CIMM Committee Meeting

STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION

COMITÉ PERMANENT DE LA CITOYENNETÉ ET DE L'IMMIGRATION

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, February 24, 2000

• 0911

[English]

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

We'll start where we left off yesterday, which was just with a general discussion. Margaret has been good enough to write down some of the things we've heard from the witnesses with regard to our system. Those should be used as a guide for us so we can give some thought as to what kind of system we want to put into a report, which obviously would go to the minister before she brings down a new piece of legislation with regard to immigration, immigrants, and refugees.

We talked a little about the timelines that we decided to set for ourselves yesterday, taking into account that we're not here the following week. We have some witnesses on Wednesday and Thursday of next week, some from CSIS and some refugee people who have gone through the system who will give us some insight as to their experience.

Yesterday was a rather short meeting because we got interrupted by votes. I expect that we'll probably be interrupted again today by votes, possibly at 10 o'clock, and we only have this room until 11. There are no other rooms because other committees are meeting, which means that I'd like to start as quickly as possible.

As I said yesterday, we're going to try to get, hopefully, a full report, a consensus report that we can agree to. If we don't, that's fine too—that's the process—but hopefully we can get a report to the minister by the middle of March, because I want to make sure this committee is relevant to the timelines, the timetable, she might have. Therefore, I know we need to work as quickly as possible, plus we have another piece of legislation that needs to be dealt with, and that's the Citizenship Act, which will come before us around the middle of March.

I'm going to try to incorporate both witnesses we have for next week, slated for Wednesday and Thursday, into one day, Wednesday, allowing—again, hopefully—a full day Thursday, even with some additional hours if we need to. As well, I will ask whether or not there's any disposition on your part to do some work next Tuesday afternoon for a couple of hours. I've reserved a room in advance just in case we may want to have a couple of hours to continue putting this thing together. This is not a draft report. These are only some points.

So I'm wondering if you could look within your schedules at whether or not it might be possible to meet for a couple of hours on Tuesday afternoon. Why don't you just think about that? That's where I'm coming from. By the end of the meeting maybe we can see how far along we are and whether or not Tuesday would be necessary, but so far, I'll do it....

Let's just continue how we did it yesterday, which was really rather informal. Margaret has been good enough to give us certain categories. Yesterday we dealt a little with the detention system, with “if and when required”. The B part was the initial considerations regarding the refugee claim. We talked a little about that.

We're on to the access criteria. I thought maybe that would be a good starting point. There were a whole bunch of points made by different people as to what the access criteria are. Margaret has been good enough to point out to me that the present act says, really, that everybody has access to the system save and except those who are excluded. That's why certain points have been made by the witnesses.

• 0915

What I'd like to do, at least logically in my mind, is this: let's give some thought as to what kind of system we want to create in terms of accessing our refugee determination system, in terms of who should be eligible and who should not, just to start that discussion, as opposed to looking only at the exceptions.

Who in fact should be eligible to access that system? In fact, yesterday there was some talk about a first admissibility for everyone to go through. If there were a question of non-cooperation, if there were a question of criminality, security concerns, and so on, those people essentially might be left off to one side. Everybody else, then, would immediately access the IRB system. That was the first admissibility screening test that we talked a little about, that first post in the system.

How do you access the IRB system? Who should access it? And obviously, when we get into it, how should the system be improved? How should it become more efficient, quicker but fairer, so that we can determine who actually is a refugee and who is not?

Let's begin just with some thoughts. It could be a sort of free-for-all so that we can just test some ideas. I'll start with Leon.

Mr. Leon E. Benoit (Lakeland, Ref.): I'd like to start, Mr. Chair, by raising an objection to how this was brought forth. We had a steering committee meeting last week and there was absolutely no talk of discussion on the report taking place this week.

I had a trip planned, which was important to my job, I believe, and to representing my constituents. I come back and find that I've missed the first day of the discussion, and I certainly haven't had proper time to prepare for this. When this happens, I become very concerned about organization. Whether it's intentional or not to make things difficult, I don't know. I would assume that's not the case, but certainly I would expect that at the steering committee the previous week this would have come up; it just seems like the reasonable thing to do, but it didn't happen. I'm really concerned about this committee backsliding into the type of atmosphere we had last time. I don't want that to happen and I don't want this kind of thing to happen either.

The Chair: I think before, obviously we said in the meeting.... I tried to explain to you. You're probably right: it wasn't planned, but this week would have been a complete washout because I couldn't get witnesses this week. The witnesses we had planned to get all indicated that they could come next week. So I was left with the thought of, do we sit around and twiddle our thumbs, do absolutely nothing this week, or do we just...?

Again, we're all in the same boat. Margaret just landed this thing on us; I only asked her to prepare what the witnesses have said. There isn't anything in here that is a government position, a minister's position, or our position. It's just what we heard from the witnesses. So to be constructive and to put our time to use....

There's no trying to deal with this, trying to hide anything, trying to push an agenda and everything else. I sincerely tell you that, and I apologize for this. It's just saying, hey, let's put our time to good use. We'll hear some witnesses next week. We'll continue to write this. But I did indicate this yesterday, and Rob was around.

Again, we're all in the same boat. We just received some of this information. We just want to start to talk about these things, recognizing that, in my opinion, we want to get a report out by the middle of March so that we become relevant to the process, the governmental and parliamentary process. That's all I've tried to do. If you want to chastise me for trying to make us work instead of having us sitting around and doing absolutely nothing, I'm guilty.

Mr. Leon Benoit: Joe, come on...over a month ago we had a list of witnesses we wanted for this committee, and they're not coming...?

The Chair: I refer you to Rob.

Mr. Leon Benoit: It sounds like you're not even going—

The Chair: I'm sorry.

Mr. Leon Benoit: —to bother—

The Chair: No.

Mr. Leon Benoit: —inviting them.

Mr. John Bryden (Wentworth—Burlington, Lib.): On a point of order—

The Chair: John, he's asking some questions of the chair. I think I can answer for myself, if I may.

One, yesterday I answered Rob's concerns as to the witness list. The subcommittee report or the report with regard to the steering committee indicated—and a lot of people were here—that he wanted to hear from some refugees. I got you refugees. We wanted to hear from CSIS. I got CSIS. We wanted to hear from an American and I put forward a name. Unfortunately, they can't come, and we're not going to ask the American officials to come here because they can't. I'm not going to ask Mr. Lander...or what's his name?

Mr. Leon Benoit: Lamar Smith.

The Chair: Yes—the congressman from the United States.

Mr. Leon Benoit: So you're going to prejudge the witnesses who are allowed to come to this committee, then, Joe?

Mr. John McKay (Scarborough East, Lib.): How did that come through?

The Chair: I'm sorry. I talked about Lamar Smith before. It's improper to ask one one-party person to come over here to talk to us. We made that decision, so there's the list. We tried. We can't get any Americans—and those are the only people we couldn't get.

Mr. Leon Benoit: It is your option to ask someone else if you want, but that's a witness I wanted because I think he has some very valuable things to offer to this committee.

• 0920

The Chair: We've been most accommodating to your witness list. In fact, if you look at the witness list, every one you put forward we delivered, save and except Lamar Smith—and it isn't going to happen.

Mr. Leon Benoit: No, that's not true. I had several others on that list too, as you know, Joe.

The Chair: John.

Mr. John Bryden: No, I think we should just continue.

The Chair: Okay.

David—

Mr. John Bryden: May I make a point, though, Mr. Chairman?

There's nothing stopping us going back, Leon, to discuss briefly what we already discussed the day before. I think you'd find you'd be 100% in accord with our discussions of yesterday, but it will be in the committee Hansard. Why don't you look at the committee Hansard? Then, if you have some extra input that you want to add to what we did yesterday, that's fine.

But I think we're all on the same vessel here, all in the same boat. We want to come up with the best report possible and we don't want to exclude anyone.

The Chair: This is the very beginning of the process. I don't know why we're jumping to the conclusion that we're trying to write something at this point. We're just trying to get some ideas from everybody and put to use our time that we have.

Mr. Leon Benoit: Even to have proper discussion, Mr. Chair, it takes some preparation time, and here I am today finding that we're—

The Chair: You're so talented, Leon, that I know that once we get to a particular category you're going to have a lot to say, which means that you probably have an awful lot in your head—and believe it or not, these points will just confirm a reminder of what has been said over the past three months.

David.

Mr. David Price (Compton—Stanstead, PC): Thank you, Mr. Chairman.

I guess what we're doing here is basically just a bull session, and I have no problem with that. The only thing is the bottom line: where we're going with all of this. There have already been a couple of studies towards the new bill. Do what we discuss here and the things we come up with here have any chance of getting into the new bill that's coming up?

The Chair: I would hope so. That's provided we get something in, in a timely fashion. If we're still going to be here in May or June discussing the refugee determination system I'll guarantee you it's going to be totally irrelevant, because the bill will probably be introduced by then.

My point is this: yes, we have a great opportunity of influencing not only the minister but Parliament with regard to the hard work that we—and previous committees, maybe—have done.

Mr. David Price: Yes.

The Chair: But that's why I said I'm looking—

Mr. David Price: That's just what I wanted to get clear.

The Chair: —at a timeline that essentially will make us more relevant if we can in fact get a report in by timelines, and this committee's timeline, for the middle of March.

Mr. David Price: So your feeling is that we will actually have input to it.

