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37th PARLIAMENT, 2nd SESSION

Standing Committee on Citizenship and Immigration

EVIDENCE

CONTENTS

Tuesday, November 19, 2002

1535

The Vice-Chair (Mr. Jerry Pickard (Chatham—Kent Essex, Lib.))

Mr. Alex Neve (Secretary General, English Section, Amnesty International (Canada))

1540

Mr. Michael Bossin (Past President, Refugee Network, Amnesty International (Canada))

1545

The Vice-Chair (Mr. Jerry Pickard)

Ms. Jeannette Meunier-McKay (National Executive Vice-President, Canada Employment and Immigration Union)

1550

The Vice-Chair (Mr. Jerry Pickard)

Ms. Janet Dench (Executive Director, Canadian Council for Refugees)

Mr. Nick Summers (Vice-President, Canadian Council for Refugees)

1555

The Vice-Chair (Mr. Jerry Pickard)

Mr. Richard Goldman (Member of the Executive, Table de concertation des organismes au service des personnes réfugiées et immigrantes)

Ms. Michèle Jenness (Spokesperson, Vermont Refugee Assistance, Vermont Immigration Project, Table de concertation des organismes au service des personnes réfugiées et immigrantes)

1600

Mr. Richard Goldman

The Vice-Chair (Mr. Jerry Pickard)

Ms. Judith Kumin (Representative in Canada, United Nations High Commissioner for Refugees)

1605

The Vice-Chair (Mr. Jerry Pickard)

1610

Ms. Lynne Yelich (Blackstrap, Canadian Alliance)

Mr. Alex Neve

Ms. Janet Dench

The Vice-Chair (Mr. Jerry Pickard)

Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.)

1615

The Vice-Chair (Mr. Jerry Pickard)

Mr. Alex Neve

The Vice-Chair (Mr. Jerry Pickard)

Ms. Judith Kumin

The Vice-Chair (Mr. Jerry Pickard)

Mr. Nick Summers

The Vice-Chair (Mr. Jerry Pickard)

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

1620

Ms. Janet Dench

The Vice-Chair (Mr. Jerry Pickard)

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

1625

Mr. Alex Neve

Mr. Yvon Charbonneau

Mr. Alex Neve

Mr. Yvon Charbonneau

The Vice-Chair (Mr. Jerry Pickard)

Ms. Janet Dench

The Vice-Chair (Mr. Jerry Pickard)

Mr. Yvon Charbonneau

The Vice-Chair (Mr. Jerry Pickard)

Mr. Alex Neve

The Vice-Chair (Mr. Jerry Pickard)

Ms. Judith Kumin

1630

The Vice-Chair (Mr. Jerry Pickard)

Ms. Judy Wasylycia-Leis (Winnipeg North Centre, NDP)

The Vice-Chair (Mr. Jerry Pickard)

Ms. Judy Wasylycia-Leis

The Vice-Chair (Mr. Jerry Pickard)

Mr. Michael Bossin

The Vice-Chair (Mr. Jerry Pickard)

Mr. Alex Neve

1635

The Vice-Chair (Mr. Jerry Pickard)

Ms. Janet Dench

The Vice-Chair (Mr. Jerry Pickard)

Ms. Janina Lebon (National Vice-President, Canada Employment and Immigration Union)

The Vice-Chair (Mr. Jerry Pickard)

Mr. Buti Kale (Senior Protection Officer, United Nations High Commissioner for Refugees)

The Vice-Chair (Mr. Jerry Pickard)

Mr. Nick Summers

1640

The Vice-Chair (Mr. Jerry Pickard)

Mr. Inky Mark (Dauphin—Swan River, PC)

The Vice-Chair (Mr. Jerry Pickard)

Mr. Alex Neve

Mr. Inky Mark

Mr. Alex Neve

Mr. Inky Mark

Mr. Alex Neve

Ms. Janina Lebon

1645

The Vice-Chair (Mr. Jerry Pickard)

Ms. Judith Kumin

The Vice-Chair (Mr. Jerry Pickard)

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

The Vice-Chair (Mr. Jerry Pickard)

Mr. Nick Summers

1650

The Vice-Chair (Mr. Jerry Pickard)

Ms. Janina Lebon

The Vice-Chair (Mr. Jerry Pickard)

Mr. Michael Bossin

The Vice-Chair (Mr. Jerry Pickard)

Ms. Judith Kumin

1655

The Vice-Chair (Mr. Jerry Pickard)

Ms. Betty Hinton (Kamloops, Thompson and Highland Valleys, Canadian Alliance)

Mr. Alex Neve

The Vice-Chair (Mr. Jerry Pickard)

Ms. Betty Hinton

The Vice-Chair (Mr. Jerry Pickard)

Ms. Janina Lebon

The Vice-Chair (Mr. Jerry Pickard)

Ms. Madeleine Dalphond-Guiral

1700

Ms. Janet Dench

The Vice-Chair (Mr. Jerry Pickard)

Ms. Madeleine Dalphond-Guiral

The Vice-Chair (Mr. Jerry Pickard)

Mr. Buti Kale

1705

The Vice-Chair (Mr. Jerry Pickard)

Mr. Alex Neve

The Vice-Chair (Mr. Jerry Pickard)

Mr. Andrew Telegdi

The Vice-Chair (Mr. Jerry Pickard)

Ms. Janet Dench

1710

The Vice-Chair (Mr. Jerry Pickard)

Ms. Michèle Jenness

The Vice-Chair (Mr. Jerry Pickard)

Mr. Alex Neve

1715

The Vice-Chair (Mr. Jerry Pickard)

Mr. Nick Summers

The Vice-Chair (Mr. Jerry Pickard)

Ms. Judy Wasylycia-Leis

The Vice-Chair (Mr. Jerry Pickard)

Ms. Jeannette Meunier-McKay

1720

The Vice-Chair (Mr. Jerry Pickard)

Ms. Janina Lebon

The Vice-Chair (Mr. Jerry Pickard)

Ms. Judy Wasylycia-Leis

The Vice-Chair (Mr. Jerry Pickard)

Ms. Judith Kumin

1725

The Vice-Chair (Mr. Jerry Pickard)

Mr. Nick Summers

The Vice-Chair (Mr. Jerry Pickard)

Ms. Janet Dench

The Vice-Chair (Mr. Jerry Pickard)

Mr. Alex Neve

The Vice-Chair (Mr. Jerry Pickard)

Mr. Yvon Charbonneau

1730

The Vice-Chair (Mr. Jerry Pickard)

Mr. Alex Neve

Ms. Janet Dench

The Vice-Chair (Mr. Jerry Pickard)

Ms. Jeannette Meunier-McKay

The Vice-Chair (Mr. Jerry Pickard)

Mr. Yvon Charbonneau

1735

Ms. Madeleine Dalphond-Guiral

The Vice-Chair (Mr. Jerry Pickard)

Ms. Lynne Yelich

The Vice-Chair (Mr. Jerry Pickard)

Ms. Lynne Yelich

Mr. Inky Mark

Mr. Nick Summers

Mr. Inky Mark

Mr. Nick Summers

The Vice-Chair (Mr. Jerry Pickard)

Mr. Alex Neve

The Vice-Chair (Mr. Jerry Pickard)

Ms. Judith Kumin

1740

The Vice-Chair (Mr. Jerry Pickard)

Ms. Lynne Yelich

Ms. Jeannette Meunier-McKay

Ms. Lynne Yelich

Ms. Jeannette Meunier-McKay

The Vice-Chair (Mr. Jerry Pickard)

Ms. Madeleine Dalphond-Guiral

1745

Mr. Alan Lennon (Senior Union Representative, Canada Employment and Immigration Union)

The Vice-Chair (Mr. Jerry Pickard)

Ms. Judith Kumin

The Vice-Chair (Mr. Jerry Pickard)

Mr. Andrew Telegdi

1750

The Vice-Chair (Mr. Jerry Pickard)

Mr. Yvon Charbonneau

Mr. Nick Summers

Mr. Yvon Charbonneau

Mr. Nick Summers

The Vice-Chair (Mr. Jerry Pickard)

Mr. Yvon Charbonneau

The Vice-Chair (Mr. Jerry Pickard)

Mr. Inky Mark

1755

Ms. Janet Dench

The Vice-Chair (Mr. Jerry Pickard)

CANADA

Standing Committee on Citizenship and Immigration

NUMBER 004

2nd SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, November 19, 2002

[Recorded by Electronic Apparatus]

¹ (1535)

[English]

The Vice-Chair (Mr. Jerry Pickard (Chatham—Kent Essex, Lib.)): Ladies and gentlemen, so we don't waste time, I'm going to call the meeting to order. I realize there are not as many of my colleagues here as I would like to see, but I want you to be assured that all testimony here will be on record and will be studied by the committee and the members in general, and our researchers and others will cover that testimony carefully. We don't have as many people here as we often have or should have, but their duties may take them out of their places, and they'll be drifting in from time to time.

We have several different groups here, so I'm just going to mention the lead person, and possibly they could introduce the other person or persons who may be with them.

From Amnesty International we have Alex Neve; from the Canada Employment and Immigration Union, Jeannette Meunier-McKay; from the Canadian Council for Refugees, Janet Dench; from Table de concertation des organismes au service des personnes réfugiées et immigrantes, Michèle Jenness; and from the United Nations High Commissioner for Refugees, Judith Kumin.

We can start out with brief presentations. The suggested time was five to ten minutes. Then we can move on from that point with questions by our members.

Alex, you're on.

Mr. Alex Neve (Secretary General, English Section, Amnesty International (Canada)): Thank you, Mr. Chairman, and good afternoon, committee members.

[Translation]

My name is Alex Neve and I am the Secretary General for the English section of Amnesty International Canada. I am accompanied by Mr. Michael Bossin, who is a member of our refugee network.

[English]

We welcome the opportunity to be here this afternoon to share with you our concerns and recommendations with respect to the regulations you are studying.

Our primary concern with respect to the designation of the United States as a safe third country is that genuine refugees who wish to make claims in Canada will be denied the protection that is their right and substantial numbers of refugee claimants will be subjected to arbitrary, lengthy detention in conditions that fall far short of international standards. Amnesty International does not oppose international cooperation. In fact, we actively encourage governments to work together more to provide meaningful protection to the world's refugees. But very clearly, cooperation between governments should be towards better and improved standards of protection, not lesser, even unlawful standards.

Over the past seven years Amnesty has made numerous submissions to the Government of Canada highlighting problems in the U.S. refugee system, ways in which protection in the United States fails even to meet minimum international standards. This includes detention. U.S. law mandates the detention of refugee claimants who arrive without proper documents or arrive by sea. They are often detained indefinitely, confined alongside convicted criminals, and sometimes treated as criminals themselves, strip-searched, shackled and chained, verbally and physically abused. Unlike criminals, though, they are denied any opportunity for parole.

The conditions of detention are often inhuman and degrading, and refugee claimants are frequently moved from one facility to another without any notice to their legal counsel. Many are denied access to their families, lawyers, and organizations who could help them. No one should be subjected to arbitrary detention. No one should be held in conditions that are tantamount to cruel and inhuman treatment. Surely, this must particularly be so for refugees, many of whom have witnessed unbelievable horror and experienced first-hand terrifying human rights violations.

We have highlighted as well that women are at risk in the United States when their refugee claims are based on gender-specific forms of persecution, such as domestic violence, honour crimes, and trafficking in the sex trade. International law and the Canadian approach to refugee protection recognize that these forms of harm constitute serious abuses of such rights as the right to life and to be free from torture and that women have the right to expect that their own governments will protect them from these abuses. But when that protection is not forthcoming, be it due to unwillingness or inability of the government concerned, women must be able to look to another country to provide that protection instead in the form of refugee protection. Many gender-based claims are rejected in the United States. This agreement will undeniably put women at risk. It's notable that the regulatory impact analysis statement accompanying the regulations even admits that there is a difference between Canada and the United States with respect to gender-based claims. With this admission, it is our view that it is surely incumbent upon the government to now offer a solution.

Finally, the U.S. refugee system penalizes refugee claimants who arrive with fraudulent or no identity documents. Genuine refugees often have difficulty in obtaining or fleeing with identity documents. Yet in the U.S. refugees without proper documents are shunted into a process known as expedited removal, where they have no access to legal counsel and the chances of being summarily deported from the country are grave indeed.

