for hearings or removal, or their identity is not established. Professor Martin dismissed the concerns of groups such as Amnesty International regarding detention as being based on cases that violated American law and were subsequently corrected.

        The Committee accepts that American detention policies differ from those in Canada to some degree, but believes that the U.S. does comply with international law in this regard. With respect to the detention of minors, the Committee notes that the Agreement and regulations do provide that unaccompanied minors will be permitted to enter Canada from the U.S., and we have made recommendations for improving the treatment of unaccompanied minors below. The Committee is concerned that some people may be detained in the U.S. who would likely not be detained in Canada. As will be recommended below, this issue should be part of the ongoing monitoring of the Agreement.

(iii)    Gender-based Asylum Claims

        Witnesses questioning the American application of the refugee definition made specific reference to the fact that gender-based claims are treated differently in Canada, particularly those based on domestic violence. In fact, in the Regulatory Impact Analysis Statement, the department concedes that Canada and the U.S. "have different approaches" in this regard. Professor Martin addressed this topic by stating that the U.S. has actually been hailed as a leader in the recognition of gender-based claims and that it is only the "difficult and controversial" area involving claims based on domestic violence that is problematic. This, he suggested, is due to the Board of Immigration Appeals decision in Matter of R.A. in 1999, where a restrictive view of the Refugee Convention ground of "particular social group" led to the rejection of a claim based on domestic abuse. This decision, he noted, was subsequently vacated on the order of Attorney General Janet Reno, and new regulations to guide decision-makers in such matters are currently being created. Professor Martin does concede that until these regulations are published, real uncertainty about current American standards exists.

RECOMMENDATION 2

The Committee recommends that until such time as the American regulations regarding gender-based persecution are consistent with Canadian practice, women claiming refugee status on the basis that they are victims of domestic violence be listed as an exempt category under section 159.6 of the proposed regulations.

RECOMMENDATION 3

The Committee further recommends that gender-based analysis be part of the ongoing monitoring of the Agreement to ensure that victims of domestic violence are not adversely impacted.

(iv)    One-year Time Requirement for Filing an American Asylum Claim

        Under the IIRIRA, a person is barred from accessing the American asylum system if they fail to apply within one year of arrival in the United States. Many of the witnesses appearing before the Committee argued that this bar could result in claimants who are returned from Canada under the Agreement not having access to either asylum system; for example, if they came to Canada after having been in the U.S. for over a year as students or visitors. The UNHCR, in particular, argued for an exemption for such cases.

        Professor Martin’s memorandum, in contrast, notes that the one-year bar is not absolute. It is subject to override if claimants can show either changed circumstances that affect their eligibility for asylum (e.g. a student who has been in the U.S. for a year now fears returning to his home after a military coup) or extraordinary circumstances relating to the delay in filing (which includes serious illness, disability, or ineffective assistance of counsel). As well, the one-year deadline is calculated from the time of the person’s last arrival. Professor Martin suggests that being returned under the Agreement from Canada to the U.S. would be considered a "new arrival" and would have the effect of starting the one-year clock anew.

RECOMMENDATION 4

The Committee recommends that the government seek assurances from the United States that claimants returned under the Agreement will not be precluded from accessing the American asylum system on the basis that they have been in the United States for one year or more.

B.    The Agreement Only Applies to Land Ports of Entry

        The fact that the Agreement and proposed regulations apply only to land ports of entry was discussed at some length in the Committee’s proceedings. The fact that inland claims are not covered is due, in part, to lessons that have been learned from the European experience. In implementing safe third country regimes, some countries had to establish time-consuming and costly processes for inland claims. It is understandable that the government would like to avoid diverting resources to a procedure intended to establish the inland claimants’ route to Canada, rather than using that time and money to actually decide their refugee claims.

        We also heard evidence relating specifically to the German experience. In 1993, Germany enacted a safe third country rule that related to all nine countries with which Germany has land borders. No one who sought entry from one of those countries overland was allowed to enter and make a claim, without exception. The main purpose of the agreement was to reduce the number of people applying for asylum in Germany. Overnight, no one applied for asylum any more at the land borders. Yet every year since then, approximately 100,000 people have applied for asylum in Germany. They all cross the borders illegally and apply inland.

        Many witnesses indicated that the fact that the Agreement does not apply to inland claims would, as occurred in Germany, lead people to enter the country surreptitiously. One witness even indicated that church groups would assist in this endeavour, setting up what was referred to as a modern "underground railroad." Others pointed to human smugglers as likely beneficiaries of the Agreement. The NGOs pointed to the inherent dangers involved in entering Canada illegally and the potential for injury and loss of life.

        The Committee was also told of the fairly orderly system that now exists at Canada’s ports of entry, including the land border. All claimants are fingerprinted, photographed and issued instructions for medical examinations. This will, of course, not occur if people avoid reporting to border posts. It was suggested that the Agreement could therefore have an adverse effect on security and public health in Canada, given that more people would enter the country illegally. It was also suggested that this could result in a public backlash against refugees, as illegal entries tend to create intolerance.