The Chair: Yes. In fact, as we get into this discussion, before we write the final report.... One of the things we talked about at the steering committee—and Leon will remember this—was that we may perhaps want to bring in the minister in camera once we've flushed out a whole bunch of points, before we actually have the final draft, and say, “Minister, here's where we're coming from, so what do you think about this so far?” That might be an option.

Leon.

Mr. Leon Benoit: First of all, when we talked about the minister coming in, there was no talk of in camera. I don't think that's an appropriate way of doing things, quite frankly.

Again, I have a real problem with this committee existing and operating on a timeframe to justify the minister's legislation. Clearly if legislation is going to come down in a month or two, what we say through this committee will have absolutely no bearing on it. Why do we want to be here just to justify the minister's position?

The Chair: Leon, I disagree with you. I don't know how long you've been around this place, but I've sat on many committees and so have you. The fact is, I believe, that if a committee really strongly believes that it wants to impact the system, it does the work as we're doing and it in fact gets its report to Parliament in a timely fashion. The government has to respond to a committee's report, but more importantly, we want to make sure that our information gets to the minister before she starts drafting any legislation.

I'm trying to be open with all of you. I could have said absolutely nothing to you about the time of any particular legislation, because I want this committee to be non-partisan, to be a very good working committee, something that we can all share. In fact, at the end of the day I bet you that we will agree, as we did yesterday, on 90% of the issues. If we can in fact bring together a unanimous report or an awful lot of consensus, I'll tell you this: that has a heck of an awful lot of clout in the mind of a minister and/or in Parliament. Therefore, we can be very constructive and useful.

I believe in the system, still, and I've been here 12 years now; I still believe that committees do have an important part to play in the drafting of legislation.

Mr. Leon Benoit: Of course I haven't seen—

Mr. John Bryden: Can I just get in here for a second, Leon?

This is going to go on. I want to assure you. Yesterday I said to Margaret—and she will confirm—that this is probably going to be the most important report that she has ever written, and she has written a lot of reports.

• 0925

We're not dealing with a report that's just for the minister or just for Parliament. This migrant problem, this refugee problem, is an international problem, one of the greatest international problems going in terms of compassion, and it is a problem that every nation is confronting. This report that we're going to come out with here is going to be read not just by the minister, not just by Parliament, but by every embassy in this town that represents a country with the same problem of refugees.

This is a fundamentally important report. I say let's get on with it, for heaven's sake, because we have a job to do and we must do it.

The Chair: That's what we're going to do right now. I think we've discussed enough about what we can do. With the rest of the half hour.... We have another hour, so let's just talk. Hopefully at the end of the day we will have done something constructive.

Let's go to these access criteria, which talk a little about how one gets into or shouldn't get into the system. For your guidance, there are at least nine points that Margaret has put into this particular section, even though there are a number of other points you will see throughout the document which may very well refer to access.

Let's start by talking a little about the access system. I'll go to Leon first.

Mr. Leon Benoit: Mr. Chair, I have to read the report before I can comment on it.

The Chair: Okay, Rob, do you want to go first?

Mr. Rob Anders (Calgary West, Ref.): I'd just like to say that I think changing the 90 days to a year—as an example—is probably a decent idea. That's item 1.

Generally, I think, items 2 and 3 are decent statements of some of the things that were transpiring here and whatnot, and they were acceptable.

Item 4 says,

There should be a 30-day time period after arrival to make a refugee claim, subject to compelling circumstances.

While I recognize that we want to have some sort of leeway and that 30 days is probably reasonable there, I'm wondering in regard to this initial interview process we talked about in section B, item 2 there.... The determination or interview investigation or interview or whatever people want to call it would hopefully catch most of the refugee claims. Therefore, this 30-day time period to make a refugee claim would mostly be just a formality kind of thing. Most of them would actually be caught in that initial interview process.

I have a question about item 6. It says, “The existence of a removal order should not continue to preclude the making of a refugee claim.” Now maybe this is just something I'm seeking information on, but if somebody has a removal order in the sense that they've failed in some stage of the process, I have difficulty understanding why we would allow them to make a refugee claim.

The Chair: Maybe we can ask Margaret to comment. This was a point made by the CBA—

Mr. Rob Anders: Right.

The Chair: —the Canadian Bar Association. Maybe we can clarify it.

Ms. Margaret Young (Committee Researcher): The law has never permitted individuals to make a refugee claim once a final removal order had been made. I would guess that the reason for that being in the law right from the beginning was to cut off at least some of the opportunities for delay. A person couldn't go through the entire process, get a removal order, maybe be waiting for removal for a year or whatever and then pop up and say, oh, a refugee.... That has always been the case.

I guess the CBA point was, no, we shouldn't do that, there shouldn't be any impediments to that, and I put it in. You're trying to speed up the process and it definitely won't do that, but there we are. It has always been in the law.

Mr. Rob Anders: I take serious exception to that, because I think it will just help to slow things up and to create more loopholes, which is what we're trying to eliminate here, and we're trying to speed up the process.

The Chair: In other words, the status quo on this particular point...?

Mr. Rob Anders: Yes, I think if we went along with the CBA recommendation on item 6 all we would be doing is opening up the process to more problems, more loopholes, more abuse.

On item 7, there is a discussion of no category, of how “no category of person” should be excluded from a full refugee hearing. I had some discussion with some of my colleagues before the meeting started today. Of course the refugee hearing can be as short as 15 minutes and whatnot, and that can constitute a full refugee hearing, but I was just wondering about some of the discussion about people who were uncooperative and lying in the process, who weren't willing to furnish documents or who got rid of them or destroyed them...all these types of things.

• 0930

If we go along with the idea that those people must have access to all sorts of full hearings and this and that and everything else, I think, once again, we're begging the problem.... If we have people who are uncooperative and have purposely destroyed documents and we know that to be the case on arrival and everything else, I'm not so sure that we should be going down that route. It's just a kind of a—

The Chair: In some cases, as we've discussed and as I think you've said, you don't want them to have.... And again, this is dealing with the access criteria. What you're saying is that if in fact you find someone that's uncooperative and you can't make a first case as to why they might be a refugee, and there's criminality involved, security involved, then they don't even access the system.

Mr. Rob Anders: Yes, exactly.

This was something that John touched on yesterday—and has before, along with a number of other people—and I guess it could touch on the...[Technical Difficulty—Editor]...decision in some respects as well. If we get somebody who is obviously uncooperative and has all these problems, and if we make this type of provision here that nobody should be excluded, I'm wondering if we're tampering with that ability to automatically deport people if they're totally uncooperative and not willing to disclose documents.

Mr. John Bryden: Quite right.

The Chair: Margaret.

Ms. Margaret Young: If I could speak to item 7, it's only four lines here, but it's a very complicated issue.

Let me point out that there are really two things embedded in item 7 or in this whole...[Technical Difficulty—Editor]. The first thing you have to think about is what the access criteria are; that's the other point under this section. The second thing is, who is going to administer them?

Let's say you're going to have criteria that'll keep people out. Who's going to administer that? At the moment that is an immigration department function, with the senior immigration officer and an adjudicator who will make the tough decisions—but it's the senior immigration officer who decides whether somebody is excluded from the process.

The refugee advocacy community has always hated that and has advocated right from the beginning, from the mid-1980s, that this should be transferred to the IRB, that it shouldn't be an immigration department decision. Now, concomitant with that, a number of them have argued that there shouldn't be any reasons to keep somebody out—let alone as an absolute bar, which it is now.

The reason they would like it transferred to the IRB is so that the IRB could do some weighing. For example, a criminality exclusion: the board could take the severity of the criminality and weigh that against the danger to the person should they be returned. The government has always resisted that, but it's here because you heard it again and again: the eligibility should be transferred to the board so that it would be their function rather than the immigration department's.

I think it's important to draw it to your attention, so I've done so. The IRB legal counsel's testimony was that we couldn't administer a number to criteria; what comes to my mind is that he must have been thinking of the security, the criminality, those things that involve links to other countries. CIC's testimony was that they also would be opposed to transferring eligibility criteria—but this has been a very live debate, for over 10 years, as to whether it's the immigration department's function or the IRB's.

So it's only four lines long, but there are very complicated issues.

The Chair: Thank you. I think that's good food for thought for all of us as we start thinking about that.

John, you're next.

Mr. John Bryden: I appreciate that, Margaret, but I think the reasons for retaining it in the immigration department are still sound. It has been a 10-year contest, but the immigration department pretty well has to be the body that does do it. The criminality and security checks, the whole infrastructure for the immediate port of entry when these people arrive, has to be administered by the immigration department, and I don't think anything has changed that.

If you did change, you would get yourself into a huge mess and slow down the entire process, so I'm very much on the side of Rob with that. In fact, I'll be brief. I agree with just about everything that Rob said there, including that I'm uncomfortable with item 6 but supportive of items 1 through 5.

I would just add the additional remark that I think item 4 is very important. I think it's important that if a person hasn't made a refugee claim in 30 days you must have a cut-off time.

• 0935

In fact, in the Singh decision, interestingly enough, the one person that was subject to the Singh decision went into hiding for seven years and then made a refugee claim when she was finally caught. That is precisely the kind of abuse we want to avoid. The 30-day period, I think, should be amended...[Inaudible—Editor]...a 30-day period. That's all I have to say for items 1 through 7.

The Chair: What was the 30-day...?

Mr. John Bryden: That's item 4. I think it's a very good provision.