We are disappointed that the government has gone ahead with this agreement with the United States even though it stands to make Canada complicit in violations of the basic rights of untold numbers of refugee claimants. The regulations you are studying offer a final means of ensuring that this agreement will not lead to further human rights violations.

Our brief makes a number of recommendations. My colleague Michael Bossin would now like to share some of those recommendations for solutions.

¹ (1540)

Mr. Michael Bossin (Past President, Refugee Network, Amnesty International (Canada)): Thank you, Alex.

We should say at the outset that it is not Amnesty International's position that the asylum procedures in the United States and Canada be identical. However, we do believe strongly that where different procedures affect a claimant's fundamental rights—such as their right to liberty, physical and mental integrity, and life—then those adverse effects that those differences have on individuals should be minimized as much as possible, especially when those differences violate international norms. As Alex said, the regulations are the way to do that. What we hope the regulations would accomplish is to try, as much as possible, to even the playing field between the United States and Canada when it comes to respecting those fundamental rights.

Both the UNHCR and Amnesty have recommended that Canada create in the regulations an exception for asylum-seekers who would be placed in the expedited removal proceedings in the U.S. and/or who would be subject to detention contrary to international norms. How does one do that? We've made some suggestions in terms of possible amendments to the regulations, and we have provided those.

Essentially, our proposal is that Canada apply its standards regarding detention. We do detain people when they pose a danger to the public; when they will not show up either for a hearing or for removal, in the view of our authorities; or when we cannot verify their identity. Those criteria, in our view, do conform to international norms. Essentially, what we are saying is that those should be applied. When someone arriving at a port of entry would not be detained according to Canadian standards but would be detained in the United States, for example, because they don't have an identity document, then we should allow them into our system and not subject them to the kinds of arbitrary detentions and facilities that do not meet international norms that Alex described.

The same approach to evening the playing field could be applied to gender-related claims by allowing an exemption for them. It should be noted, of course, that those two issues often overlap. Women who have suffered horrible abuse at the hands of their partner or their husband, but whose claims are rejected in the United States, often spend time in detention as well. At the very least, the treatment of the claimants in those two jurisdictions should be very closely monitored, because there is going to be a review of this agreement and that's one issue that should be highlighted.

One could ask whether that would lead to abuse, whether any woman coming to the Canadian border could say they fear gender-related persecution and should be let in. Of course, there's a potential for abuse in all of our procedures, but it should be pointed out that abuse could be dealt with. Those people would be put in a hearing. It doesn't mean that if the claim is not genuine, they would be accepted. One would hope the system would work in such a way that non-genuine claims are dealt with expeditiously and people who are not at risk would be removed. It's far better to do that than it is to put them into a system that puts their lives at risk.

Finally, regarding the detention facilities and our view that people should not be kept in facilities that do not meet international norms, we've again asked for an exemption on that basis. This is not, at first hand, an easy thing for people at the port of entry to determine. It would call for training and the development of guidelines perhaps for decision-makers to be able to determine if someone sent back to the United States would be held in facilities that we would consider to be ones that meet international norms.

Thank you.

¹ (1545)

The Vice-Chair (Mr. Jerry Pickard): Thank you very much.

We have five groups. One of the difficulties we're going to have is giving every group fairness. Firstly, if we extend this time 10 to 15 minutes for each presentation, the other groups are not going to get fairness in their presentations. Secondly, it's going to restrict my colleagues from digging into some of these problems in more depth in the areas in which they wish to do so.

If you could, then, please try to keep the presentations short. We will have a good opportunity to get into more of the details as they ask questions as well, so keep that in mind at the same time. If you highlight your key points, that would be helpful. If we do it quickly, that will allow everybody... I would hope we can get through the group two or three times when posing questions to you. But with five groups, it is a little difficult to try to get this logistically set up so that everybody has a full opportunity.

We'll now go to the Canada Employment and Immigration Union and Jeannette Meunier-McKay.

Ms. Jeannette Meunier-McKay (National Executive Vice-President, Canada Employment and Immigration Union): Good afternoon. Thank you very much for the opportunity to appear before the committee. My name is Jeannette Meunier-McKay, and I'm national president of the Canada Employment and Immigration Union, the component of the Public Service Alliance of Canada that represents the women and men employed by Citizenship and Immigration Canada, as well as other departments.

With me today is Janina Lebon, former national vice-president of our union and an expulsion officer at the Greater Toronto Enforcement Centre, for Citizenship and Immigration Canada.

In our brief to you today—and we have copies here, but the French will only be available tomorrow—we are expressing the concerns of the workers who will have to deal with the consequences of this regulatory change on a daily basis. We are concerned about the department's willingness to place women at risk by returning them to the United States, while noting that their treatment there in terms of claims for gender persecution will be quite different. We are also concerned that this regulation increases the likelihood that the Canadian public will be exposed to contagious diseases like TB from individuals who are allowed into Canada as visitors.

In our view, rather than reducing the work of our members at border points and inland CIC offices, the regulation will in fact increase it, both in the complexity of the decision-making and also in the quantity of work to be done. At the border, our members will be asked to make more complex decisions and pursue more detailed and probing examinations of individuals arriving from the U.S., in order to fairly apply their new regulation. In order to return an individual to the States to make their claim there, an officer will have to establish that the individual does not meet any of the many expectations outlined in this regulation.

The fact that individuals may be turned back if they make a refugee claim will lead to an increase in individuals attempting to enter Canada as visitors in order to make their claims from within Canada. It will also increase the trade in human smuggling. All of this increases the workload for the department, both in terms of processing refugee claims made within Canada and in terms of increasing enforcement measures at the borders and within Canada.

We are concerned about the impact on our members as their workloads are again increased. Our concern has increased as the department, in its regulatory impact analysis statement, simply states that it will reallocate resources to deal with this increased workload. All that means is that other core functions of the department will backlog even more than at present.

At this time, the department is unable to handle the work it has, because of its lack of staff. It is simply unreasonable to assume that situation will change by increasing the amount of work required from our members within Citizenship and Immigration Canada.

These and other points are outlined in our brief. We would be happy to answer any questions you may have on these issues.

¹ (1550)

The Vice-Chair (Mr. Jerry Pickard): Thank you very much for summarizing that as well as you did, Jeannette.

From the Canadian Council for Refugees, we'll now hear from Janet Dench.

[Translation]

Ms. Janet Dench (Executive Director, Canadian Council for Refugees): Good afternoon, my name is Janet Dench and I am the Executive Director of the Canadian Council for Refugees, a group of approximately 180 organizations. I am accompanied by our Vice-President, Mr. Nick Summers, who will be making our presentation.

[English]

Mr. Nick Summers (Vice-President, Canadian Council for Refugees): As you may know, CCR is an organization of 180 organizations that serve refugees and immigrants. It is not, as some would have it, an organization that is for throwing open the doors wide and allowing all refugees in. Rather we are an organization that is committed to the rights and care for refugees and helping them both overseas and in Canada. When we see Canada not necessarily living up to its international obligations with regard to refugees, then we speak out.

Too often we find ourselves in the position of being the ones who say to Immigration “We told you that wasn't going to work”, and we feel we're in that same position again. We've told them we don't believe this agreement is a good agreement. We don't believe it's going to work. As usual, they haven't listened to us yet. We hope the committee will.

The thrust of our comments here today and in our brief is that we still don't like the agreement, but if we have to have the agreement, then at least let the regulations do what regulations are supposed to do. But what we have here are regulations where the department seems to be trying to do by regulation what it couldn't do by negotiation with the United States. It is narrowing the number of people who can get in across the U.S. border even more than the agreement did.

We have a number of instances in the regulations where the wording is such to exclude people who would have been allowed in under the agreement. To give you some examples, for unaccompanied children, in the agreement it simply says an unaccompanied child is someone who does not have parents or guardians within the United States or Canada. In the regulations, it says an unaccompanied child is such a person, plus they add the requirement that they not be accompanied by somebody over the age of 18. That begs the question of what does “accompanied” mean. Is this the cab driver who brought them to the border? Is this somebody who took pity on them and is looking after them until they can get to Canada? But under these regulations people will be turned back at the border. Children will be turned back at the border without any inquiry being made into whether or not this person who arrived at the border with them has any responsibility whatsoever for them.

Another area where the regulations narrow too much--more than the agreement--is in the status of family members within Canada where you have in the agreement an enumeration of who can be considered a family member for the purposes of somebody being exempt and allowed to come into Canada. But in the regulations the area the people covered is smaller. To give you a very quick example, in the regulations a person has status for this purpose if they have received refugee status. In the agreement, it is if they have received protection under the act, which is a broader category. We're hoping that's simply an oversight on the department's fault, because it simply doesn't make any sense. But it's there now.

We have a number of other issues, and I'm not going to read my brief obviously, but I would like to highlight some of the things that most concern us.

There is the issue of the summary decision- making process at the border. As our friends from the union have said, there really isn't any clear idea of how this is going to be done. But what concerns us most is that people will arrive at the border, we'll have no idea as to whether they've been given any pre-notice of what they're required to bring with them, they will make a refugee claim, and they will be told, “Well, you have no proof that you have a family member in Canada; therefore you're ineligible”. The fact that they could have gone away and come back a week later with a document that did prove it is unfortunately irrelevant because there is nothing in these regulations that indicates there's any form of appeal, that it can be reopened, or that a person can be told, “Don't make your claim, go away and get your papers together”. It's simply that once they've made their claim they're told they're ineligible, and under the act, once you've made a claim and you're found ineligible, you can never make another claim. So they're simply gone.

There's the issue of burden of proof. Is it fair to put such a heavy burden on somebody coming to the border for the first time, and in particular is it fair to put this kind of a burden on children? They have an even harder job than the adults; they have to come to the border and prove that they are not accompanied. They have to prove a negative. Yet the burden, according to the act and the regulations, is on them.

¹ (1555)

There is the issue of discretion in the department to allow people in who are not enumerated in the exceptions and the regulations. In the agreement, it is clearly set out that the minister has the power to allow people in who are not specifically mentioned. The regulations do not have that discretion.

Finally, we would like to suggest that this being a very complex bit of agreement, legislation and regulations, it is fraught with peril for both the refugees and for Canada, and that the regulations should contain the provision that it come back before this committee within six months of implementation for a proper review and to see how it's working.

The Vice-Chair (Mr. Jerry Pickard): Michèle or Richard.

Mr. Richard Goldman (Member of the Executive, Table de concertation des organismes au service des personnes réfugiées et immigrantes): Mr. Chairman, honourable committee members, I'm here along with my colleague, Michèle Jenness. On behalf of the Table de concertation, an umbrella group of 130 member organizations from across Quebec serving refugees and immigrants, we did not produce a brief but we will be speaking in favour of one specific point in the UNHCR and CCR briefs, namely, the absence of an effective review mechanism for ineligibility decisions made at the border.

I'll ask my colleague Michèle to comment briefly on her experience working south of the border and then I'll make a brief concluding remark.

Ms. Michèle Jenness (Spokesperson, Vermont Refugee Assistance, Vermont Immigration Project, Table de concertation des organismes au service des personnes réfugiées et immigrantes): Thank you.

I work with Vermont Refugee Assistance in the Vermont Immigration Project. We were formed in 1987 as an outgrowth of the sanctuary movement, when thousands of Central Americans had traversed the United States in order to apply for asylum in Canada.

For the past 16 years we've provided legal assistance, shelter, and medical care for Canadian-bound asylum-seekers. We also work with detained immigrants and with non-detained people applying affirmatively for asylum in the United States. This agreement will have a dramatic impact on our organization and the work we do with our clients.

From firsthand experience, I know that most of the people who have been applying for asylum in Canada do so in order to join supportive communities already in existence here, or they're forced to do so to avoid the iniquities of the U.S. asylum determination system.

In the agreement, both countries have shown a solid commitment to reunifying families and protecting children. We welcome the exceptions put forth in article 4, while we are aware that they will be very difficult to determine. Vermont Refugee Assistance and other border groups will be working to help prepare the necessary documentation for a claimant seeking access on the basis of family ties. But what of the thousands more refugees who must pass into Canada without the assistance of an NGO?