RECOMMENDATION 5

The Committee recommends that, as part of the monitoring of the implementation of the Agreement, the issues of "irregular migration" and people-smuggling be closely watched. Should the Agreement fail to decrease the number of claims being referred to the Immigration and Refugee Board, and should an increase in the number of illegal entries to Canada be apparent, the government must be prepared to exercise its authority to suspend or terminate the Agreement.

C.    Definition of Family

        The Committee heard concerns expressed with respect to the definition of "family member" in the regulations. This definition is particularly important because claimants with a listed family member in Canada will not be returned to the United States.

        To begin with, some of the witnesses suggested that de facto family members should be included in the definition. Many refugees lose their biological family members and become dependent on others, both financially and emotionally.

RECOMMENDATION 6

The Committee recommends that the regulations include an exception for claimants with de facto family members in Canada who serve or have served as their primary support mechanism.

        Another concern was the wording of section 159.5(b) of the proposed regulations. It is necessary that the family member in Canada have "lawful status" for the exception to apply and this section would include a family member whose claim for refugee protection has been accepted under the Act. Some of the witnesses felt that this wording might improperly exclude those who had been granted protected status through the Pre-Removal Risk Assessment process of the Act.

RECOMMENDATION 7

The Committee recommends that section 159.5(b) of the regulations be changed to clearly include all protected persons under the Act.

        A final issue relating to the family exception arose in the course of the Committee’s discussion of refugee claims based upon domestic violence. We have recommended that, until the American regulations regarding gender-based persecution are consistent with Canadian practice, women claiming refugee status on the basis that they are victims of domestic violence be permitted to have their claims heard in Canada. To ensure that victims of domestic violence are not pursued by their abusive spouses, the Committee feels that the regulations should clearly indicate that the family exception should not apply to men whose wives or common-law partners have been permitted entry to Canada on this basis.

RECOMMENDATION 8

The Committee recommends that the definition of family in the regulations be changed to provide that a person not be granted entry to Canada to pursue a refugee claim on the basis that his spouse or common-law partner is in Canada, if the spouse or common-law partner in Canada was permitted entry on the basis that her refugee claim concerns domestic violence.

D.    Unaccompanied Minors

        The Agreement provides an exception for unaccompanied minors, who would be permitted to enter Canada to pursue a claim for protection. The regulations define such a claimant as a person who:

        As some witnesses pointed out, this appears to be more restrictive than the text of the Agreement itself, which defines an unaccompanied minor as an unmarried person under 18 without a parent or legal guardian in one of the two countries. The additional requirement that the child not be accompanied to the border by any adult was criticized as problematic. What if an adult sibling accompanied an orphaned child? The Agreement would appear to allow the child to enter Canada while the regulations would not. What about a kindly stranger seeking to help the youngster, or another adult who has no legal duties with respect to the minor?

        Witnesses also referred to the fact that Americans often detain children, sometimes with criminals, and also expressed concern that the United States has not ratified the Convention on the Rights of the Child.

RECOMMENDATION 9

The Committee recommends that an unaccompanied child be defined as a minor separated from both parents and not accompanied by a person over 18 who by law or custom has the responsibility for looking after the child.

E.    Public Interest Exceptions

        Article 6 of the Agreement provides that either country may, at its own discretion, examine any refugee claim where it determines it is in its public interest to do so. The proposed regulations specify the following public interest exceptions:

        Thus, the Committee has concluded that it cannot be said that the exception in the regulations for those facing a death penalty creates a safe haven. Rather, it is consistent with other aspects of our law, and most members of the Committee support it. We note as well that none of our witnesses disagreed with that exception.

        Our witnesses did, however, argue for additional public interest exceptions. To begin with, some suggested that the broad discretion of the Minister under the Agreement is taken away by the regulations. Witnesses felt that the regulations should specifically indicate that the Minister may exempt any claimant from the safe third country provisions in the public interest. The Committee believes that specifying that this discretion exists is merited.

RECOMMENDATION 10

The Committee recommends that section 159.6 of the regulations include a provision allowing for the non-application of the Agreement in any additional situations the Minister determines to be in the public interest.

        Witnesses also provided other suggestions for public interest exceptions. Some concerns that could be addressed through this provision have been referred to already in this report. The Committee has considered all of the proposals and makes the following recommendations:

RECOMMENDATION 11

The Committee recommends that Francophone claimants should, in the public interest, be permitted to have their claims heard in Canada.

RECOMMENDATION 12

The Committee recommends that claimants who may succeed in a claim for refugee protection under the Immigration and Refugee Protection Act but, because of the nature of their claim, would not be protected in the United States, should, in the public interest, be permitted to have their claims heard in Canada.

F.    Procedural and Administrative Issues

(i)    Resource Requirements

        Many witnesses questioned what sort of process would be established at our land ports of entry to administer the regulations. CIC officials informed the Committee that two officers, one of them a Senior Immigration Officer, would review any claims by people who indicate that they meet one of the exceptions under the regulations. Only then could a person be returned to the United States. Witnesses from the Canada Employment and Immigration Union, however, pointed out that some border posts are staffed only by one person.