I will say, with respect to item 6, that maybe what you can do there is to marry the 30-day provision in item 4 to item 6. Maybe that would help to make item 6 more meaningful, so that the removal order that existed for.... Somebody could still make a refugee claim if they had a removal order, but only up to 30 days. After 30 days, it would be cut off. Maybe that's a compromise to make.

The Chair: Thanks, John.

Rob, were you agreeing or disagreeing with item 7, just for my own information? It's not that I want a full commitment—just your sense of it.

Mr. Rob Anders: My sense is that I see a problem there. If we have people who are not being cooperative and are obviously doing an abuse to the system in some capacity, whether it's destruction of documents or giving us full disclosure or whatever it happens to be, then I just don't know why we—

The Chair: No, that's fine, but should it be the immigration department or should it be the IRB?

Mr. Rob Anders: My thinking on this, even though frankly I think the IRB is probably doing a better job of handling its own affairs right now than the department is.... However, in terms of the enforcement provisions, maybe it is better for the department to deal with it.

The Chair: Okay.

Andrew, and then we'll go to David.

Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.): One area, Mr. Chair, where there is a problem—and I guess the discussion that preceded my input helped to point to it—is in getting the cases from the immigration department to the IRB once a claim is made. One of the things we're trying to do is to expedite the process. Sometimes it can take months once a claim is made to actually get it over to the IRB.

The other one is more.... If you make a determination that you can't access the system, that's going to be more open to challenge than if that decision is made by the IRB. I think that's something to keep in mind in terms of the balance. That's one of the reasons why we had the Singh decision.

The Chair: Thank you.

David.

Mr. David Price: I just got the report this morning, so I'm a little like Leon in that I haven't had a chance to really look at a lot of it.

I'm looking just quickly at items 8 and 9 there, and I'm a little bothered by, first of all, item 8: “The safe third country provision should be removed as a dead letter.” That's from the bar association. I didn't hear them talk about that.

The thing is, the safe third country provision is already there. It has been there for quite a while, but it has never really been enforced or worked on. The agreements have never been negotiated. They tried, apparently. That's what they told us, that they tried with the Americans—so far.

It doesn't seem like much effort has been put into that part of the system and I think it's a good part; I think it has a lot of possibility. Granted, it's not that easy to negotiate with somebody, but if it works both ways I just can't see removing something like that when it's something that is already there—we just haven't gone forward with it.

The Chair: Good.

Are there any other points on the other items?

Mr. David Price: The others...?

The Chair: I'm not hurrying, now; I'm just asking.

Mr. David Price: Yes, like the 30-day thing, item 4. That's one of the things we have been talking about for a while. I haven't had a chance to really look—

The Chair: I'll come back to you in a moment.

Rick, and then Sophia.

Mr. Rick Limoges (Windsor—St. Clair, Lib.): Thank you, Mr. Chairman.

With regard to item 5, I would just like to state that I'm a little concerned with the use of the word “involved” in “involved in organized crime”, because if we're talking about excluding victims, it's problematic. I think we ought to make sure that we're referring only to those people who are actually the perpetrators in organized crime.

The Chair: I agree with you, Rick.

Could you enumerate them? Would you include such people as traffickers or smugglers?

• 0940

Mr. John Bryden: Any kind of—

Mr. Rick Limoges: I think we definitely ought to be concerned about anybody who is directly involved in organized crime, but I think there ought to be an explanation there that the victims of organized crime, the people who are actually being victimized by this, shouldn't be victimized again by our system.

The Chair: I don't think that was inferred there.

Mr. Rob Anders: If there's just a verbal change there, where you include “people perpetrating organized crime” instead of saying—

The Chair: Yes. Again, this is what's in the CIC paper.

Mr. Rob Anders: Yes.

The Chair: This is what they said. This is not, for our purposes when we write it—

Mr. Rick Limoges: We can clarify that, in any case.

The Chair: We may not want to use the word “involved”, but we may want to be a little more—

Mr. Rick Limoges: Right.

The Chair: —specific.

Thanks for that, Rick and Rob.

Go ahead, Rick.

Mr. Rick Limoges: As well, I think, for item 6, I'm not in favour of that; I find that's a little problematic.

With regard to item 7, I disagree with what some of my colleagues said earlier with regard to the administration being transferred to the IRB. The reason I feel that way is that I think the IRB has an ability to separate the issue from one of immigration. I don't think we want to run the risk, as we have continually, of confusing a refugee with an immigrant; they ought to be totally separate. I wouldn't want immigration department officials comparing refugee claimants with other immigrants, to potentially, at least in their minds, categorize them as immigrants rather than refugees. I think we run a danger there of having the process skewed by people who are perhaps saying that these people are jumping the queue or something like that.

If they are a legitimate refugee claimant, they should not be considered in a class with other immigrants. I also feel that transferring that eligibility criteria goes hand in hand with our ability to expedite the process with that initial hearing. If you have all of that power with the IRB, they may then be able to use that to help in expediting that process.

I find items 8 and 9 mutually exclusive. I would agree more with item 9. It's something that has not been pursued to the extent that it should have been, obviously, because we don't have those bilateral agreements, but I'm not sure if anybody has really tried. I'm not sure what the problem is there: whether you just can't find other countries to agree with us or whether we don't want to agree with the provisions from other countries. In any case, it seems to me that if we can get those bilateral agreements in place it would be very useful to all concerned in stopping the movement of these claimants.

The Chair: Sophia.

Ms. Sophia Leung (Vancouver Kingsway, Lib.): Thank you.

I think we should say “include people involved in criminal activities”. That includes everyone, instead of “organized crime”, which I think is too narrow.

I have a little trouble with items 8 and 9 too. I think the “safe third countries” doesn't.... We have not established any clear legal rights or relationships to such third countries.

Also, if you talk about number 9, “the stowaway refugee claimants” are obviously from certain countries, so then you should think about.... They should be designated deported back to the country they came from; that's a logical thing. Instead, we started almost an open invitation: if you come from country A and you land here, then you can be sent to country B if you're not allowed to stay. It doesn't make sense to me.

The Chair: Leon.

Mr. Leon Benoit: I'd like to ask before I start, though, whether we're going to go back to the first part of this report at some later time.

The Chair: Yes.

Mr. Leon Benoit: We can do that...?

The Chair: Yes.

Mr. Leon Benoit: All right.

• 0945

Under part C, the first point there is:

A claimant should be required to be out of the country for more than the current 90 days....

I think it's a good proposal to increase that to certainly more than 90 days; probably a year makes sense. The revolving door thing is becoming a more common problem with the United States. I think it may make the removal numbers look better, but it isn't solving a problem. So I think that would be a useful point.

I want to ask a question on that: are we talking only about people who have been rejected as refugees or are we also talking about people who have abandoned their cases?

The Chair: No. Maybe the abandonment might come thereafter, maybe in the hearings part and/or the other matters we might want to talk about. If you want to refer to them now, that's fine, but I don't think this section deals with abandonment.

Does it, Margaret?

Ms. Margaret Young: No, not as such, but if you for any reason were unsuccessful in your claim you would...[Inaudible—Editor]...that you were rejected; you go away out of the country for 90 days and you can come back and make another claim. That's what this is about.

Mr. Leon Benoit: This is suggesting that whether you were refused or whether you abandoned your claim, you'd extend that period of time beyond 90 days.

Ms. Margaret Young: Sure.

Mr. Leon Benoit: I think it's important that this is included in there.

Item 2: “claimants making repeat claims”...“to consist of a file update” that foresees if any new evidence has been claimed or circumstances change in the country of origin. That one, yes; that's all right.

Ms. Margaret Young: I'm sorry. There's a difference between the approaches of items 2 and 3. The government foresees, opening the file, possibly a submission by the person if there is any new evidence.

Barbara Jackman foresaw a bit of a more structured process, although it could end up to be somewhat the same thing, where you apply for a written leave and you make your case that there's new evidence, that the country's conditions have changed, whatever. Then a board member or somebody would decide whether you could have a new hearing—but it would go on further.

The CIC discussion paper doesn't say what would happen if there is new evidence or a change in circumstances, but presumably they would send it back to the board, although it's not spelled out. It's basically just a slight nuance of difference in how it would work out. The point is that they wouldn't have a chance to access the board...automatically be referred for a full new hearing with perhaps nothing new to add.

Mr. Leon Benoit: Only a review of circumstances in the country that they may be returned to—that seems to make sense.

In the third point, it sounds to me like that's just really more work for lawyers. I can't see how you would expect someone who's applying for refuge in our country to submit a written leave of application; it just seems to be an improper thing to do for someone who really needs our protection. What it would do, I think, is that it would require that you have either a lawyer or a consultant involved in every case—and I mean in every case where this applies. I think it really is a make-work project and I have a concern about that.

On the fourth point, the 30-day time period, I really don't see why that couldn't be narrowed down to the first time of contact, the first reasonable time that a person.... Because at the end of the statement, you say unless it's “subject to compelling circumstances”; I think that does give some discretion to say that this person didn't make a claim the first time they had a reasonable chance to do so, but in this circumstance we believe there was some fear of some kind, either of our officials or a real legitimate fear.

I think there shouldn't be a 30-day time period. If someone is coming to our country to ask for refuge they should be expected to do that at the first point of contact, at the first reasonable opportunity they have to do that, not in 30 days, not so they have time for lawyers or consultants to school them, to encourage them to apply. So I'd rather see that—

• 0950

The Chair: Some of that discussion took place under part D yesterday. I think that point was heard yesterday too.