Indeed, the regulations admit to the added level of complexity and the decision-making of port-of-entry officers. How will they be able to make a clear-cut decision on those claimants without adequate documentation of family relationships?

I would like to offer a few examples. What if a claimant is fleeing from some place like southern Sudan or Somalia, where there currently is no functioning government and no civil service and therefore no documentation?

We assisted a Canadian-bound Rawandan woman seven or eight years ago whose whole family was dispersed once the genocide began in 1994. When she finally arrived in the United States, she only held dear to the hope that an aunt had safely made it to Canada. It wasn't until she was able to access Canada and join the central African community in Montreal that she was able to find and reunite with her aunt. Had she not been given an opportunity to enter Canada, she would not have been able to do this. Under these regulations, she simply would have been turned back at the border.

Age determination is another problematic area. In the U.S., immigration officials currently rely on radiograph exams to determine whether somebody is above or below the age of 18. It's been well documented that even such high-tech exams are unreliable for the purposes of age determination. How could a port-of-entry officer adequately assess age on the spot? We believe it would be appropriate to allow this person to enter Canada and obtain the necessary documents.

The stakes are so high. If a claimant fails to establish eligibility on the basis of an exception, not only are they separated from the support they seek, but if directed back to the U.S., they will likely face detention if they lack proper status. Many may have to face expedited removal. We have yet no assurances from the United States to the contrary. They will also have exhausted their once-in-a-lifetime ability to claim asylum in Canada.

º (1600)

Mr. Richard Goldman: To conclude, our practical suggestion is that any claimant who alleges that they fall under one of the exceptions, but fails to convince the border official, should at least be allowed to enter Canada and appear before an independent adjudicator. All the powers of detention would still be present, and in fact it might be logical for the same adjudicators who hear detention matters to look at this issue of eligibility. An independent adjudicator could assess the efforts being made by the claimant to obtain documents to prove their age, or whatever the exception being alleged, and could allot the appropriate amount of time they deemed reasonable.

On a personal note, as a lawyer who has practised in several areas of law, it shocks me that we would even consider regulations that would not allow the same level of procedural fairness to a refugee claimant in this situation as we would to, say, somebody who was cut off employment insurance, or somebody who was making a small claim due to a faulty car repair, and give them the chance to have their case heard one time by an independent decision-maker.

Mr. Chairman, I know that we, as Canadians, can do much better. I thank you.

The Vice-Chair (Mr. Jerry Pickard): Judith.

Ms. Judith Kumin (Representative in Canada, United Nations High Commissioner for Refugees): I'm here on behalf of the United Nations High Commissioner for Refugees. I am the UNHCR representative here in Ottawa. With me is our senior legal officer, Mr. Buti Kale.

We have submitted written comments on both the proposed U.S.-Canada agreement and the proposed regulations. The committee is in possession of both of these briefs. We also participated in numerous consultations this summer with Citizenship and Immigration and with U.S. government officials on the proposed agreement. As I think you heard this morning from CIC officials, we have agreed in principle to participate in monitoring the application of the agreement and in what we hope will be a regular review of the agreement.

Since I'm speaking last, many of the points I wanted to make have been made, so I will just highlight very briefly for you a general concern we have about the effect of the agreement, and then the specific points we made in our brief on the draft regulations themselves.

Concerning the proposed agreement, as you know, UNHCR has consistently recognized that states are entitled to enter into agreements to share responsibility for examining asylum requests. But we remain very much concerned—as another witness has already said—that this agreement may well have the undesired effect of encouraging irregular movement across the borders. Asylum seekers who know they can no longer seek admission at the border—because they are not entitled under the agreement to do so—may very well engage the services of smugglers to take them across the border illegally, in order to make a claim inland. Indeed, this is what we have seen happen in other countries that have implemented similar arrangements.

On the proposed regulations, the first point that is of concern to us is the point emphasized by Amnesty International: certain of the asylum-seekers who are turned back to lodge their claims in the United States may well be placed in expedited removal proceedings and be detained in the United States in a manner not in line with international norms. UNHCR has consistently expressed to the U.S. government concern about this expedited removal process and about the practice of detention. We also suggest that the regulations be amended to allow for an exception for persons who would be subject to expedited removal and/or to detention contrary to international standards.

The second point that the regulations don't address in a satisfactory manner is the situation whereby an asylum-seeker would not be eligible to lodge her claim in either country. This would be the case, for instance, where a person is turned back at the Canadian border and told to lodge a claim in the United States. But that person is not eligible to apply for protection there, because one of the statutory bars to protection in the U.S. applies. There are a number of things written into statute in the U.S. that make a person ineligible to apply for asylum. Yet that same person would have been eligible to apply for asylum had the person been in Canada. We think an exception would be called for in such cases.

Third, we also welcome the exceptions in the regulations for claimants who have family members in Canada. We think these exceptions in article 4 go a long way toward recognizing the important principle of family unity. But there are certain categories of persons in Canada who would need to be added to the list of eligible anchor relatives if we want to make sure that refugee families are not separated. We have set out in our brief what we think these missing categories are.

Fourth, we think it would be important to revise the definition of unaccompanied minor in the draft regulations. It's not actually in the definitions chapter but in section 159.5. As another witness pointed out, this is where the regulations say that an unaccompanied child is one who “is not accompanied by a person who has attained the age of 18 years”. Our concern is that if a child appears at the border—which happens not infrequently—accompanied by a smuggler, or by a person seeking to exploit the child, this child would not be recognized as in need of particular protection, as being “unaccompanied”.

We suggest using the term “separated child”. We suggest defining such a child as one who is “separated from both parents and not accompanied by a person over 18”—and this is the difference—“who by law or custom has the responsibility for looking after the child”. This would help to protect children from abuse.

Fifth, as has been pointed out by our colleagues from la Table, and as we pointed out extensively in our brief, there is no effective procedure for the review of eligibility decisions taken at the border. The regulations do not remedy this lacuna in the agreement. However, it is a basic principle of law that any administrative decision needs to be subject to an effective review mechanism. Therefore, we continue to urge that a transparent review procedure be established and set out in the regulations.

º (1605)

Lastly, we would also suggest incorporating in the regulations a provision that would reflect the spirit of article 6 of the agreement. Article 6 is the clause that says that either party may decide to examine a claim if it is in the public interest to do so. The regulations don't seem to reflect this. The regulations appear to limit the exercise of discretion under article 6 to three very specific, quite narrow contexts. But we can think of a plethora of other situations that might arise and that would call for the application of the public interest provision.

Mr. Chairman, that's a quick summary of our brief. Mr. Kale and I are happy to answer questions. Thank you.

The Vice-Chair (Mr. Jerry Pickard): Thank you very much.

My congratulations to the groups for getting through your presentations as quickly as you did. That will give us a lot more opportunity to get through questions.

I'm going to ask my colleagues if they could, rather than putting forth a multitude of questions, each ask a question, and if there's time for a second one, ask the second one. I'm also going to try to go through the groups as quickly as possible so we may have two or three or four rounds for each person, if that's possible.

We're here until 6 p.m., and for any people who wish to stay, we'll definitely get all their questions on the floor and be able to answer them.

If you have questions to put directly to any individual group, you can do that, or if you just want to ask a broad question so that the spectrum can come back with answers, that's fine too.

Lynne, you're up.

º (1610)

Ms. Lynne Yelich (Blackstrap, Canadian Alliance): Thank you very much.

I wanted to make a point on the Canadian Council for Refugees' submission here. In particular, you were talking about how you don't want residents seeking to enter the U.S. being subjected to discriminatory treatment or humiliation, and you mention the case of Maher Arar. But Maher Arar has now been associated with al-Qaeda, am I not right? So the one example you cite unfortunately proves that perhaps they have to use that exercise. While I agree with you they should not be humiliated or treated discriminatorily, I wanted to--

Mr. Alex Neve: I know the question was directed to the Canadian Council for Refugees, but Amnesty International has actually been involved in the Maher Arar case. So perhaps I could respond on their behalf, and they can certainly disassociate themselves from the response if they wish.

Clearly, in the last few days, some allegations have come to light, many of which remain unclarified, some of which seem to rest on evidence that may have been provided by an individual who was at that time being held in a Syrian jail himself. Given the prevalence of torture and ill treatment in Syrian jails, Amnesty International would stress that there's very good reason to be dubious or at least to be very cautious about the credibility or reliability of evidence that would have been coming from any such individual.

I think there are a lot of answers that we still don't have with respect to Maher Arar, and I think, with respect, it's probably premature to rush to a conclusion that he is a member of, or even associated with, al-Qaeda.

Ms. Janet Dench: If I could comment from the point of view of the Canadian Council for Refugees, our concern is precisely that people are being associated with terrorists and are suffering the consequences of that association without being given a fair chance to be heard and to face particular accusations and be tried.

This is what we're seeing since September 11. As we know, many people, mostly of Middle Eastern origin, mostly Muslims, were picked up, and many of them were held in detention for a long time. There was that cloud of suspicion hanging over them. Most of them, after months and months in detention, have been released because in fact there was no grounding, there was no basis, that could be proved.

The Vice-Chair (Mr. Jerry Pickard): Andrew.

Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.): Mr. Chair, Canada has a long history of accepting people coming through the United States--going back to the underground railway or to the time of the Chilean refugees, or the ones from El Salvador, Nicaragua, or what have you. These folks, who some could argue were victimized by U.S. foreign policy in supporting right-wing juntas, would not get refuge in the United States, but they would find it in Canada. And of course we had something like 50,000 draft dodgers who came into Canada.

I find the approach we are taking is very much contrary to that history. Alex Neve mentioned that unlike criminals they are denied parole. Well, criminals have the advantage of getting a process before the courts with appeals, which is really denied to many of the folks who can be turned back with this present situation.

I'm wondering if somebody would respond essentially to those comments, that it's going to be very difficult for somebody to bypass the United States.

º (1615)

The Vice-Chair (Mr. Jerry Pickard): Thank you, Andrew. Does anybody want to volunteer to add a comment to that?

Go ahead, Alex.

Mr. Alex Neve: I could start. Obviously I think your concerns echo Amnesty International's sentiments as well, which is that while we by no means are saying as a matter of principle that it's not permissible to have an agreement that seeks to improve cooperation between any two countries, including Canada and the United States, when it comes to refugee protection, it can't operate in a way that is going to expose individuals to human rights violations such as the kinds of concerns we have about what will happen in detention, or risk denying people the protection that is their right--which I think is very much the case in the examples you've cited, Mr. Telegdi.

I think the current concern, the gender example, is parallel to that same concern in that, within the United States, the system cannot be counted upon to do the right thing in terms of offering protection to women who need it.

We're not just talking about the fact that Canada has a more liberal system. Canada has a system that meets international standards on this issue, and that's all any of us are saying, that we need to have a system that ensures, in whichever country a person advances their claim, the treatment they will receive, the protection they will receive, will meet international standards. That's the concern here.

The Vice-Chair (Mr. Jerry Pickard): Thank you, Alex.

Judith.

Ms. Judith Kumin: I think the point that was just made is actually one that we made earlier on in the process when the agreement was first being discussed; that is, that in many situations, not just the U.S.-Canada agreement but also in the European context, the cart has been put before the horse, because procedural arrangements are being made among states before material law has been aligned or harmonized. So you have very different standards of protection from one country to the other, and yet those countries are trying to reach procedural arrangements. The risk is--you're quite right--that because standards of protection differ from one country to the other, an individual doesn't have the same assurance of finding protection in the context of these new arrangements as he or she would have had otherwise.

The only way of approaching that problem in the context of the agreement as it is now proposed is through the public interest clause, article 6, and that was one of the reasons we were encouraging an amendment to the regulations that would allow the decision-makers to take a more liberal approach to the application of article 6 in cases that might be similar to the one the member just outlined.

The Vice-Chair (Mr. Jerry Pickard): Thank you, Judith.

Nick.

Mr. Nick Summers: Thank you.