        The Union representatives also referred to other resources that will be required to implement the Agreement. Officers at the border will need to do more in-depth interviews with claimants to determine if they meet one of the exceptions in the regulations. As an increase in claims at inland offices and airports can be expected, more resources will be required there as well. The expected increase in "irregular migration" will also place more demands on border enforcement personnel. All this will compound existing strains on resources. In fact, the Union representatives indicated that CIC term staff are currently being let go for financial reasons.

        Adequate resources must be provided to the department to implement the Agreement. It is clear that if the resources are not there, the Agreement will not have its desired effect. We hope that the department will meet its commitment to have at least two officers available at all border posts in order to fairly and quickly assess whether claimants meet one of the exceptions in the regulations.

RECOMMENDATION 13

The Committee recommends that additional resources be provided to the department to meet the demands that will result from implementation of the Agreement. The government must closely monitor the effects of the Agreement and assemble "SWAT teams" that can be deployed quickly should bottlenecks appear.

(ii)    Burden of Proof

        The Committee heard concerns about whether the proposed procedures will be fundamentally fair. Many witnesses referred to the burden of proof that asylum seekers would be required to meet at the border, as section 159.5 of the proposed regulations indicates that claimants must establish that they are eligible to make their claim in Canada. This may be difficult for claimants who do not have legal counsel or who do not speak one of Canada’s official languages, and who may require some time to establish that they are exempt under the Agreement. As well, the Committee is aware that many may have been forced to flee their homelands without documentation or may come from countries where no central government exists to issue documentation that could assist the person.

RECOMMENDATION 14

The Committee recommends that the regulations specifically state that they are to be interpreted in a manner sensitive to the difficulties that may be faced by claimants in providing proof that they are eligible to have their claims heard in Canada, and that claimants should be given the benefit of the doubt.

        We note that in cases where there are delays in this process, a deemed referral of the claim to the Immigration and Refugee Board will occur after three days, in most cases, pursuant to section 100(3) of the Act.

(iii)    Appeal Mechanism

        A lack of effective appeal mechanism was also cited as a concern by many of the witnesses. Departmental officials indicated that any decision by an immigration officer is subject to judicial review by the Federal Court. However, the NGO witnesses argued that such an appeal would not be accessible to most refugee claimants who would be required within 15 days to obtain counsel to file an application for leave to be heard by the Court. Leave can be difficult to obtain and, even then, the Federal Court will not review the immigration officer’s decision on a standard of correctness. Thus, although judicial review is available, it may not provide a practical remedy. Because the IRPA now provides that a finding of ineligibility forever precludes another claim, the repercussions of the immigration officer’s decision are significant.

RECOMMENDATION 15

The Committee recommends that the regulations provide for an effective and transparent internal review mechanism before returning someone to the United States to make a claim.

G.    The Supplementary Draft Agreement

        A diplomatic note accompanying the Safe Third Country Agreement, based upon Article 9, has been made public. It would permit the U.S. to refer up to 200 people per year to Canada for resettlement provided they are "outside the United States and Canada, as defined in respective national immigration laws, and have been determined by the Government of the United States of America and the Government of Canada to be in need of international protection." While the Agreement clearly contemplates Canada being able to refer refugees to the U.S. for resettlement, the supplementary draft agreement only refers to Canada’s willingness to resettle American referrals. When discussing this matter, the Minister indicated that the U.S. had originally suggested that Canada accept 2,400 referrals per year.

        The Committee notes that Article 9 of the Agreement is reciprocal and that Canada is permitted to call on the U.S. to resettle refugees as well. We are hopeful that the United States will be as cooperative in accepting referrals from Canada, should the need arise. We also note the department’s assurances that any refugees referred by the United States would be subject to Canadian law and would be screened by our officials prior to entry. However, in the interests of openness, the Committee believes that if the number of referrals is to be specified, it should be specified for both parties and should form part of the main Agreement. It is inappropriate to have such a significant issue addressed by a diplomatic note in this manner.

RECOMMENDATION 16

The Committee recommends that the provisions of the supplementary draft agreement be incorporated into the main Agreement.

H.    Review of the Agreement

        The Committee was moved by the conviction and heartfelt concern of the witnesses who appeared before us to express their reservations about the Agreement and the regulations. It is quite clear, however, that the Agreement will be implemented, and soon. We would like to encourage all those who work on the front lines — in the department and for the NGOs — to make public any problems that come to light. Moreover, this is clearly a matter that requires continued oversight by the Committee.

        Ongoing monitoring will ensure that the various issues that were raised in our hearings continue to remain alive. For example, the Committee heard evidence that the American asylum system may be improperly influenced by that country’s foreign policy goals. In the event that such an improper influence were to become apparent in the course of monitoring the Agreement, remedial action could be taken by the Government of Canada at that time, including suspending or even cancelling the Agreement.