Mr. Leon Benoit: So I'd like to see the 30-day period removed and something in there saying that they make the claim at the first reasonable time of contact, except in compelling circumstances. You do have to leave some discretion in it, I think, but a limited discretion, I would say. I think that really will help to take out some of the situations where lawyers encourage...where a person maybe had no intent of really...or isn't a legitimate refugee.

I just want to ask you a question, Margaret, on item 5. Who does the exclusion criteria, “should be expanded to include people involved in organized crime”, actually include right now?

Ms. Margaret Young: Right now it includes serious criminals as defined in section 19. What that would add.... It includes serious criminals, terrorists, security risks, etc., and obviously the government has identified a group that is not included in there, and it would be those people who are described. Now we're going with the current law, but you can bet that in the new law there will be an “organized crime” description. So it would be people who

engage in an activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence that may be punishable under any Act of Parliament by way of indictment.

Mr. Leon Benoit: And that's not included as a serious crime under current law right now?

Ms. Margaret Young: No, it's not.

Mr. Leon Benoit: So that's why this has been added.

Ms. Margaret Young: That's right.

Mr. Leon Benoit: That makes sense, I think. How that's defined, of course, will determine whether it's helpful or not.

The Chair: Yes.

Mr. Leon Benoit: In item 6, I believe “the existence of a removal order” should “continue to preclude”, so I disagree strongly with this statement. That has been expressed by others before me.

“Administering the access...criteria”: I completely disagree with this, which I think has been expressed by others. That, in fact, should remain in the department. I do agree with my colleague that probably the IRB is a much more functional organization than the department is right now, but you can see why you have those two separated. I believe the department has to continue to make that decision as to whether a person will be granted a hearing or not. How can you have the body that's offering the hearings making the decision on who gets a hearing and who doesn't? I disagree strongly with that.

“The safe third country”: it has already been brought up, I know, but I'd like a little more information on items 8 and 9. In regard to the provision “should be removed as a dead letter”, I assume the reason.... I don't remember why the Canadian Bar Association suggested that. Is it that they just feel that nothing has happened to it? Probably they would disagree with it on principle. I'd just like to be reminded of why they wanted that dropped, for what reason.

Could you tie that in with item 9, too, Margaret, with what's meant there about safe third countries being designated in Europe and in bilateral agreements? Canada has been trying to get agreements with several countries, the United States of course being probably the most important, and hasn't had a lot of success so far.

Ms. Margaret Young: Yes, the way it's phrased in item 8 by the CBA it looks like it's a mere practical objection—it hasn't been used so let's clear out the deadwood—but in fact it is still a principled objection.

The immigration department, refugee lawyers, and the refugee advocacy committee, right from the beginning, have been opposed to the policy of safe third country return that's in the act, which has never been operational. But it has been there every time the act has been revisited; it has been changed to streamline it, to make it more workable if it ever became operational. They've been very opposed. That's one of the things they've opposed right from the beginning.

On your question about item 9, keep in mind where this suggestion comes from. It comes from the Shipping Federation of Canada. Their experience is largely but not exclusively with stowaways on the east coast. Many of them are Romanians. They come through ports in Europe. They come through Amsterdam and through Liverpool.

• 0955

So they're focusing on Europe, and they really would like to see safe third country return agreements with those countries.

That would mean, if the law could ever be operational and they could be designated, that Canada would not have to examine their claims. They could be returned to those countries under these agreements. Of course, the shippers would then not have to pay the costs of processing, the costs of removal. That's where they're coming from.

You will notice they're realistic. They realize that in 13 years we haven't been able to reach agreements and make this provision operational. Alternatively, then, they would put stowaways into another fast-processing track, as has been suggested by others. If you don't return them for some other country to do their claims, then, okay, get them through fast and obviously they'll save this money.

Mr. Leon Benoit: Perhaps I could just follow up a little bit. Ms. Leung made an interesting comment that maybe we shouldn't be looking at the safe third country concept, but rather, at least with countries whose systems we trust, we should be looking at a mutual agreement where, even if someone has passed through a country that would be considered a safe third country, they would be removed immediately to their country of origin.

There is some merit for discussion. I'm not saying I support it, because I don't know, but I think it's important that we do discuss this as we're talking about the safe third country aspect. It may be an alternative. At least it would have to be through bilateral agreements. With the United States and some other countries it might make sense.

The Chair: We deport people now to the countries of origin if in fact one can prove their life won't be at risk or threatened, but your points are well taken with regard to those kinds of negotiations between countries of origin and third countries. Those are bilateral and multilateral agreements that I would hope we would do more with.

Mr. Leon Benoit: Yes. Of course, the problem with it is that you remove the penalty for not having a system that does the job well enough. That is certainly a drawback, and I'm not sure it would work.

The Chair: Okay—for now.

Jean, then John, then back to Andrew. Then, I think, unless someone else has something to add to this section, we could just wrap this up.

Jean.

Ms. Jean Augustine (Etobicoke—Lakeshore, Lib.): I think most of the points I was going to make at the time I indicated have already been made now.

But I want to repeat that I agree on point 5. Maybe we can look at the CIC paper to the committee again, Margaret, and see whether they talked about organized crime in particular or whether it was criminal activities involvement.

Ms. Margaret Young: What they would have in mind would be what I read out, “engaged in a pattern of criminal activity that would involve an indictable offence in Canada”. Part of the reason you need a section like this one there is that you can't always produce a conviction for people, and yet you know they're part of a group. They could be part of a gang, part of a foreign group, and if you can prove, on a balance of probabilities, they are part of that gang, they will be excluded from Canada and under this would be excluded from the refugee determination system.

I think they've recognized that this is perhaps a loophole, that people should not be getting in if they fit that description.

Ms. Jean Augustine: With regard to item 7, Joe, I somehow want to agree that no category of person should be excluded from a full hearing. I'd like to see them go from the CIC to the IRB. I tend to be on the side of that discussion, that they go towards the IRB. I think it was well expressed by my colleague...that you want to take away from it.

Right now, I think, if you talk to the ordinary person on the street, there's a whole set of confusion around immigrants and the issues around immigration appeals and all the things that happen within that system and the IRB. I think if we could separate the two and put the refugee or the person claiming refugee status into the IRB system as quickly as possible, and away from the CIC, maybe that eligibility factor could also cause some clarification for people who are more or less confused about the issue.

• 1000

Mr. John Bryden: Do you mean to include the uncooperative person as well, though, for a full hearing, a person who refuses to disclose their identity?

Ms. Jean Augustine: No, I think we heard that yesterday—

The Chair: They're not going to be part of the system.

Mr. John Bryden: Okay.

The Chair: So far it's on division, according to those who have spoken on this issue—

Mr. John Bryden: On division.

The Chair: —as to whether or not it's CIC or IRB. When we get to fully exploring that aspect, obviously we're going to spend a little more time. Perhaps when we see the whole system and how it's all going to operate.... Right now we're putting these pieces to the puzzle. It may very well be that we'll have to see what the puzzle looks like before we start rejigging.

Ms. Jean Augustine: I was hoping that the individuals who presented on behalf of the organizations had various reasons why they would say the CIC would propose that receiving or transferring—

The Chair: We may want to take the time ourselves just to go back to the testimony to see what those compelling reasons are, because it seems to me that's going to be one of the critical issues we'll have to give some additional thought to.

Ms. Jean Augustine: My final point is with regard to item 9. I think that's an important piece. It's too bad we don't have a Guam like the U.S., or some offshore place where we can—

Mr. John Bryden: Devils Island.

The Chair: At one time we could have—it was called the Turks and Caicos—but not any more. They're making too much money.

Ms. Jean Augustine: We lost that opportunity.

Mr. John Bryden: It was called Newfoundland.

The Chair: We may want to do a trip and define that perfect island that you might want to call Canada.

Ms. Jean Augustine: Exactly.

Mr. John McKay: You'd better leave soon.

The Chair: No, I just think that's the result of...[Technical Difficulty—Editor]

Mr. John McKay: No...[Technical Difficulty—Editor]...trip.

Ms. Jean Augustine: Maybe Centre Island.

The Chair: John, go ahead.

Mr. John McKay: I wanted to look at item 3 of B and items 4, 5, and 7 of C. It seems to me that the overwhelming testimony was that you had to shrink the time in the system. If there's been any element of compelling testimony in this whole exercise, it's been that the system takes too long.

I thought we should really give serious thought as to how to use that 30-day period, which I think is arguably as good a period of time as any, in order to eliminate people from going into the system and also to, in effect, work against institutional inertia and against those who would try to subvert the system in one way or another.

So the first thing I would go with is item 3 of B, which is of the obvious.... I just don't see any point of going through these exercises, putting through exercises in IRB, if in fact it's going to be clear that people have a legitimate refugee claim. I think that eliminates quite a fair number of people from the system.

Second, I would link the filing of the claim and a conditional removal order together so that if an individual comes in at Pearson or wherever and says “I'm a refugee”.... They have 30 days to file their claim right now. The testimony, as I recollect it, is that a number of the problematics just disappear. We lose complete track of where they go and have no idea. Maybe that in some perverse way works. Hopefully we would also think that maybe it's not such a bad idea to have some basis where if in fact a claim was not filed within 30 days a removal order was executable after 30 days.