I find your comments interesting because many members or groups within our organization grew up out of the era to which you referred, the flow of people from Central and South America escaping some pretty repressive regimes. It was clear at the time that many of them were not able to make a claim in the United States, or hope to be accepted in the United States, because it didn't suit the U.S. political agenda at the time. I'm not here to debate whether that was good or bad. But the fact of the matter is these were genuine refugees who came to Canada because it was the only place where they could get a haven. They have stayed here, they have contributed to Canada, and they have done well. Canada has benefited from them. But for Canada having been willing to accept them...these are people who would have been sent back to their own countries, where many of them would have faced death squads and imprisonment.

The point I'm trying to make is that when you're dealing with a country like the U.S.—a world power that has many political and economic things on its agenda, which impact upon its immigration and refugee policy—one has to be careful in entering an agreement that is going to impact on refugees, because they don't have a voice.

The Vice-Chair (Mr. Jerry Pickard): Thank you very much.

Madeleine.

[Translation]

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): Thank you, Mr. Chairman. Good afternoon, everyone, and thank you for coming.

This morning we heard from the senior officials of the Department of Citizenship and Immigration. We discussed certain aspects that you have alluded to in your presentations. I also read a few lines from an article that appeared in The Washington Post last Friday and, basically, when you wonder why the United States is now prepared to negotiate an agreement for a type of process that Canada had already desired and envisioned, but which was always opposed by the United States, I think that my answer lies therein, which will certainly not alleviate concerns, particularly as regards the fate of asylum seekers. This is what is written on the second line:

º (1620)

[English]

This might encourage the Canadians to align their system more closely with U.S. practice, which is not necessarily a bad thing.

[Translation]

That was said in The Washington Post.

[English]

If the U.S.-Canadian border is to remain as open and transparent as it is today, the visa, asylum and immigration regimes of both countries will inevitably become more similar, not more different.

[Translation]

So with this agreement and the regulations, we have just opted to assimilate with the United States. We asked some questions about the situation facing some Chileans, for example. We wondered whether or not this agreement had been...We never got a satisfactory answer. We asked some questions about the fate of women.

The regulations provide for a certain number of exceptions. Some of you have suggested others. What is the likelihood that your requests will be heard even if, hypothetically, the committee were to unanimously recommend them?

Ms. Janet Dench: I can answer your question. We cannot say what amendments the government will agree to, but I would like to emphasize the discretionary power. As noted, according to the agreement, discretionary power is provided. We feel that it is absolutely essential that the regulations open the door to exemptions for exceptional cases. We can very easily think of all kinds of situations where everyone would agree that it would be completely absurd to send back the individual to the United States. As an example, let's take the case of a family that shows up at the border with a family member who is quite elderly. The other members of the family would be able to enter Canada because they meet the criteria for one of the exceptions, but the older person, who is really quite weak, would not be able to survive on his or her own, and does not meet the exception criteria. Are we going to really want to send this person back to the United States? This is the type of situation where we cannot really provide for a particular exception in the regulations, but we must authorize the officers to determine that, in this case, it would be completely unfair to send the person back.

And then there's the case of children. According to the current regulations, a seven-year-old child with no family members in the United States who shows up at the Canadian border, where the mother is , without having the requisite status under the regulations, will be sent back to the United States. Is that reasonable? No. We cannot accept such a situation. We must therefore have the authority to respond to such situations.

The Vice-Chair (Mr. Jerry Pickard): Yvon, you have the floor.

Mr. Yvon Charbonneau (Anjou—Rivière-des-Prairies, Lib.): The Canadian Council for Refugees purports, in its presentation and in documents that we received previously, that the American refugee protection standards are much lower than Canada's standards and that, in many respects, they do not meet international standards.

This morning, I raised this issue with officials from Citizenship and Immigration Canada. I quoted the study by Professor James Hathaway who feels, on the one hand, that the United States has a troubled relationship with international law, and on the other hand, that in many cases, the jurisprudence of the American Supreme Court does not consider the fundamental obligations dictated by international refugee law. Obviously, the officials went on at great length to tell me that this was false, that that was not how they saw things and that they had studies showing that the situation in Canada and the United States was the same. I would like you to repeat your arguments and, if possible, add to them.

I would like to put a question to the representatives of the Office of the United Nations High Commissioner for Refugees, who observe events in many countries and are in a position to make comparisons. Do you share the opinion of the Canadian Council for Refugees that standards in the United States are lower than in Canada? I would first like to hear from the Council.

º (1625)

Mr. Alex Neve: I am from Amnesty International: they are from the Canadian Council for Refugees.

Mr. Yvon Charbonneau: I did say the Council; I do not know if you share the same opinion, Mr. Neve.

Mr. Alex Neve: Yes.

Mr. Yvon Charbonneau: What is the position of the Canadian Council for Refugees?

[English]

The Vice-Chair (Mr. Jerry Pickard): Yvon, we'll let each witness comment on it. If we just keep them brief, I think we'll be able to get those comments in.

Go ahead, Janet.

[Translation]

Ms. Janet Dench: We have said on several occasions that, in our opinion, the American standards were not always in line with international standards. We have never been able to obtain from the US government a clear and detailed explanation on their manner of interpreting things. It is difficult for us to understand how they can interpret things differently when a body such as the UNHCR, which is after all an international authority, states that the rules in the United States do not always meet international standards.

[English]

The Vice-Chair (Mr. Jerry Pickard): Yvon, do you have a comment on it?

[Translation]

Mr. Yvon Charbonneau: Could the lady representing the High Commissioner now answer my question?

[English]

The Vice-Chair (Mr. Jerry Pickard): Next is Alex, and then we'll go to Judith.

Mr. Alex Neve: I will just stress again how that issue of international norms has to be the key here. As an example--I certainly didn't submit it to the committee because it's much too lengthy--three years ago Amnesty International issued a 94-page report on immigration detention in the United States, and 25 pages of it exhaustively went through international legal standards and raised concerns with respect to any number of aspects of the U.S. immigration detention system falling far short of those standards.

I think that is the measuring stick we need to keep coming back to on all of these issues in insisting that the government ensure that this agreement is going to operate in a way that does not expose people to those kinds of concerns.

The Vice-Chair (Mr. Jerry Pickard): Thank you Alex.

Judith.

Ms. Judith Kumin: I think maybe the clearest way to answer the question would simply be to draw your attention to the fact that UNHCR, both our representation in Washington and at the headquarters level, has consistently expressed concern about certain aspects of the U.S. asylum procedure that don't always meet international norms.

The issues of greatest concern are the ones that I cited in my opening remarks, namely, the expedited removal process and the use, not in all cases, of detention in a number of cases, frequently beyond reasons that we would recognize as justifying detention, but also the conditions of detention. What we have most frequently expressed concern about is the detention of asylum-seekers in criminal facilities, asylum-seekers co-mingled with accused criminals or convicted criminals in state jails or county jails, where it's very difficult for them to access legal advice or advice of NGOs and where they are frequently quite traumatized at being held alongside criminals. That's one level of concern.

A second level of concern is the interpretation of the refugee definition, in particular in gender-related claims. We have, along with other institutions in the U.S., been advocating for a more progressive approach to refugee claims based on gender-related persecution. And this is something that may of course develop over time as the jurisprudence develops.

The third level of concern, or third tier, if you like, relates to conditions under which asylum-seekers live in the United States. Asylum seekers in the U.S., as you probably know, are frequently detained. But if they're not detained, they are not entitled to receive any social welfare assistance, not entitled for a long period of time to have access to employment, and, perhaps the most problematic issue, not entitled to government-supplied legal aid. It is more difficult to pursue a claim when you don't have access to the kind of support you need. Some claimants may find that support because they're in a big city like New York or Miami or Washington, where there are pro bono legal counsels available, but this is not always the case.

So we have expressed concerns, I would say, of different magnitudes on the different tiers of the question.

º (1630)

The Vice-Chair (Mr. Jerry Pickard): Thank you.

Judy.

Ms. Judy Wasylycia-Leis (Winnipeg North Centre, NDP): Thank you very much, Mr. Chairperson.

I think this is a very useful discussion, given the kind of testimony we heard this morning from the officials, who, when asked similar questions, suggested to us that in fact Canada and the United States' systems around immigration and refugee policy are very similar; our philosophy is very similar and our approaches are very similar. They didn't seem to be prepared to acknowledge some of the differences in terms of expedited removals and detention.

I would ask you to read the testimony from this morning and please give us your critical analysis, because I think we're not getting all the information we should be getting.

On that testimony this morning with respect to the issue of the right to appeal a decision that's made at the border, the officials told us not to worry, someone can still go to the Federal Court. Furthermore, they suggested it's okay because there will be two immigration officers who will look at each case.

I'd like your response to that recommendation.

Furthermore, it was suggested that if someone was sent to the United States, there's an understanding through this agreement and through the regulations that the United States will follow the same kinds of standards around due process that are part of the Canadian fabric and that we needn't worry.

With respect to both situations, therefore, I think we need your understanding of what's in the agreement or the regulations that would satisfy us on those issues.

It's for everybody, I think.

The Vice-Chair (Mr. Jerry Pickard): So you can all make another brief comment and deal with the issues of this morning's testimony. Is that what you're asking for, Judy?

Ms. Judy Wasylycia-Leis: On the issues of appeal and review.

The Vice-Chair (Mr. Jerry Pickard): That's good.

Okay, so those who would like to take that up, it would be very welcome to the committee.

Mr. Michael Bossin: I just wanted to make a brief comment on the effectiveness of a Federal Court review of a decision made at a port of entry.

First, as you probably understand, the Federal Court does not make a substantive review of that decision. It does not put itself in the place of that decision-maker and say, “Well, if we were to make this decision, we would do X whereas they did Y”. The Federal Court simply reviews the decision to see whether it is in accordance with the law—as set out in the legislation—and whether due process was followed. But it is not a substantive review.

Second, very few people have the ability to make an application to the Federal Court without a lawyer. It's a paper review. You have to have leave of the court under our legislation before you can get before a judge of the Federal Court. All of that is in writing. It is a very legalistic mechanism for review. As our friend from the United States has said, very few people in the United States have access to legal aid in that situation. People at the border don't have easy access to lawyers. So to me it is a bit of an illusion to say that is an effective remedy.

The Vice-Chair (Mr. Jerry Pickard): Alex.

Mr. Alex Neve: Maybe I'll just take the second question.

We frequently hear the assertion, “Don't worry, the understanding is such” or “We have received assurances that....” From a human rights perspective, that's never acceptable. When basic human rights are on the line, we need law, standards, and clear, enforceable words. Agreements and regulations outlive departmental officials; they outlive governments. We need something that endures in a way that will ensure that human rights aren't sacrificed.

º (1635)

The Vice-Chair (Mr. Jerry Pickard): Thank you, Alex.

Janet.

Ms. Janet Dench: On the question of whether the United States follows the same standards, I would just draw your attention to the fact that whatever is happening in the U.S. now is not necessarily what will be happening in the coming months. The U.S. is passing a bill that would put in place a department of homeland security. The asylum officers would be moved to this department. There are a lot of concerns among our NGO colleagues in the U.S. about the effect on asylum decisions of having the officers residing in a department whose main preoccupation is enforcement.

There are, of course, many other political and legal changes that are, or may be, in the offing. This is one of the reasons why we are urging this committee to write into the regulations a requirement that this be brought back to Parliament within six months, so that you can take a look then. If you're worried now, you would maybe want to see what is happening in six months, to see whether you were right to be worried.

The Vice-Chair (Mr. Jerry Pickard): Janina.

Ms. Janina Lebon (National Vice-President, Canada Employment and Immigration Union): First of all, how do they appeal to the Federal Court in the U.S.? There's a legal list, and there are no lawyers, so how do they do it? If they have an organization, such as in Vermont, this can be dealt with, but otherwise they're not going to do it.

From our perspective, you're saying two officers. Are we talking about an officer doing the original interview? Again, there are no guidelines, processes, or procedures. On what information are they going to make this decision? This hasn't been...

We talk about standard operating procedures in one of the later articles, but we haven't got a clue what that means. Is the second officer going to do it under the ministerial delegation review part of it? We don't know. So we have resource issues.

But let's say they come across at a port of entry where there is only one officer working. We have a number of them. So from a practical point of view, there's a lack of resources, a lack of training, and a lack of information. This needs to be revisited in great detail now, not in six months.

The Vice-Chair (Mr. Jerry Pickard): Thank you.

Buti.

Mr. Buti Kale (Senior Protection Officer, United Nations High Commissioner for Refugees): One of the preoccupations of the international community with regard to the U.S. system is the concept of aggravated felonies. This, unfortunately, was not mentioned. It is a concept that was introduced in 1980-81 with the Immigration and Nationality Act, but it was exacerbated in 1996 with the legislation in effect today in the U.S. This simply means those who have been sentenced to, say, a one-year term in prison may be charged with having committed a theft, whether the person had been in the U.S. for 23 years or 25 years. As long as you are not a U.S. citizen, you are liable to be deported. What is worse is that anyone who is considered an aggravated felon, even though they are an asylum-seeker, is not eligible for a withholding of removal, which is in Canada a stay of removal. So if asylum-seekers or refugees are found to be, according to U.S. legislation, aggravated felons, they would also fall under the same legislation, and God only knows what would happen to them.

So that is one of the problems. It is quite a sticky problem, because it is being aggravated as time goes on. It used to be an aggregated term of five years, but now it has gone down to one year. Anything close to pickpocketing, etc., could also be considered an aggravated felony.

The Vice-Chair (Mr. Jerry Pickard): Thank you.

Nick.

Mr. Nick Summers: With regard to the Federal Court review, another issue is that even if somebody is fortunate enough to get a lawyer to do it for them, it is an extremely long process. I have one I filed in February, and we're still waiting for a decision on leave. If we get leave, it will be another six to nine months before it's heard. That is useless to somebody who has been expeditiously removed from the United States or is sitting in detention in the United States.

With regard to your second point, two officers reviewing this, one of our major concerns is that people will arrive at the border without any idea of what is expected of them in the way of evidence, etc. If two officers are going to just look at the same evidence that was received when the person first came to the border, that's not any help at all. There has to be some time for them to get their paperwork together and re-present it.

º (1640)

The Vice-Chair (Mr. Jerry Pickard): Thank you.

Inky.

Mr. Inky Mark (Dauphin—Swan River, PC): Thank you, Mr. Chairman.

One of my colleagues asked me the question this morning, how safe is the United States? I had to think it over again, and that question leads to what we're talking about today. I think that's essentially the key we need to wrestle with. When you look at the purpose of this safe third country, the optics of the public see it as exactly what is said, a safe country. We're talking about the definition of exactly what a safe country is. That has to be dealt with. Perhaps this is a simple solution to a complex problem. Obviously, most of you people would feel that way. We were looking at the numbers, and something like 95%, just under 14,000, came in by land to claim refugee status. I asked the department to break down the countries of origin, and they didn't know. I still don't know. That's the problem. We have these broad, easy solutions to very complex issues. At this point all I have is more and more questions to ask.

The other thing that was mentioned was that the U.K., through court cases, deemed the U.S. to be a safe country. What does that mean on an international scale? We were also informed that the UNHCR is part of this process of scrutiny, and they would have the opportunity to review the process. I don't know what your access to the information is or how regular it will be. There are a lot of unanswered questions still.

The Vice-Chair (Mr. Jerry Pickard): Thank you, Inky.

Alex.

Mr. Alex Neve: I don't want to sound repetitive, but as to how you define safety, what you're hearing most of us say is that there actually is one very central and simple place to look to in formulating that definition, international human rights standards. The Immigration and Refugee Protection Act itself highlights that in making decisions as to whether or not to designate a country in this way, its human rights record must be one of the essential factors that's considered. What you're hearing from us and could hear from many other sources is that when it comes to the specific issue of the U.S. human rights record in the area of refugee protection, there are very significant areas of concern.

Mr. Inky Mark: So who should lead the charge, the United Nations, western countries?

Mr. Alex Neve: I don't know if it's a matter of leading the charge so much as ensuring that if we're going to allow something to go forward as Canadian government policy in entering into an agreement with another country and then putting in place regulations that enforce and implement that agreement, we've got to make sure this test of safety, international human rights standards, is the determinant.

Mr. Inky Mark: Who deems a country to be a safe third country that meets minimum standards?

Mr. Alex Neve: There are many organizations that need to be taken into account, many views. Ultimately, I assume we will have our own adjudication from our court system, much as there has been in the United Kingdom. We have court decisions in Canada that have increasingly exhibited willingness to assess what will happen to someone who is removed from the country, even in the case of the United States, for instance, in death penalty cases, where return to the United States is not possible. We may well be looking at that as the eventual outcome here as well. I've not yet heard any convincing analysis from the department that there's been a solid evaluation of whether this agreement is likely to withstand a challenge under the Charter of Rights, for instance.

Ms. Janina Lebon: With regard to the data, if they know they have 14,000 people, each and every one of them is going to be in the system called FOSS. There's a report on them that tells you the country of birth, country of last permanent residence, the port of entry they came through. So if they came through Fort Erie, we know they came by land. If they came through PIA, they came through Vancouver, or wherever, the data are there. They actually have a unit that does nothing but gather data.

º (1645)

The Vice-Chair (Mr. Jerry Pickard): Thank you, Janina.

Judith.

Ms. Judith Kumin: I wanted to make two points in response to Mr. Mark's questions. The first is that we think it's a rather risky venture to label countries safe or not safe. It's not such a black and white picture. It very often depends on the particulars of an individual's situation, and that's why we have always insisted that it's necessary to look at the situation of the claimant individually. A country that is “safe” for one person might not be “safe” for another.

I also wanted to respond to your question about UNHCR's involvement in the review and monitoring of the agreement under article 8, I think it is. We accepted the invitation to participate in review and monitoring of the agreement in the context of our responsibilities under article 35 of the 1951 convention. Article 35, paragraph 1, says the UNHCR is responsible for monitoring the extent to which states comply with their obligations under the refugee convention. So we think the monitoring, review, or observation of what happens in the framework of this agreement is a very natural part of our article 35 responsibilities. But we have emphasized to our government counterparts, and I think they have accepted it, that we need to do this together with our NGO partners and the legal community. We obviously don't have an army of people stationed all along the border, so we're going to need to enlist all our partners on both sides of the border if we're going to have some sort of composite picture of how well this agreement is working. It will have to be a collaborative effort, not just a UNHCR effort. I hope that's why article 8 was amended in the final version, to make specific reference to the input of non-governmental organizations in this process.

The Vice-Chair (Mr. Jerry Pickard): Thank you very much, Judith.

Now I have Anita, and then back to Betty.

Ms. Anita Neville (Winnipeg South Centre, Lib.): Thank you.

Judith touched a little bit on my concerns. What I'm hearing from everybody here is that while there's a common agreement between two countries, what we're dealing with is a very different value system, a very different culture that creates all kinds of difficulties in implementing the agreement.

I'm wondering if you could just tell me a little more about what you anticipate in two areas under this agreement--and I appreciate you've made recommendations--the unaccompanied minor, which gives me great concern, and the potential of human smuggling, how you see that playing itself out. I direct it to any of you.

The Vice-Chair (Mr. Jerry Pickard): Nick.

Mr. Nick Summers: To deal with human smuggling first, it is interesting that we have 14,000 names in the FOSS system, etc. We're not going to have that in the future, because we're going to have what the department euphemistically refers to as irregular flow of refugees. In other words, they're going to be coming across the border at night, across rivers, and in the backs of people's trucks, and we're never going to know who they are or where they came from. That is a major concern to us, and frankly, it is one of the puzzlements to us why the government is proceeding with this. What this agreement, and by extension, these regulations, does is deregularize the flow of refugees across our border. Right now they come to the border, they present themselves, they fill out forms, they're fingerprinted, they're photographed, and they go into the process. We're now going to create this whole new class of refugees who have been through none of that, will go underground, and may, from time to time, arise and make a claim in-land, or may never bother, because they don't think they could pass or because they don't need to. So we see a very serious possibility of smuggling arising.

People are choosing to come to Canada. The United States is not beloved around the world. There are people who would rather come to Canada--I don't think we should find that surprising. There are people who come to Canada for particular reasons, because they have communities here they know they will be welcome in, because they have extended families they know will support them, because Canada is considered one of the best countries in the world to live in--it's a reason to come here. So people will want to come whether we tell them they can come across the border or not, and there is a very serious possibility of smuggling.

º (1650)

The Vice-Chair (Mr. Jerry Pickard): Janina.

Ms. Janina Lebon: The issue of smuggling is of grave concern. The department has created the integrated border enforcement teams--with no funding, by the way; it's being stolen from other places. We have those long borders--it's in our brief. You have the Quebec-U.S. border, you have Ontario east--Akwesasne is notorious--you have anywhere from Pigeon River right out west. That is the fear, that they're going to keep coming across and we won't know who they are.

On a secondary issue, yes, they do get here, but some of them--and we know this--could be criminals, they could be real refugees, and they could also have health problems. They're going to be underground, so how do we find them?

The Vice-Chair (Mr. Jerry Pickard): Thank you, Janina.

Michael.

Mr. Michael Bossin: One added element of the smuggling that wasn't mentioned is that people are going to do crazy and dangerous things to get here. As you probably all know, there's a tunnel that goes under the English Channel, and there's a refugee camp they're finally going to move, but it's in France. There are high-speed trains, of course, that's what the tunnel was built for. Every day people risk their lives to get over electric fences and God knows what else to try to make it through that tunnel where the high-speed trains operate. It's extremely dangerous. People are constantly being injured, and yet they continue to do it.

I read an interview with the head of the Immigration and Naturalization Service post in Buffalo, who said the way to get across the border where he is, is across the Niagara River, and it is deceptively dangerous and people will die trying to do this. I believe approximately 300 people died trying to get from Mexico into the United States last year. People will do crazy and dangerous things.

The Vice-Chair (Mr. Jerry Pickard): Thank you, Michael.

Judith.

Ms. Judith Kumin: I want to answer the other part of the question concerning unaccompanied children. There are two things I'd like to say.

First, we think it's very positive that the Canadian negotiating team has suggested and accepted writing into article 4 an exception for unaccompanied children. That is really very positive, and it recognizes the vulnerability of these children. It means that an unaccompanied child who seeks entry to Canada will be allowed to enter under article 4.

But it raises two problems. As I mentioned earlier, how do you identify a child as being truly unaccompanied? We know there are a lot of children who are in the hands of traffickers or smugglers and who need to be separated and protected from people who would exploit them. That's a lot to ask of an immigration officer at the border because it's not always evident what the relationship is between a child and an accompanying adult. If the accompanying man says he's the uncle and the child has been told to keep quiet, it's very hard to know.

So we think competent child welfare personnel, in individual cases, may need to be involved in deciding whether the child is truly unaccompanied and in need of special protection and care.

The other part of your question is way beyond the scope of the agreement. It also raises the question of what happens to these children once they cross the Canadian border. As you may know, particularly in Ontario, we have a special problem because the children's aid societies are not mandated to look after children who are older than 15. So the 16- and 17-year-olds--and the majority of these children are in the 16- and 17-year-old age range--are left to their own devices. I don't think we would want our own 16- and 17-year-olds turned loose on the streets of Abidjan or Kabul, so we can imagine how difficult it is for a 16-year-old girl from let's say Sierra Leone who finds herself alone on the streets of Toronto and what sort of things she might be vulnerable to.

So there's the issue of identification, but then there's the issue of referral to care and how you make sure these children get into proper care, custody, and guardianship, so they're not further exploited after they get into the country.

º (1655)

The Vice-Chair (Mr. Jerry Pickard): Thank you, Judith.

Betty.

Ms. Betty Hinton (Kamloops, Thompson and Highland Valleys, Canadian Alliance): I'm here because I was substituting for my colleague, who had to make a speech in the House. Fortunately for me she's back on time. But this has been fascinating to listen to, and I have read what was in front of me as quickly as I could.

I have one question, and then I will defer to my colleague. I'm referring to the pages from Amnesty International. A comment in here says:

In many instances detention is mandatory, including anyone arriving in the United States by boat and anyone arriving with fraudulent or no travel documents.

I gather from the balance of what you said in here that you're opposed to that. I don't understand why, because we have issues we have to be concerned about, such as diseases like tuberculosis coming into this country. There are reasons for the steps that are taken. So I would be interested to hear your response.