So I would link the two together. I would say it's both the carrot and the stick—that you file your claim within 30 days and this removal order is not executable, and if you don't file your claim within 30 days this removal order is executable. Now, obviously this is going to be subject to some controversy and some review, but it seems to me it tightens up the system somewhat.

Simultaneously, on the department side, to give them a bit of a whack, I would have a rebuttable presumption that unless the department shows within 30 days that this individual is not eligible, then the person is eligible for going into the system.

• 1005

Again, we remove all this nonsense about who's in, who's out, etc. I would make it so that you prove, your department proves, that this person is not eligible to go into the removal system. I would say to the department, “You have 30 days to demonstrate that they're not eligible.”

I would leave the criteria somewhat similar—medical and criminal. I would expand “criminal”, because I think you're getting into arguments as to whether one's a terrorist or whether one is just a serial criminal, or a freelance criminal. That's a mug's game. You're either a criminal or you're not a criminal. So I would leave those criteria. I would expand those criteria but leave them the same, and if the department didn't prove it in 30 days, then that person is in the system. Now, that could still be a rebuttable presumption afterwards.

I think that's how you link those things. That's how you use your first 30 days, which I think is your critical period of time.

The Chair: Leon.

Mr. Leon Benoit: I'd like to comment first on the statement John made about the 30-day time period. In item 4, what we're talking about is simply saying, “I'm here, I'm a refugee”.

Isn't that what we're talking about? Isn't that making a claim?

The way you were talking, John, I think, you want anything that's going to be done to present the case to be ready in 30 days. Or that's the way I understood it.

Mr. John McKay: A lot of people are disappearing in that 30-day period.

Mr. Leon Benoit: Yes, so of course what should happen is that everyone who comes into Canada legally should be detained—that's something I'll talk about when I go back to the first part again—and then speed up the system dramatically. I mean, they're not going to disappear if they're detained. So that's certainly one way of dealing with that.

Mr. John McKay: No, but detention is—

The Chair: Are you saying you want to detain even legitimate refugees?

Mr. Leon Benoit: Well, the people who come to our country illegally should be detained. The process determines—

The Chair: No, no, I'm not trying to debate; I just asked for a clarification. You weren't here yesterday, and if we're going to go back to it, I just want to know who you want to detain—everybody or just illegals?

Mr. Leon Benoit: No, everyone who comes to the country, everyone who makes a claim in Canada who's come to the country illegally; the others are chosen from somewhere around the world, from camps. Of course, those people are—

The Chair: That's different.

Mr. Leon Benoit: Yes, that's different. Exactly. So what's the—

The Chair: No, no, there are some who come legitimately to this country who are not illegals and who want to claim refugee status. If they're all eligible under the definition of—

Mr. Leon Benoit: They come under some type of permit, you're saying.

The Chair: Yes, or—

Mr. Leon Benoit: No, I'm talking about those who come—

The Chair: —they have visas, too.

Mr. Leon Benoit: Yes; those who come illegally.

My comment, though, is on the last part of item 9, that “stowaways should be processed in Canada as a high priority in order to reduce the time spent in Canada”—I agree with that—“and to deter others from coming.” I certainly agree with that.

Of course, if you detain everyone and speed up the process for everyone, it means putting more resources up front, but it will save money overall as well. If you do that, then I think you've accomplished that goal in a broad way, and not just for that particular group—stowaways.

The Chair: Mr. Telegdi.

Mr. Andrew Telegdi: [Technical Difficulty—Editor]...regarding Australia, where they were kept in detention, I think they said, for 19 months or something.

About a year ago there was a case in Ottawa that I think demonstrates probably fairly well some of the things we're grappling with. It was the case of somebody the department decided was excluded from the system because they were committing crimes in Canada. Some of you might remember the case. It involved a Romanian.

The court ruled—it took a fair amount of time—that they could not be excluded. You know, that shows you that this in turn really extended the timeframe in which that individual would go through the refugee claim, because they did go through the full court process.

So that was a really dramatic example of how it would increase the timeframe involved. I think we should probably get some evidence in that area.

• 1010

Now, John was also talking about the department having 30 days. That's one of the places where we can save time, once the refugee claim is made, unless there are compelling reasons not to. Those files then should be sent over to the IRB, because right now they're in limbo, and they can take a number of months. So there should be some performance criteria, going from the immigration department over to the IRB, with a file, because until the IRB gets the file they cannot get to work on it. So we want to make sure we speed up that process.

The Chair: John.

Mr. John Bryden: Just as a personal point for you, Margaret, when you consider criminal activity you should consider also the context of civil war and freedom fighters and that type of thing. When we use the words “criminal activity”, I don't know how far that should go to embrace what may be people who have engaged in one side or the other in a civil war. In other words, they've engaged in military activity that involves killing people.

The Chair: A point of view...[Technical Difficulty—Editor]...atrocities.

Mr. John Bryden: Well, I point out to you that someone like Nelson Mandela, for example, who is regarded now as a great hero, could be excluded for his activities in South Africa. And maybe rightly so...but it's just something to watch as you phrase that particular clause.

The Chair: Okay. I think we'll wrap up this section for now.

Let me just say that I think, based on what everybody has said, I'm in agreement with most of the points. I too have not made a determination, and yet I seem to favour the idea of the IRB being that gatekeeper to access to the system and CIC.

I also think—and an awful lot of us have spent some time on this, including Sophia—that, obviously, with regard to restoring public confidence, we have a front door that people are trying to get in, but we have this back door, and it's open. Some people are trying to get through that back door in a number of different ways.

So to restore this confidence, shutting the back door becomes a priority, and that gives people, or at least the Canadian public, some degree of confidence that we have control over this system.

The system is working pretty well, but it needs improvements, obviously. The thing is, how do you close that back door? Yesterday we talked about a pre-screening type of thing, where in fact it's like a big filter and those who are suspected of being criminals or security or health risks or who can't give you a first good story, or whatever the case may be, would be left over here, and then the other people, or the great majority of them, would then go to “How do you access the system?” That's what we're talking about today.

I think we need to do a lot more bilaterally and multilaterally, even through the United Nations, because this is a worldwide phenomenon. It's not just a Canadian phenomenon. Therefore, we need to impress upon the government that it becomes a high priority, bilaterally as well as multilaterally.

The other thing, too, is sending out a signal—and not necessarily to the poor people who have been victimized or who have in fact come with boats run by smugglers and traffickers—that we need to do something about organized crime, or to try to filter out those kinds of people.

More importantly, though, whatever section it comes to, we're talking about maybe imprisonment and/or big fines or confiscation of boats or something like that. It may very well be a way of sending that important message to those very traffickers in people that, hey, do you want to take that risk? If you manage to coerce a captain and crew to take a whole bunch of people for the purposes of dropping them off someplace, well, then, maybe you'd better be prepared to be part of this scheme—going to prison, paying a fine, losing your boat. It's the big-stick approach.

Mr. Rob Anders: I have a great optic. You could seize these boats, take them off into the Grand Banks into the international waters, and sink them to create these rustbuckets that could tear up the international nets dragging off the Canadian coast.

It's just a thought. I didn't—

Mr. John Bryden: A great fish habitat.

The Chair: If Mr. Tobin would go for it, it would be magical.

Mr. Leon Benoit: Just for the record, he was smiling when he said that.

The Chair: Yes, I know that.

Ms. Jean Augustine: Reality check!

Mr. Rob Anders: No, seriously, it could work.

The Chair: I don't know—

Mr. Rob Anders: Seriously. The people of Newfoundland—

The Chair: Well, I didn't go quite that far. I don't care what you do with those boats.

Mr. Rob Anders: No, it's true.

The Chair: For now let's at least confiscate them or whatever.

• 1015

Lastly, a lot of you have talked about how quickly we should process the paperwork with regard to the IRB—30 days—and all other those provisions with which I agree totally. I think we've made some pretty good headway so far on the access criteria. Obviously there needs to be a lot more discussion, but at least we've had this preliminary one with regard to the access criteria.

Let's move on, then, to the hearing aspect of this system. There was an awful lot of testimony on that, and some points have been put down. Let's start preliminary discussion on the hearing stuff.

Mr. Limoges and then Mr. Benoit.

Mr. Rick Limoges: With regard to the first point, I have some concern about time limits being established in the legislation. My concern revolves around what happens if those timelines are not met. It's reminiscent of what we've seen in the court system, where criminals are let loose without a trial because it took too long to get them to trial. I wouldn't want a situation to happen where our decisions are being made for us simply because of the inability to meet timelines. That I find problematic.

In the second point, to me it's obvious, once again, that the shippers are concerned about their costs. With regard to their comments here about giving priority to stowaways, again, they're trying to come up with anything that would be a deterrent to stowaways. We should be mindful of that. They do have some real concerns there as well.

Item 3, with regard to war criminals, is a touchy issue in that giving them speedy processing might be part of it. In the meantime, we also have to consider detention and removal, and if there is removal, to where. If you remove them to the wrong place you're helping them to flee, whereas if you're removing them to another place, it might be to face prosecution. It comes into a lot of the international legislation and treaties and so on that we have to be mindful of.

The Chair: [Technical Difficulty—Editor]...in the first instance would have caught some of these, especially if it's known internationally. There's international cooperation in some of our intelligence agencies. That might very well be a good question to ask CSIS when they come to see us on Wednesday.

Mr. Rick Limoges: Yes.

I think we'll find consensus on item 4.