Mr. Alex Neve: We're certainly by no means suggesting that detention is improper. There are many circumstances in which detention is necessary and certainly many instances in which we would not oppose detention.

What we highlight, though, is that decisions, laws, and policies regarding detention must be in keeping with what international law recognizes as being permissible grounds to detain people. Broad, sweeping categories of that description--anyone arriving by boat, detention; anyone arriving with fraudulent or improper documentation, detention--are simply not recognized in international law.

International law says the decision should look at factors such as whether that individual, not their broad-based group, poses a flight risk, for instance, and is likely to abscond or take off if allowed to go free, and whether or not that individual poses some sort of danger to society. Those are the kinds of individual determinations that are necessary. When it comes to assigning these broad-based categories of mandatory detention status, that's where we have the concern.

The Vice-Chair (Mr. Jerry Pickard): Thank you, Alex.

Betty

Ms. Betty Hinton: In our own country of Canada we have lost track of quite a few people who have come here. We don't know where they are any more because we have a different sort of process. I find that a fearsome way of handling things, because we're in a different situation today than we were five years ago. After September 11, I think it's important to know who is coming into the country and how they got here. I would like to see some paperwork on people. I also want to see the health criteria, to protect Canadian citizens.

I'm also wondering if you disagree with me on the idea that North America, including Canada, the United States, and Mexico, has a new problem to face now and may need to look at new solutions that also take into consideration what is internationally accepted.

The Vice-Chair (Mr. Jerry Pickard): I'll go to Janina.

Ms. Janina Lebon: Under IRPA there is a section that says persons can be detained if they have no documentation. Having heard that international law, that comment, it's very interesting because there's currently a pilot project going on at one of the airports. Anybody who arrives without documentation will be detained until they provide some form of documentation. Immigration has a pilot project ongoing. Some officers have concerns because they feel their discretionary authority to detain or not detain is being impinged upon, but the bottom line is that there is this pilot project, and if you don't have documentation you shall be detained. So they're coming down.

The Vice-Chair (Mr. Jerry Pickard): Thank you, Janina.

Do any other witnesses wish to comment on that? You guys are all set now, so we can just go on.

Madeleine.

[Translation]

Ms. Madeleine Dalphond-Guiral: In the Canada Gazette published on October 26, 2002, the government said that the ONGs had been consulted on the draft agreement and that their objections were merely objections in principle. I would like to hear your assessment of the type of consultation which was held with you: in my opinion, you represent NGOs that are particularly significant for the agreement and the regulations. Was the consultative process that you engaged in respectful or were you heard simply because there was an obligation to hear you? For example, the Office of the High Commissioner made several suggestions that were not retained. Was this really consultation?

» (1700)

Ms. Janet Dench: We are almost continually discussing a whole range of subjects with the Immigration Department. We find it very useful to consult, and that is why we almost never refuse to talk to them, to give our point of view. But we are disappointed about one thing: on the most fundamental issues, such as the decision to negotiate an agreement with the United States, decisions are often made before we are consulted, which means that the consultation takes place after the department or the minister has already decided on the overall policy direction; we can have an impact on the details but it is too late to influence the decision on the basic issue. The same disappointment occurred regarding the decision not to implement the refugee appeal division. We repeatedly asked the government to engage in broader discussions, since we understand that the government has concerns about, for example, a potential increase in refugee claims. We understand that this has an impact, but we would still like to be able to sit down with them and say: “Here is the situation. What are the possible options for dealing with it without violating the rights of refugees?” Up to now, we have not had that opportunity.

[English]

The Vice-Chair (Mr. Jerry Pickard): Thank you, Janet.

Madeleine, are you okay with that now?

Ms. Madeleine Dalphond-Guiral: Yes.

The Vice-Chair (Mr. Jerry Pickard): Buti.

Mr. Buti Kale: The consultations between the government and UNHCR were sincere, and some of our recommendations were taken into account by the government. Even at the last phase of consultations, we were glad to see that some of the issues were incorporated into what is maybe going to be the final text. As far as that is concerned, we're grateful, but as Judith put it, the difficulty is that you have the cart before the horse. It's not an ideal situation when you have two different regimes with two different cultures. These are two different systems, and their concerns are the two sides of the border.

There are problems with the expedited removals in the U.S. Maybe that was not explained, but one of the elements with regard to the process in the U.S. is that until 2001 NGOs were not allowed to monitor the functioning of the system, which is one of the fundamental problems the international community has expressed regarding the system itself. At one point expedited removal was even nicknamed the black box, because nobody knew what was going on at the secondary inspection. Only UNHCR until 2001 had access to secondary inspection, but UNHCR has very limited resources, and that is probably why it was suggested that with regard to this agreement, NGOs be involved. While it is said that input will be received from NGOs, it has still to be determined what kind of input. It has to be a meaningful monitoring of the implementation of the agreement, because certain concerns have been expressed with regard to the U.S. system, let's say, since we're talking on this side of the border. I'm sure others in the U.S. have qualms about the Canadian system.

» (1705)

The Vice-Chair (Mr. Jerry Pickard): Thank you.

Alex.

Mr. Alex Neve: I want to pick up the theme that what's lacking is good consultation on the big fundamental questions. To pick up the horse and cart metaphor, we often get a chance, perhaps, to comment with respect to the cart, but not with respect to the horse. It's not just the relatively short period with respect to this agreement; this goes back to 1995-96, when there was the first initiative to try to negotiate an agreement of this sort. We and others have repeatedly put these major concerns on the table about the fact that this agreement will expose individuals to unlawful detention, this agreement will put women at risk. We have not had a response from government. We have not had the response that clearly says, we disagree with you for the following reasons, we reject this evidence, this evidence is not reliable, or, we agree with you but are nonetheless prepared to go ahead with the agreement, for the following reasons. The consultation, therefore, often feels one-sided. We're asked to provide our input, but we don't get the two-way discussion going, and with some of these fundamentals, that is vital.

The Vice-Chair (Mr. Jerry Pickard): Thank you.

Andrew.

Mr. Andrew Telegdi: Thank you, Mr. Chairman.

I think so much of the legislation we're coming forward with now is driven by 9/11 and the fallout because of it, and it's almost frightening. We came out as refugees in 1957, and it was the Hungarian revolution. I think all the freedom fighters would be terrorists today, that's how they would be classified, because it's a totally different climate, and I see it happening.

As to our being similar in values to the United States, all you have to do is look at what happened to the boat people on a regular basis. We had the boats coming to our west coast, we put them through due process, we made that available. In the United States, if you have people coming from Cuba and they can keep you away from landing, you never get to touch shore and they ship you off. If you land from Cuba, you're allowed freedom, for the most part, while your case is heard; if you're a Haitian you don't get that. Things are so incredibly different.

I'm sort of struggling with how one responds to this change we have had because of 9/11. I think it's really important that the case be made that if this piece of legislation comes in, not only is it not going to be effective, it's going to be counterproductive, if at the end of the day we're going to have more people underground living in Canada, and at the same time we stoke up the people smugglers, because once they see there's a profit to be made, that's going to feed itself. We have to look at legislation, look back and see what happened in the last number of years with given numbers, and we have to come up with some scenarios. If we're going to be totally counterproductive in what we do, that's the light we have to look at with this thing, because we're battling things such as the need to get tough on terrorism. Of course we have to get tough on terrorism, but is this going to accomplish that?

The Vice-Chair (Mr. Jerry Pickard): Thank you, Andrew.

Janet.

Ms. Janet Dench: In relation to your comments about being counterproductive, there are examples from our neighbour to the south. The U.S. has invested very heavily in securing its southern border, with a view to preventing irregular crossings, and studies have shown that it has been ineffective. A lot of money has been spent, but people still cross. In fact, people tend to stay longer in the United States because of the border enforcement measures, and as Alex mentioned, many people have died. Europe is another example. They have already tried the safe third country measures, they've tried other kinds of measures, and yet the numbers of claimants in Europe continue at levels the European countries say are far beyond what they could bear.

The second point I want to make is in relation to the comments about values, the interdiction of boats, and how people arriving by boat are treated. I think this is a good example of where Canadian and U.S. values are very different. The Canadian government has clearly said it does not believe interdicting boats on the high seas is a responsible way to go. The United States, despite international condemnation, has continued with its interdiction programs.

I'd like to link in here the question of the side deal, which I know the committee was looking at this morning. This side deal, as far as we understand it, is about forcing Canada to be complicit in the interdictions that are happening on the high seas. What the United States wants to be able to do is send some of the refugees they might interdict on the high seas to Canada. I believe they have in the past asked the Canadian government to take some of these refugees, but on the basis of principle, Canada has not wanted to participate in this, because when the United States interdicts them in contravention of international law, we would be helping them out if we simply say, yes, okay, we'll take some of these and solve what you are creating as a problem. What we see happening is that in return for the United States signing this agreement, the United States has pressured Canada into accepting this side deal, the text of which was originally secret, but over the summer was released to us. This particular side deal is not reciprocal; it is a one-way question of Canada receiving 200 refugees that are referred from the United States. The hypothesis we're talking about with people interdicted on the high seas is supported by the wording of the agreement, which refers to the territories of the United States or Canada as defined in their immigration legislation. Guantanamo, of course, is not part of the United States according to its immigration legislation.

» (1710)

The Vice-Chair (Mr. Jerry Pickard): Thank you.

Michèle.

Ms. Michèle Jenness: To go back to what you were saying about people crossing the border irregularly in an unstable dynamic, the INS general counsel in the first negotiations between NGOs and the State Department and INS on August 1, when faced with the fact that it would add 15,000 people to the asylum rolls in the United States, said, I don't think so, I think it would be more like 5,000 or 6,000. He thought roughly 5,000 people would not apply to gain access to Canada. He admitted that the other 5,000 or 6,000 would cross the border with smugglers or in a regular manner.

The Vice-Chair (Mr. Jerry Pickard): Alex, then Nick.

Mr. Alex Neve: I'd just like to pick up on your overall disquiet about the post-September 11 context in which this is all playing out. I share some of your sentiments that, from our perspective, all of us clearly want real security. We want lasting security, we want durable security, and we want security that means something for everyone, no matter where they live in this world. The way forward in achieving that level of security, that nature of security, has to be not in moving away from basic fundamental human rights standards, but in fact embracing them in ways in which they never truly have been embraced. Part of the reason we have insecurity and misery in the world, of course, is that governments in all corners of the planet have never lived up to the obligations they have within that system.

When it comes to the refugee protection system, we certainly want to make sure there's a refugee protection system in the United States and in Canada that, amongst other things, will identify human rights abusers—including alleged terrorists—and will ensure that they face justice. We are not convinced at all that this agreement achieves that goal. It would seem more reasonable to us that what we need to be hearing is more about improved intelligence-gathering strategies and information-sharing strategies.

As you've heard from many of us, a crude instrument of this sort simply exposes countless individuals to the risk of unlawful detention, puts women at risk of not receiving protection from very compelling harms, and is going to increase the likelihood that people are going to take dangerous, stupid chances—as Michael said—and cross borders illegally. Such an instrument will only further misery and insecurity and does not seem, from our perspective, to be getting to the nub of the problem, which is how we make sure human rights abusers of all description in this world face the justice they should.

» (1715)

The Vice-Chair (Mr. Jerry Pickard): Nick.

Mr. Nick Summers: In speaking of this, it's important to remember that Citizenship and Immigration's push to have a “safe third country” agreement with the United States has nothing to do with 9/11. They've been looking for this since 1996, and perhaps it's more reprehensible because of that. It would be one thing if this was out of the motivation to protect Canadian citizens in Canada. But this is a way of easing an administrative burden. The numbers are high, we have limited resources, and here's a way we can get rid of 15,000 people.

The reason it's coming forward now is that, because of 9/11, the United States is finally receptive. They see something they can get out of this, that being the side deal, the sharing of security information, a smart border, and all of that. Canada now has something to trade in return for the United States agreeing to take back all these people, so one can understand why the U.S. is taking the steps they're taking. They're moving into more of a fortress mentality. But is it sufficient for administrative and resource issues to cause all this misery and risk to refugees and to turn our backs on our international obligations?

The Vice-Chair (Mr. Jerry Pickard): Thank you, Nick.

Judy.

Ms. Judy Wasylycia-Leis: I think you're right, Nick. Under the guise of protecting Canadians from terrorism, the government has found a convenient way to get rid of a backlog. However, based on the testimony from Jeannette and Janina, it would seem to me that a huge, other set of problems is being created administratively, and it will put a resource burden and a human resource burden on existing systems, but nobody's thinking about that. I think it would be interesting to hear from the union on how they intend to get this case across to the government so that we can actually slow down this process.

As you know, this is being fast-tracked. The Gazette provisions give us until November 25 to have all comments in and for this committee to complete its work. That's one week from yesterday, so time is running out. But huge concerns have been raised that we should really spend some time addressing as a committee...in order that we can make recommendations. I'm therefore wondering if anybody has any strategies for how we can actually slow things down, convince the minister, and get through to officials. That's one issue.

With respect to the other one, I just want to go back to Judith on the issue of unaccompanied children.

The Vice-Chair (Mr. Jerry Pickard): Maybe we'll do one first, and we'll do the second if we have time.

Jeannette.

Ms. Jeannette Meunier-McKay: It's a bit ironic that you talked about consultation a while ago with Madeleine, because the consultation with the union has been very limited. Even though we've brought up the resource issue in the past, it always seems to be ignored. Every time they bring in new programs, the funding never allows for the extra resources.

All the government has to do is go back to all the statistics and the backlog that has already been created now. Look at what's happening with the claims in Vegreville, and the spousal claims, and the backlog that has been there since February. That just gives a good indication that any additional programs and any additional regulations put in place without the additional funding required to hire are not going to be effective.

Plus, we had terms that were trained and whatnot, and with the study that happened during our negotiations, most of those terms are being let go. Again, the issue is always lack of funding. You're letting go of a knowledge base there that could possibly help, but it's no longer going to be there.

And you also have the IRB, the Immigration and Refugee Board. It has approximately 50,000-plus claims, yet this process is going to create even more.

If the government actually looked at the statistics, at the resources we have now, and at the resources that are usually required when new programs come in, they would know that what we're saying is true and factual. They wouldn't go ahead with this without putting in the additional funding to increase the resources.

» (1720)

The Vice-Chair (Mr. Jerry Pickard): Janina.

Ms. Janina Lebon: Just to add to that, we now have over 50,000 new refugee claims that are in the process and are waiting to be dealt with. Those that have been dealt with go into a separate process.

I can speak for some of the offices in Ontario. We have a year-long waiting list before they're going to be completed. On top of that, we have the spousal applications. It just keeps going on and on, and ultimately—and I hate to say the word—it's almost as if someone's looking to have another amnesty or another administrative review. Otherwise, how do you clean the backlog up? That's not the way to do it.

The Vice-Chair (Mr. Jerry Pickard): Judy, you had one more for Judith.

Ms. Judy Wasylycia-Leis: I'd still love to hear if anybody has any ideas on how we can slow down this process. Is there any hope that the U.S. might be pulling back a bit? Is there any sign that we have some breathing space? I'll leave that open on the table if anybody wants to answer it, and I'll just put my other question to Judith on unaccompanied children.

I hear what you're saying, Judith, in terms of it being important, in the context of this kind of safe third country agreement, to have provisions for unaccompanied minors, as an escape hatch. But I mentioned this morning that I can't help but think about the fact that families will come to the border wanting to come into Canada, will not be eligible under this agreement, and will in fact find a way to send their children on unaccompanied in order for them to find their way in Canada and start a new life. The family may never be joined back together, and we will have created another whole problem that wouldn't be there if we didn't have this agreement. I still worry.

It reminds me of the underground railway situation with slavery. Families would send their kids on the underground railway and to freedom in Canada, never to be joined again. I just worry about that.

The Vice-Chair (Mr. Jerry Pickard): Judith.

Ms. Judith Kumin: I share your concern. I think the scenario you've outlined is one the government has obviously thought of. That is, if there's an exception for unaccompanied minors, what's to stop a family from sending their 14-year-old girl to the border and telling her to say her parents are lost or dead? The reality is that with the way the agreement is worded, if an immigration officer can get the girl to admit her parents are in the U.S., she doesn't qualify to enter, because an unaccompanied minor has neither a parent in the U.S. nor in Canada. Of course, it would be difficult to interview a girl and get accurate information under those circumstances if she has been instructed by her parents to say one thing and the immigration officer is asking her another, and if she doesn't speak English or French. You can imagine the difficulties.

The other piece of the puzzle is that of an unaccompanied child who does enter Canada under the agreement—and let's assume, for the purposes of the discussion, that this is a bona fide unaccompanied child, not one whose parents are waiting in the wings in Buffalo; she's a real unaccompanied child who really has lost her parents—and whose parents are found a year later or eighteen months later and show up at the Canadian border. Under the agreement, they're not eligible to enter, because a person under 18 cannot be an anchor relative for a person standing at the border. That's another area in which the discretionary provision of article 6 should be used, but the regulations as they're now written would not permit it.

So I think there are several constellations around unaccompanied children that may well be problematic. You've certainly identified one of them, but we can probably think of others as we work through this.

» (1725)

The Vice-Chair (Mr. Jerry Pickard): Nick.

Mr. Nick Summers: Just to follow up on Judith's example, if that young girl comes to Canada and isn't accepted as a refugee by Canada, she can't go back to the States to join with her parents who have now been found, because, having been found to be a refugee in Canada, she's not eligible to make a claim in the United States. At some point, once she reaches adulthood, she may make an application as an independent immigrant and so on, but we're talking about years of separation for a family.

To go back to your previous question asking for some ruminations about where we go with this, I can just tell you that we, CCR, and some of the others here, are regularly in contact with our colleagues at NGOs all across the U.S. It's very telling that they, I think, unanimously oppose this agreement as well and have been working extremely hard with their government to try to put a stop to it. They also realize it's going to harm the people they are caring for on their way to Canada and who are then going to be coming back to them distressed and without the rights they should have.

They have not had a lot of success either. They've been doing a little better and have actually gotten a few senators, other state officials, etc., to sign letters opposing the agreement, but so far it seems like this juggernaut is continuing on. What the solution is, I'm not sure. The Canadian department certainly is not listening to us at this point.

The Vice-Chair (Mr. Jerry Pickard): Janet.

Ms. Janet Dench: I wanted to touch on the remark you were making about people feeling forced to send their children up to the border unaccompanied. I would just remark that whenever governments bring about inflexible rules that are not responsive to the realities of people, then when people are in difficult circumstances, they will do things that, normally speaking, they wouldn't want to do. People who are basically honest will feel compelled to do things under the table.

I'm thinking of the fact that it's well known that many of the people who came to Canada after the Second World War invented professions for themselves because the Canadian government at the time admitted you to Canada if you were exercising a certain profession. Nowadays, the Canadian government is taking a very strict line about any kind of misrepresentation. It would be interesting to see how many of the distinguished elder representatives of our communities could in fact be found to be guilty of misrepresentation on their entry into Canada.

What we see with all of these kinds of rules that prevent refugees from coming in the front door is that they look for back doors to get through. Our position is that refugees should be protected and we should open the front door to them.

The Vice-Chair (Mr. Jerry Pickard): Alex.

Mr. Alex Neve: I'd just like to pick up on the question about strategies for success. To state the obvious, I guess one of the reasons why we're all here in front of you today is we're hoping you will play an important role in this process.

One of the unfortunate things about the way in which this issue has developed is there hasn't been an opportunity at an earlier stage for parliamentary review of the whole proposition of entering into an agreement. This is only happening at this later stage, where we're all being instructed that this is about the regulations and not about the agreement itself.

Nonetheless, I'd urge this committee to use this as an opportunity to highlight concerns about the big principles, the big questions, and the big human rights problems that lie behind this. This could be quite helpful.

The Vice-Chair (Mr. Jerry Pickard): Yvon.

[Translation]

Mr. Yvon Charbonneau: My question is on the side deal.

This morning, the officials told us that the agreement would mean that Canada could receive 200 people a year, but that Canada would continue to make its own decisions in this regard. They also told us that the agreement was fully reciprocal: we would be able to send them 200 people a year. They were very definite about that this morning. I would like to hear you be more explicit. Someone referred to this issue earlier.

I would also like you to take the opportunity to tell us what you feel is the driving force behind this side deal. Why do we have it? What pushes governments to negotiate a side deal when there is already an official agreement? Can they not put one within the other? What problem were they trying to resolve?

» (1730)

[English]

In conclusion, Mr. Chair, I would like to invite our guest to be really comfortable and to tell us very frankly if there is any potential benefit with the draft regulations.

I heard you talk about the negative aspects. As Canadian citizens, or as organizations involved in the defence of human rights or in the protection of refugees, is there anything positive? Feel comfortable to....

The Vice-Chair (Mr. Jerry Pickard): If we can do this in a concise way and get everybody there, we do have time for every person at the table to have another question. So we'll try to go through it. But feel comfortable, as Yvon has said, to say why you think this is happening—if you have a comment.

Alex.

Mr. Alex Neve: On the question of the bilateral accord, we haven't followed this closely enough. I think I'll defer to others on this specific point.

[Translation]

Ms. Janet Dench: Well, the side deal contains a clause that is definitely reciprocal, in that either country can ask the other to accept recommendations for the resettlement of certain refugees.

However, the side deal, which is the text that must be signed by the two countries to implement this agreement in principle, is not reciprocal. The version that the government provided to us indicates only that the United States can send up to 200 people a year to Canada.

We deduce from that that the United States, which sees no advantage to itself in the general agreement, tried to take advantage of the opportunity to get something that it wanted from Canada. As I said earlier, the United States has this policy of intercepting refugees and they are trying to find countries that will take these refugees.

Under the agreement, the United States could make 200 recommendations a year. It is true that the refugees would have to be accepted under Canadian laws. However, I see that the act requires only that these people be genuine refugees in keeping with the definition of “refugee” and that they meet the other criteria in the act in order to be accepted. The act does not give the Government of Canada the possibility of refusing refugees for reasons of principle. For example, the government cannot say that it does not want to resettle certain refugees because they have been intercepted and that it is opposed in principle to that practice.

I imagine that the United States asked to have something put into the agreement that would require the Canadian government to respond to these requests. If the refugees meet the Canadian criteria, our government will be obliged to accept them even if, from a policy point of view, it is not in favour of this practice.

[English]

The Vice-Chair (Mr. Jerry Pickard): Thank you. Anyone else?

Jeannette.

Ms. Jeannette Meunier-McKay: I think I'll be short and sweet on this one. If you want an honest opinion, I think it's a U.S.-driven regulation, or whatever. If this were to be in place, it would offer a lot less protection than what we have now. It seems that we're prepared to trade human rights issues for an administrative problem. So do I see benefits in it? No.

The Vice-Chair (Mr. Jerry Pickard): Thank you.

Yvon.

Mr. Yvon Charbonneau: As Canadian citizens or people involved in the defence of human rights, is anyone seeing a benefit?

» (1735)

[Translation]

Ms. Madeleine Dalphond-Guiral: The situation is pretty clear, isn't it?

[English]

The Vice-Chair (Mr. Jerry Pickard): Okay--

Ms. Lynne Yelich: You said you see it as having less protection. Would you just elaborate a little bit on that?

The Vice-Chair (Mr. Jerry Pickard): Inky, I'm sorry, you were next up. Would you like to just wait for a minute or go on?

Ms. Lynne Yelich: Go ahead, Inky.

Mr. Inky Mark: I was going to say that it was perhaps negligent on the part of the committee when we were talking about this safe third country issue. I've been here over two years, and I know we've received some preliminary information about safe third. On the surface it sounded like a good solution to a problem, but when you start dealing with it...

On the issue of safe third, we don't know which countries have agreements in place, what the advantages are, and the problems they're facing. I still don't know, to this very day, what experience other nations have had with safe third.

This morning we were informed that CIC would expect to turn back between 5,000 and 6,000 claimants who come across by land. At the same time, CIC said, “Well, if they arrive by air, the safe third country agreement doesn't apply”. If this is the case, do you think those same 5,000 to 6,000 will come by air? So we wonder what we are trying to resolve here. What is the purpose of this program? I'd like to hear your comments.