With regard to point 5, certainly there has been a lot of concern about the appointment process, that it ought to be merit-based. I certainly agree with that. Perhaps setting up rather than changing the method of appointing people, we could also look at minimum eligibility criteria to qualify for an appointment. We certainly want to make sure that the people making these decision are properly qualified from the get-go.

In point 6 I agree with the statement from UNHCR that if we're going to expedite the process and have more hearings by a single officer, then an appeal on the merits is certainly in order. I understand that to mean there would be some professional reviewing the information without necessarily another hearing taking place.

Those are my comments.

The Chair: Leon.

Mr. Leon Benoit: With regard to the hearings, I have a question, Margaret, if I might. In your statement, what do you mean by “time limits”? What would happen if that set amount of time was exceeded? Just explain a bit what you're getting at here.

Ms. Margaret Young: Let's say you had a legislative time limit such that the board was required to dispose of claims referred to it within six months or something like that. I think the point was made over here that it's either not enforceable or it has the effect of depriving the board of jurisdiction, which you don't want; you don't want these people in limbo without a decision. So I'm not quite sure what you've gained.

When the discussion was going on I wrote a note to myself, saying why don't we remind the board that their legislation already says that the hearings shall be held in an expeditious manner—they're already told to get on with it—rather than trying to set a time limit that might be some sort of compromise?

• 1020

Mr. Leon Benoit: Yes. I can't see how it would operate.

Ms. Margaret Young: I can't see how it would work either.

Mr. Leon Benoit: Certainly within the board they set targets for their processing times already. Maybe those could be focused on a little more, with some accountability in that regard. There has been some, but I think there could be a lot more. I just can't quite understand how that would work.

Regarding refugee claimants from non-refugee-producing countries, in item 2, I agree they should be given a priority. I do believe, though, as I've said, the system with more resources focused on the front end of the system.... I believe you could shorten the times for the hearings to the extent that the priority treatment might not be all that much different. I believe it can be sped up dramatically.

Some argue that you can't get the security checks and stuff done, and in some cases that's so. There would be those exceptions to the rules. But I believe an awful lot can be done even within the reality of having to have the security, the identification, and all of that done.

I think that's used as an excuse far too often, in fact, but I do agree that we should speed up the claims, give them a priority. They could be part of that expedited process for people coming from non-refugee-producing countries.

The bottom part of that point, though, is, “desire to prioritize understandable, but may be unfair to others required to wait longer”. Again, if you speed up the whole system and put more resources at the front end so that these hearings take place much faster—it should be a matter of weeks, not months, as it is now—then you've solved that problem. You're not having people wait an unreasonable length of time.

Of course, I do believe, and it's our party's stand, that anyone who comes to the country legally should be detained until their hearing is completed. That requires a quick hearing. What's happening now, where people have been waiting six months in detention awaiting the outcome of their hearing, is absolutely unacceptable.

That's why we need that appeal—I think it's referred to in a later point—in the process, a quick appeal that could be done by one individual, a highly trained, very knowledgeable, experienced person who right within the IRB would carry out an appeal. We wouldn't have this nonsense of waiting months and months for an appeal to the Federal Court. All the Federal Court can do is look at the evidence that's been initially presented by the officer in the first place. So really, that would help solve this problem, and I think it would help deal with it in quite a dramatic way, quite frankly.

To item 4, that the IRB “should make more use of the expedited process”, I say yes, but again, it wouldn't mean as much if the whole system were sped up quite dramatically.

With regard to point 5, I guess the Reform Party has been calling for six years to have board members appointed on merit rather than political connections. So let's go with that, absolutely.

The Chair: Some are on merit, though.

Mr. Leon Benoit: They're made based on political connections. Some good people have been appointed. I'm not arguing that point. We have some really good people in the system. In fact, I do believe the system within the IRB has become a much better system. In the last few years there's been some good progress made. So I'm not saying that system doesn't work. It's the same as appointing senators. Some excellent senators are appointed, but that doesn't mean the process is correct.

The Chair: A case could be made for members of Parliament, too, as a minimum requirement.

Mr. Leon Benoit: Yes.

In terms of the minimum requirement, I certainly hope.... You know, I really do caution to make one of those requirements.... If someone is a lawyer, I think that causes some real problems. Lawyers are trained to have a certain way of thinking in law schools across the country, and I think that could be a problem in these positions.

So don't focus more on getting more lawyers on board. I don't think that's the answer. But I'm not saying some lawyers couldn't do a good job.

• 1025

I did have a couple more points.

The Chair: I thought you might.

Mr. Leon Benoit: Item 7 reads: “The Minister's representative should be given the authority to intervene at any hearing as a matter of right.” I would like that explained. I don't know quite what's meant.

Ms. Margaret Young: Right now the minister can give evidence at any hearing. With the permission of the board, they may examine claimants and other witnesses. They have a right to participate fully only when they notify the refugee division that the exclusion clauses are an issue. The exclusion clauses are those clauses that are decided by the board where they have the jurisdiction to say, yes, you may be a refugee, but we're not going to recognize you as a refugee because you have committed a serious non-political crime, or you have committed an action that is against the purposes and principles of the United Nations.

In those cases the minister has full right to question, cross-question, and present evidence. The only other right they have is to come in and give evidence. In other words, they can't question the claimant unless the board explicitly gives them permission.

The discussion paper says to get rid of all that; if we want to be there, we'll be there, and we should have full rights to participate.

Mr. Leon Benoit: Okay. I have no problem with that except for one thing. Right now the department commonly holds up the process when they're involved in cases. I'm thinking more in the appellate and the....

My, I've forgotten the other branch. It's not so much the refugee determination—

Ms. Margaret Young: The appeal division.

Mr. Leon Benoit: —yes—but the department has a reputation, which I hear about quite often and have seen at hearings I've been to, for really holding up the process. They're just not available on that day and all of that type of thing.

Something that would have to be clear is a condition for just what amount of time the department would be allowed to hold up a hearing for, so that they might intervene. I think that would have to be explicit in any kind of a proposal along that line. Otherwise, we will have the IRB paying the price, in terms of their performance standards, for a departmental intervention.

I think that would be really important in there.

The Chair: John Bryden.

Mr. John Bryden: Very quickly, item 1, no; item 2, yes; and items 3 and 4, I don't think they're worth recommending at all, because they're obvious. We obviously want to expedite war criminals, and the IRB should use that process. I don't think they merit even entering.

Now, as to point 5, I think it's too much responsibility to place on one person to decide the future of people who have fled a country and are seeking asylum here. So I'd be in favour of retaining the quorum at two.

That reflects on item 8, which I would say no to. If you have two hearings for the refugee cases in the first place, then you already have a mechanism for reviewing negative decisions—i.e., you have two people rather than one. So as long as we have a minimum quorum of two and we want to expedite the process as much as we can, we don't need 8.

Item 6, yes; item 7, yes; item 8, no comment, because I don't quite understand it; and as to item 9....

Actually, 9 was misnumbered there, Margaret. Do you see that? It was item 9 I was referring to.

Ms. Margaret Young: Yes.

The Chair: Some of us could figure that out.

Mr. John Bryden: I've been staring at this a long time and I didn't figure it out.

And finally, to item 10, no.

The Chair: Okay.

John McKay.

Mr. John McKay: Everything starts with item 6, and I support that. I think it should be a consolidated review.

With respect to items 4 and 5, to say that we want an expedited process is a little like a motherhood statement; it doesn't mean anything. However, it should be a working presumption that the people who are going to be hearing these cases are qualified. I would argue for the one-person panel unless you can make a demonstrable case that it should be a two-person panel.

• 1030

The illustration I use is criminal court. If I pull a gun on John here—

The Chair: I would stop you.

Mr. John McKay: I may have a lot of support.

Mr. Leon Benoit: You don't get support from me.

Mr. John McKay: I'm charged with a serious criminal offence. I get one judge.

Mr. John Bryden: Well, that's true.

Mr. John McKay: We work on the presumption, and I think a valid presumption, that the judges we have in our criminal court system are qualified people. I think once you establish that you have qualified people and you have confidence in those people, then the operative provision should be that it's a one-person panel unless there's a demonstrable reason for two.

I would argue that the presumption should be in favour of lawyers. I realize that's not exactly a politically correct view around here, since lawyer jokes have become the equivalent of dumb blonde jokes. Having said that, I don't know of any other criteria.

Now, absent any legal qualifications, am I qualified—

Mr. John Bryden: Mr. Chairman, I could do a good job.

Ms. Jean Augustine: A community person could do a good job.

Mr. John McKay: Community persons, bankers, construction people, etc. If you can come up with other criteria, I'd be interested to hear them. But some of the most scandalous things that go on in the immigration community involve people who hold themselves out as immigration consultants.

Ms. Jean Augustine: There are some lawyers who charge exorbitant rates.

Mr. John McKay: Again, I'm not here to defend my colleagues, but if in fact any of you knew anything about the law society you would know that it is hated by lawyers because it's an organization that reviews the behaviour and qualifications of lawyers, etc.

Before you go too far down the path of saying this is open to everybody, I think you need to think again. I think you need to give a really serious review of what the law society brings to the table in terms of its qualifications of people. When I pay my dues, there is a statement to the community at large that I am qualified.

The Chair: We're not talking about the law society of Canada. There are some people who disagree with you, but go on, John.

Mr. John McKay: My argument is that a person who becomes an IRB person should be a lawyer unless there is a clear and demonstrable system by which a person can be demonstrated to be qualified otherwise. This is because there is a review process.

That's my argument on that one. As I say, it starts with item 6 and works back to the presumption that if a qualified person is hearing cases, it should be one person.

I don't agree with item 8, which is now 9. It's just more review on review, and in my view the appeal to the Federal Court is perfectly adequate. It should be reviewed on law alone.

Again, I use my criminal law analogy that if I pull a gun on John and the case goes against me, I have an appeal on law. I don't have appeal on the merits. I don't have a review of whether the judge made the decision properly in the first place. I have a review as to whether the procedure was appropriate and fair.

As to items 7 and 8, I think the minister, subject to Leon's comments, which I think are appropriate, should have as a right the ability to intervene in any case, obviously, as time is important. The minister in this instance is giving up the right to risk review and giving up the right to humanitarian, compassionate.... I think the quid pro quo here is that the minister has, as a right, the opportunity to intervene in any hearing.

The Chair: Andrew, then Rob.

Mr. Andrew Telegdi: With regard to the law society, I think both paralegals—

• 1035

The Chair: I don't want to hear any more about the law society. We're talking about merit and people who have merit. I don't care if they're insurance executives like me. It doesn't matter.

Mr. Leon Benoit: You're a lawyer, Joe.

The Chair: No.

Mr. Andrew Telegdi: Just as a matter of information, Mr. Chairman, you have requirements to meet before you can be appointed. That was put in place with the minister's advisory council in 1995. I don't think we should ignore that.

The other issue is that you're always going to have appeal if you go to a one-person panel. You're going to have an appeal probably within the board itself. I know that too gets mentioned later on.

The Chair: Oh, no. I think that was inferred in item 6.

Mr. Andrew Telegdi: Yes.

The Chair: Right—as in one internal appeal, which everybody suggested, once you consolidate the system.

Mr. Andrew Telegdi: Okay, but it wasn't implied.

The other issue—and it's mentioned later on in the paper—is around whether or not we get refugee claims from non-refugee-producing countries. Right now we don't have a way of differentiating whether or not you come from a dictatorship or a democracy. For instance, we had all these cases of Romanies coming from the Czech Republic.

Mr. John Bryden: Yes, good point.

Mr. John McKay: Where are they coming from? Are they coming from a democracy or are they coming from a...?

Mr. Andrew Telegdi: Well, they were coming from a democracy. The Czech Republic is also a member of OSCE, the Organization for Security and Co-operation in Europe, They're members of NATO and they're going to be members of the EU. There are human rights standards that those countries must meet. I think we should be pushing for them to improve their human rights records, because it's not just going to be the Czech Republic. It can also be Poland. It can also be Hungary. It can also be any of the new former European countries that are going to be coming into the system because of the way you have minorities all over in the former eastern European countries.

It's critical that we keep in mind that we're always going to have to be pushing human rights, because if we don't, we're going to have a major problem.

The Chair: You're not...we put that as a caveat into the act because one person's human rights...dictatorship or democracy. I'm not sure where you're coming from, Andrew.

Mr. Andrew Telegdi: No, because when you're—

The Chair: I'm talking about the individual as opposed to the state. If the individual says they've been persecuted by a dictator or by a democracy, aren't you going to look at the individual as opposed to making a determination as per country? Because if that's the case, we're really going to have a list of good countries, bad countries, maybe-so countries, and everything else.

Mr. Andrew Telegdi: Well, we say that. We also have the suggestion made later on in the paper, Mr. Chairman. I think at this point it—

The Chair: There is, yes.

Mr. Andrew Telegdi: Okay. I think that's important, because you have to recognize that these countries are supposed to have certain standards. Seeing that they're emerging democracies—

The Chair: We don't do that for trade or foreign aid or whatever.

Mr. Andrew Telegdi: Well, does it make a difference between the Czech Republic and China in terms of human rights and what kind of impact we can have? I'm underlining that because that's really important.

With regard to point 7, which Leon expressed some concerns about, there can be concerns if you have the department intervening too often. I know there was a Tibetan case that went back and forth. Sometimes not the minister but a bureaucrat or civil servant goes forward and decides they're going to intervene on a case.

I know in terms of the courts, the judge pretty well runs his court and the crown prosecutor and the defence attorney all know what the decorum is. I don't think there is the same decorum from the department to the IRB person who's having the hearing. I think we have to make sure that's reinforced so that there's the same kind of relationship between the defence attorney and the department as you'd find in a court in terms of respect for the person sitting in judgment. We want to be careful that item 7 does not become something that will lengthen cases, and it very easily can. That's a very touchy point.

That's it.

• 1040

The Chair: Okay. Rob.

Mr. Rob Anders: Thank you.

In point 1 of D, I think we could have a situation where we're creating walk-frees, people who, if they're not dealt with within a certain period of time, are able to say “I wasn't given due diligence”, and all of a sudden get—

Mr. John Bryden: [Inaudible—Editor]

Mr. Rob Anders: Yes. I think we're setting ourselves up for potential problems with that.

The Chair: Are you talking about timelines?

Mr. Rob Anders: Yes, time limits. It's right in item 1. I think we're opening ourselves up to problems there.

I agree with targets. I think we should do everything we can to set tight targets. I just worry that if we have a prescribed time limit in legislation and it's not lived up to because of whatever situation—maybe there's a glut in the system, maybe the resources aren't there, or whatever the situation—I would hate to have there be a “Get into Canada Free” card all of a sudden. Because if you know you can bulge the system in some way...and it winds up doing that.

With regard to the appointment process, point 5, I agree with a merit-based process. I guess it's just a question of what criteria. I'm sympathetic to what Mr. McKay was presenting, but I think he well knows there'd be some concern in the community if we said that only lawyers could do this. Therein lies the problem.

I think we have to set some type of criteria there, but we can't restrict it to lawyers only. I think that would be a mistake.

Mr. John Bryden: How many do you think there should be on the panel, one or two?

The Chair: I'm the chair here.

Mr. John Bryden: I know, but he's—

Mr. Rob Anders: I agree with the idea that if we are satisfied with the qualifications of somebody sitting on the panel, then we shouldn't fear having one person making the decision. Likewise, John made the point that we have one judge in the cases of criminal matters of life and death and incarceration and everything else in this country for our own criminal system. It is just a question of the quality of the people who are there. If that's merit-based and if we continue to see improvement in that, then people won't fear that.

Now, there are two item 8s here. I'm going to call the second 8, then, item 9. I think Mr. McKay was making reference to “8” when he was actually referring to “9” in one of the circumstances.

Mr. John McKay: Yes.

Mr. Rob Anders: There, if we have some type of review of negative decisions by the board, I think what we're doing is opening up the system to becoming more complex. I think we're leaving open the potential for another loophole. I really think the whole purpose here is to try to eliminate the loopholes, not to open up more.

I'll leave my comments at that, because I've generally agreed with a lot of the things that have been said.

The Chair: Good.

Jean, then John.

Ms. Jean Augustine: I'll be brief.

First, I concur with my colleagues on the remarks about items 1 and 2.

I again want to add my support to item 5, that the normal quorum be reduced from two to one. I think this would definitely help to speed up the process.

Item 6 is okay with me.

Item 10 I disagree with simply because I've been trying to figure out who are the parties. Usually when you talk about dispute resolution there are two parties, and I'm not too sure who the two parties are in this process. So unless there is some explanation about 10, I have some problems with it.

The Chair: Barbara Jackman's talking about her so-called alternate dispute resolution system, which is used in some other systems, some other venues, and may very well be incorporated into her system.

Mr. John McKay: This is as you're going to the hearing? Is this a pre-hearing?

The Chair: I don't know.

Margaret?

• 1045

Ms. Jean Augustine: This is why I was asking for some clarification on this.

The Chair: We didn't ask her about it because none of us were that impressed with it. You might want to review her testimony about it. It's the new phrase of the 1990s, or of 2000—the alternate dispute resolution system for everything.

Mr. John McKay: The fear there is that lawyers just shut it down again and turn it into another pre-hearing mechanism.

An hon. member: An extra step.

Ms. Jean Augustine: Again, I want to speak to the whole issue that we need good representatives of Canadian society—people who can make sound judgments, who can write good decisions. That does not necessarily mean lawyers have those—

Mr. Rick Limoges: Should we be excluding lawyers, then?

Mr. Leon Benoit: I think so.

The Chair: Okay.

Ms. Jean Augustine: So no lawyers.

The Chair: On division about lawyers.

John Bryden.

Mr. John Bryden: I have just a brief remark, Mr. Chairman.

There's an important point behind that debate. I think John is making a little mistake here, because the IRB is not equivalent to a court of law. The standards of evidence are entirely different. The adjudicators on the IRB have to hear testimony, and when people have no documentation, no formal proof, they have to make judgments based on their wisdom and sagacity.

In the legal trade, many lawyers—and this is not to disparage lawyers, but of course many of them might go into real estate or something like that—never experience the type of interaction with human beings that might come from the teaching profession. A lawyer could be a good choice, but they're not the only choice.

To reiterate, it requires a lot of sagacity and compassion to be a good adjudicator in this particular instance. That's why I prefer two, because the quality of the evidence coming before these panels is not of the same quality as that before a court of law.

Ms. Jean Augustine: You don't want to make it a legalistic system.

The Chair: Sophia.

Ms. Sophia Leung: Thank you, Joe.

For item 1, I think we should set time limits because right now it is so slow, and we are aware that we need to target time.