Mr. Nick Summers: Not necessarily. It's much more difficult to get on an airplane than it is to walk across the border. You have to have money to buy the ticket, you have to have the right documentation, and you have to have access to passports, etc.

Mr. Inky Mark: These aren't undocumented refugees.

Mr. Nick Summers: The problem is many refugees are undocumented. This is a fact of life with regard to refugees. Many of them leave their countries on very short notice. Many of them come from countries where there is no effective government that can give them the documentation they need to travel internationally. Some have the money to buy false documents, many don't. Some come with inadequate documentation. Unfortunately, many of them are not going to be able to take that route by air, boat, or however else they want to come. The effect is the poorer refugees, the ones probably in greatest need, are kept out.

The Vice-Chair (Mr. Jerry Pickard): Alex.

Mr. Alex Neve: I think your question picks up on something we have found troubling and difficult throughout the several years of work around this issue. It's been next to impossible to get a clear statement from government on what problem needs fixing here.

If we had a clear statement on what the problem was, I think all of us would be better able to engage in a meaningful process of dialogue and consultation on whether or not this agreement even came close to providing a solution to that problem, and we could make more constructive recommendations on alternatives, etc.

Instead, we've sort of been dancing with ghosts here. There is a bit of a post-September 11 piece there, but that's never been clearly stated. Sometimes there are suggestions that this is about repeat claims between the two countries, but that's never been documented or clearly stated. Sometimes, in a larger sense, it's just put out there as a general concern about trying to manage irregular refugee flows.

The problem has not been put in front of the Canadian people, so that Parliament and those who are following this issue can provide meaningful input into a development that is going to seriously jeopardize the rights of many people.

The Vice-Chair (Mr. Jerry Pickard): Is there anyone else?

Judith.

Ms. Judith Kumin: Since Mr. Mark said he didn't have a lot of information about the experience of other countries, I thought I would share just one bit of experience.

On July 1, 1993, Germany enacted a safe third country rule that related to all nine countries with which Germany has land borders. It's a little more complicated than the U.S.-Canada situation. But the German constitution then designated all nine countries bordering Germany as safe third countries, and determined that no one who sought entry from one of those nine countries overland would be allowed to enter and make a claim. The main purpose of the agreement was to reduce the number of people applying for asylum in Germany.

So overnight, after July 1, 1993, no one applied for asylum at the land borders because there were no exceptions to the agreement, unlike the proposed Canada-U.S. text--no article 4 exemptions. Yet since then--some years more, some years less--approximately 100,000 people a year applied for asylum in Germany. They all crossed the border illegally and applied inland.

» (1740)

The Vice-Chair (Mr. Jerry Pickard): Thank you, Judith.

Now we'll go to Lynne.

Ms. Lynne Yelich: I just wanted to pick up on something Janina said, and maybe Jeannette can help me. You said there was a backlog of approximately 50,000, and you mentioned spousal applications, etc. How do you prioritize those? How do you handle them?

You never got the resources we thought you were going to be getting through the committee, which I thought we had talked about it. But do you prioritize? Do you say the spouses first, the refugees first...

Ms. Jeannette Meunier-McKay: No, the department has done that itself, whether we agreed with it or not. We talked about consultation, and how our members who actually do the work may find areas where we could prioritize, but the instructions are given by the employer--basically CIC--and they have to deal with them.

The members in Vegreville brought the spousal applications to their attention and said, “We need to deal with these. It's unacceptable that some of these date back to February of this year and they're still not being dealt with.” They were basically told they were going to put them on the back burner, and they had identified other priorities.

So there is no consultation, or very little consultation, prior to making any of those decisions. The decisions are made before we get to have any input. That's the same pretty well across the board. It's very difficult to prioritize.

Ms. Lynne Yelich: So this third safe haven agreement will help you with your backlog, will it?

Ms. Jeannette Meunier-McKay: No, it won't. If you look at the way it's written, it simply snowballs. Where it may reduce work in one area, it will create more in the other. And in our brief we outlined the various areas where the increase in the workload will occur. When you look at the enforcement and removal officers, that will create a backlog there. That would mean, except for the rare exceptions, another increase in the refugee claim.

The Vice-Chair (Mr. Jerry Pickard): Thank you.

Madeleine.

[Translation]

Ms. Madeleine Dalphond-Guiral: My question is for Jeannette.

Everyone seems to agree that there is no advantage to this agreement or the regulations connected with it. Your members work in Canada's employment and immigration centres. There is no way of knowing how many people will decide to enter Canada illegally, but those people are going to have to live and work, unless they decide to take up stealing, which is a bit of a problem if you are trying to stay out of sight. So it is reasonable to think that most people who come in illegally and want to find a place where they feel safe will go to the big cities. These people will go to Montreal, Toronto and Vancouver, right? What pressures will that put on the job market?

Right now, the economic situation in Canada is not too bad, but if the job market went soft, might that not lead, among other things, to a certain amount of intolerance?

» (1745)

[English]

Mr. Alan Lennon (Senior Union Representative, Canada Employment and Immigration Union): I think the point Judith made earlier is the key one here. In terms of the labour market, things don't really change very much. Those people who now come to Canada and make claims and are now part of our society and survive documented as refugee claimants will simply enter the country illegally, be undocumented, and continue to survive, as they presently do as they move across the world to make their claim. So the actual number of people and number of claims really won't change very much, except perhaps, I would suggest, in the first three- or four-month period when this regulation is in effect and people arrive at the border not knowing what's going to happen to them, and they will get kicked back and end up in situations with the Americans. Very quickly they'll figure that out and they simply won't arrive at our border, except inland, because they'll enter illegally.

I think increased illegal entry into the country will help to create intolerance because these people will essentially be living in an underground economy in situations where they have to survive somehow.

The Vice-Chair (Mr. Jerry Pickard): Any further comment?

Judith.

Ms. Judith Kumin: To highlight another resource issue, which I'm sure you've thought of, and I think both Jeannette and Janina previously alluded to, if the agreement has the effect of diverting claims that are currently made at the border to inland processing centres of Citizenship and Immigration, then of course there needs to be a corresponding shift in resources of Citizenship and Immigration. Otherwise, instead of having a backlog at the border, you will have a backlog in Toronto or in Montreal.

I think it will have the effect that Alan was outlining. If there is a long waiting period to have your eligibility determined by Citizenship and Immigration, you would have a larger number of people staying in an irregular situation in the cities, with all of the things that go with that.

One could say there would be an advantage to encouraging people to apply at the border, because at least you have a way of managing the flow, which you don't necessarily have if people cross in an irregular fashion and then simply converge on one or two processing centres inland. In that scenario, they would need to have their resources increased to cope with it.

The Vice-Chair (Mr. Jerry Pickard): Andrew.

Mr. Andrew Telegdi: As I mentioned earlier, I think a lot of legislation is coming forward because of 9/11. I dare say that 9/11 is expediting bringing this back. Bill C-18 is another piece of legislation that's going to be coming up for debate very soon. It was a failed piece of legislation that's coming back with some things tagged on from 9/11.

The challenge for us—who happen to believe that human rights and civil liberties are important—is to make sure our fellow Canadians understand what it entails. Until we have these conditions apply in the rest of the world, we're going to keep having refugee and human rights problems—and of course the problems will never stop.

I just saw a piece in the Ottawa Citizen on the weekend in which 54% of Canadians could not name any of the rights guaranteed to them by the charter. This is really frightening, because when you think about why we have the charter, we have it because of the things that happened in the past, which we want to make sure do not repeat themselves. I know Inky Mark is working on a piece of legislation now that deals with recognition of what happened to Canadians of Ukrainian descent. It was all of these many, many things that happened in our history that resulted in the charter. It's almost an atonement, if you will, for past injustices.

I hope it's wrong, but it's really sad that 54% of Canadians, according to this survey, said they couldn't name one right guaranteed by the charter. That's the challenge for us, to make sure people understand that human rights and civil liberties are not things that are superfluous when things get tough, but are really, in the end, the solution if we cannot have it applied internationally.

» (1750)

The Vice-Chair (Mr. Jerry Pickard): Thank you, Andrew. I think that was a rather general statement in which you've made your point very clearly. If anyone wishes to respond....

Yvon?

Mr. Yvon Charbonneau: This is a straightforward question for Nick. When you opened your remarks, you said, “As usual, they haven't listened to us yet. We hope the committee will.” What hit me the most was the expression “as usual”.

Mr. Nick Summers: Oh yes.

Mr. Yvon Charbonneau: Could you be more explicit with respect to your experience of being consulted by Citizenship and Immigration Canada?

Mr. Nick Summers: Sure. As Janet alluded to earlier, we do consult with CIC quite regularly. The CCR is invited to many consultations. I've personally been at quite a number. We met with regard to the new Immigration and Refugee Protection Act and with regard to its regulations. We met with regard to the safe third country agreement and with regard to its regulations.

As I mentioned before, the problem is this horse and cart analogy. It's already there, ready to go; we're just being consulted about whether it's going to go as far as the corner or whether it's going to turn the corner. Many times we seem to be left to clean up after the horse. We get listened to, and occasionally we make a difference. We'd like to think so anyway.

I recall when IRPA was first brought in we were meeting with regard to the regulations before implementation. CCR and other organizations spent four days going over the regulations in quite a good bit of detail with them. At the end of that some changes were made. We were able to point out to them some things that simply didn't make sense. But by and large, we weren't able to make much of a dent in--how should I put it--the major or principal issues. Once the department has decided, “This is the way we're going”, it's almost impossible to get them to change their mind.

The Vice-Chair (Mr. Jerry Pickard): Thank you, Nick.

Are you okay with that, Yvon?

Mr. Yvon Charbonneau: Yes, thank you.

The Vice-Chair (Mr. Jerry Pickard): We'll go to Inky.

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

It's almost ironic in this country that we are so slow to learn from our history. When you look at the numbers on the refugee side, they are very small compared to even the annual migration. Yet the biggest numbers who come to this country are visitors from non-North American visits. I think something like 4.4 million people cross our borders to visit us.

I think the challenge ahead for us, as people who respect the whole idea of liberty, is that your story is never told. As you know, the press always pick up on the negative examples. People literally don't even know how many refugees actually come to this country; yet they'll always remember the negative examples that are written in the press almost daily. When you look at the press clippings over the last month, almost daily there are stories about negative incidents. So maybe you need to tell the story in terms of the big numbers—how few these individuals really are who are so-called risks to this country.

» (1755)

Ms. Janet Dench: The Canadian Council for Refugees shares your concern about how refugees are portrayed in the media. We have been trying, in our small way, to redress the balance, or to change things. We have redoubled our efforts because in the aftermath of September 11 we have seen very unfortunate and unfair linkages made between refugees and terrorism, which has been very harmful for how refugees are viewed—and in the end for refugee policy. We see how the government policy tends to reflect the popular mood.

So we actually have been meeting with other organizations, including government, to try to see how we can work together to get out—as you say—the real story, because we believe most Canadians want to protect refugees. Again and again we have seen that when individual refugees become known to Canadians, and when a particular case of a family facing deportation, for example, hits the headlines, then people respond in a very compassionate way. So we're going to be working on this. We also encourage all members of Parliament to try to get the real picture out in their own way.

The Vice-Chair (Mr. Jerry Pickard): Thank you.

To all of the committee members and witnesses, I want to say thank you very much for being concise and direct and allowing everyone to share their information. I think we've covered the topic very thoroughly. We were able to do that because you, the witnesses, were concise and straight to the point. We hear your frustration. We saw that. We know you have very serious concerns about some of the issues. These are recorded very clearly.

Committee members, thank you very much for going along with me and keeping your questions short and direct. That gave everybody an opportunity to ask several questions, which is appreciated as well. Thank you very much.

Now I have a reminder for all committee people. Tomorrow, Wednesday, November 20, from 3:30 to 6 in room 269 of the West Block, you will be hearing witnesses from the American Immigration Lawyers Association, the Canadian Auto Workers Union, the Canadian Bar Association, and the Southern Ontario Sanctuary Coalition. So there will be four witnesses tomorrow. I believe Chairman Joe will be back at that time.

Thank you very much for your cooperation. We are adjourned.