With regard to item 5, I have nothing against lawyers, but I think one should be adequate. That's another process that should be speeded up, and it will require more time with two persons.

I do agree that we should select appropriate people, including lawyers, and other people as well.

The Chair: I note nobody's talked either for or against politicians, or former politicians.

Ms. Sophia Leung: With regard to items 7 and 8, I think you can essentially combine them into one.

I have a little trouble with items 9 and 10. I'm not quite sure about this appeal division; are they the same people from the IRB? Can Margaret explain that a little bit more?

The Chair: Margaret, do you want to talk a little bit about that one?

Ms. Margaret Young: Well, we'll find out for sure if they put it in the legislation for the first time. They've resisted for over 10 years. I would presume that if you're going to have an internal appeal mechanism or review mechanisms you would create a body, a dedicated, specialized body of your best people, and you would have them sit perhaps in panels of three, or maybe one. Maybe somebody would do a preliminary for whatever.

You would allow the claimants to submit any new evidence or any statement they wanted where they thought there had been an error, and you would have those people do a paper review. It would not be, I would think, at random. It wouldn't just be who was free and not doing a hearing. It would be a dedicated group; otherwise, it wouldn't have the consistency and the quality you would be looking for.

But that's a guess. There hasn't bee a model because we've never moved this way.

The Chair: On a point of order, now I'm getting confused. I thought there was a big difference between the appeal mechanism that we were talking about in point 6, the internal, and something that the lawyers were asking for in point 9, which was something else, over and above the internal.

• 1050

Mr. John McKay: I understood item 9 to be to the federal—

The Chair: Yes, that's what I—

Ms. Margaret Young: No, it's the same thing.

The Chair: The same thing to what, item 6?

Ms. Margaret Young: The main point in 6 is to consolidate—

Mr. John McKay: One hearing.

Ms. Margaret Young: —all your risk decisions.

The Chair: Yes, but it hasn't an effective appeal mechanism.

Ms. Margaret Young: But the UNHCR says that's okay, that if you're going to do that, make sure you have a proper second guess at it, because where you had more decision-makers in the past—

The Chair: No, we understand that.

Ms. Margaret Young: So it's put in there as just a pointer.

The Chair: But item 9 is something over and above 6.

Ms. Margaret Young: No, it's the same. They're still talking about the same stuff.

The Chair: Okay. Well, then, I don't know why we should, because it's confusing me. I thought it was—

Mr. John Bryden: Yes, that's a good point, Joe. They were asking for something.

Ms. Margaret Young. No, no. I'm saying it's the same point. It's the same thing. It's just done in two different contexts.

The Chair: Okay.

Mr. John Bryden: [Technical Difficulty—Editor]...in agreement with item 6 and disagree with 9.

An hon. member: Yes, that's true. All of us so far have disagreed with item 9 but have agreed with 6.

Mr. John Bryden: I agree with the first half of 6; I don't agree with the second half of it.

The Chair: So nobody wants another stage over and above an internal one, referred to in item 6.

Ms. Margaret Young: I didn't take it that way for anybody.

The Chair: We all took it that way, because we thought it was all different from 6.

Mr. John Bryden: Yes, the first half of item 6—

The Chair: Rather than confuse us, why don't we just strike...? I don't know; this is what they said.

I'm sorry, Leon. You're next, anyway.

Sophia, did you have any more?

Ms. Sophia Leung: So what's your answer, 9 or 10?

The Chair: Items 6 and 9 are supposed to be the same.

Ms. Sophia Leung: But item 9 is repeating 6, right?

Ms. Margaret Young: What I have understood is that, with a couple of exceptions, most of you have supported both moving the quorum to one and having an internal review of the board.

The Chair: Yes.

Ms. Margaret Young: That's my understanding.

The Chair: But the item 9 everybody was talking against you're saying is really 6.

Mr. Leon Benoit: No, because item 6 doesn't talk about an appeal process in the board.

The Chair: Yes, it does.

Mr. John Bryden: Yes, it does, in the second half. It actually contains two ideas. That's the problem.

The Chair: It then should be accompanied by the fact that an appeal on the merits—

Mr. Leon Benoit: Well, it's focusing on one decision-maker.

The Chair: No, not necessarily.

Ms. Margaret Young: Yes, Leon.

Mr. Leon Benoit: I think item 9 is needed because it doesn't really focus on the appeal, having a second appeal.

Ms. Margaret Young: When I write it up, they will be done together.

The Chair: Yes, great. Now that we have this clarified, this one—

Mr. John Bryden: The second half of item 6 and item 9 are exactly the same—

Ms. Margaret Young: Yes.

Mr. John Bryden: —or essentially the same, and we disagreed with 9. I disagree with the second half of 6. So when you break it up—

The Chair: Only you disagree with the second half of 6.

Mr. John McKay: No, I disagree.

The Chair: Anyway, I think—

Mr. John McKay: Sophia.

The Chair: No, Sophia is still, I think—

Ms. Sophia Leung: I think I'm finished.

The Chair: Okay.

Mr. Leon Benoit: We're on to the next group now, then, to the—

Mr. John Bryden: I'd like to adjourn.

The Chair: Order.

Mr. Leon Benoit: Perhaps I could make one point at least, John, before we adjourn. It ties in with exactly what we're talking about.

This is with regard to item 12 under “Other Matters Related to the Refugee Determination System”. It talks about more judges in the Federal Court. Well, if you have that appeal with the system, cases wouldn't be going to the Federal Court.

The Chair: Hopefully not. That's why it's—

Mr. Leon Benoit: At least it would be rare, I would think.

Is that not the case, Margaret? Is that not the intent?

Ms. Margaret Young: It should cut down the number of judicial reviews to the Federal Court.

Mr. Leon Benoit: Dramatically, would you say?

Ms. Margaret Young: I have no idea. If the internal review catches a good number of cases that are meritorious, then those cases will not proceed.

The Chair: And that's what we want, I think. That seems to be the case.

Ms. Margaret Young: You can do an internal review a lot faster than you can a Federal Court review.

Mr. Leon Benoit: Exactly, and with more flexibility, too.

The Chair: Leon, do you have any more points?

Mr. Leon Benoit: Well, I do. Are we going to go on until 11 a.m.?

The Chair: Yes, but I still want to stick to the hearing.

Mr. Leon Benoit: Okay.

Ms. Jean Augustine: When is the vote?

The Chair: Hang on for a second. The vote is probably about 15 or 20 minutes away, so no problem. Don't get excited. We still have 15 minutes.

Mr. Leon Benoit: Do you want to stick to the hearing process?

The Chair: Yes, please.

Mr. Leon Benoit: Or others?

The Chair: I don't want to go on to an—

Mr. Leon Benoit: I want to go to the next group.

The Chair: Rick, on the same hearings. Go on that point.

Mr. Rick Limoges: I was just going to make one final point with regard to item 10. I see that as a redundant step. I don't see an alternative dispute resolution as being helpful, because I see it more as an opportunity to negotiate a settlement to something, and I don't think you can negotiate refugee status. You either are or you are not, and I don't think it's time to play Let's Make a Deal.

• 1055

The Chair: Okay. I think that's all.

At 11 a.m. things are supposed to be over and done with here, but I don't think the next committee will move in until the vote.

Listen, I think in this section there is a lot of consensus that we need a fair system but we need to expedite this system from front to back in terms of the structure, from either being a one-panel member, preferably.... Assuming that we're talking about resources and merit for the whole system, or meritorious people in the whole system, we're talking about expediting the process, about less stages for the hearings, less stages, hopefully, at the court level, so that the whole timelines are condensed.

I believe, one, whether or not we get into whether we should set that time, we talked a little bit about where the department is at, which is 11.5 months. It wants to get it down to eight months. A lot of us have said that probably we could do a heck of a lot better; six months.

I think Leon summarized it best, that the quicker and fairer the process, the better it is for those who have been accepted and those who are, in fact, turned down. To deny that final determination is rather unfair to both categories. Some people don't know their fate for three or four years and then all of a sudden they're told they have to leave. By then they've had Canadian kids, they've had this, they've had that. They're already in the community.

By the same token, for those people who have to wait even 16 months or 19 months or whatever it is to get a yes, I think it's also rather unfair.

So as to whether or not we finally say to the minister that the presumption is that you should be able to take this thing in six months, and that's what we expected those timelines to be, and whether or not you put that in legislation, I think we could have some further discussions. Because we know the system never works.

I must tell you, though, from the standpoint that we've set up for pre-admissibility criteria, or at least started to talk about one with an expedited system, certain things have to be taken into account. We'll get into whether or not we believe there are sufficient resources available now in the system in order to essentially achieve what we want to do.

We're going to adjourn. The next time we come back, hopefully, will be on Tuesday, when we'll get into not only the other related matters but also migrants. I hate that word “illegal”; it just presumes that everybody's illegal unless you prove legal. I'm sure we'll get into that discussion.

Is it the view of this committee that we meet on Tuesday at 3.30 p.m. to continue our discussions?

Ms. Jean Augustine: No, on Tuesday I have something.

Mr. John McKay: I have a justice committee meeting.

Ms. Jean Augustine: We're on other committees.

An hon. member: It would be really tough for me as well.

The Chair: Okay, we'll consolidate the witnesses to Wednesday. But be prepared to work long on Thursday so that at least before the break we will have gotten through this stuff and Margaret can spend some time, while we're away, to put together, with all of our help, a document we can then look at again.

Thank you.