CITI Committee Meeting

STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION

COMITÉ PERMANENT DE LA CITOYENNETÉ ET DE L'IMMIGRATION

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, March 25, 1998

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[English]

The Chairman (Mr. Stan Dromisky (Thunder Bay—Atikokan, Lib.)): I call the meeting to order. Pursuant to Standing Order 108(2), we are considering recommendation 155 of the report of the Legislative Review Advisory Group, entitled “Not Just Numbers: A Canadian Framework for Future Immigration”, particularly issues relating to removal and detention.

I am very appreciative, and so are the rest of the members of the committee, that the witnesses stayed and were very tolerant and persevered while we were voting in the House of Commons. We do have enough members here to continue with the session this afternoon.

I'm very pleased to introduce, from B'nai Brith Canada, David Matas, who is senior honorary counsel. I'm going to turn the floor over to him.

We will have an open forum session. In other words, whenever a topic is raised by any member, if anyone else in the committee feels they would like to ask a supplement or get further information pertaining to that issue, whatever it might be, you will have the opportunity to ask questions.

Mr. Matas, thank you very much for coming.

Mr. Rubin Friedman (Director, Government Relations, B'nai Brith Canada): Let me introduce myself. I'm Rubin Friedman, the director of government relations for B'nai Brith Canada. I've come along with Mr. Matas to help do the presentation for our organization.

As you know, B'nai Brith Canada is a national Jewish organization, the oldest one in Canada. It's about 150 years old worldwide. We work in a number of areas, including human rights, both internationally and domestically, and we have a long record in dealing with issues such as war criminals. We're part of the national group of NGOs working with the World Federalists to promote the creation of a world court to deal with issues such as international war criminals.

David Matas has been our honorary senior legal counsel for a few years now. He's also the one who represented us at the Deschênes Commission, and he has an intimate knowledge of both the issue of war criminals and immigration law, as he is frequently called upon as a consultant in this area.

I'd like to pass the mike over to David to do a presentation of some very particular suggestions we have with regard to immigration and citizenship of war criminals in Canada.

Mr. David Matas (Senior Honorary Counsel, B'nai Brith Canada): Thank you.

First of all, I was told there was only half an hour for this whole presentation and my own introductory remarks should be only five minutes, so I will be very brief.

My understanding is that the focus of this committee is contemporary criminals as opposed to Nazi war criminals, but of course the issues are much the same. There are some specific issues that relate just to Nazi war criminals, but many of them are the same issues, and from our experience in dealing with Nazi war criminals, we see some of the problems that we're going to have to face when we deal with modern war criminals.

One of the differences between the two is the disincentive effect of denaturalization and deportation. Denaturalization, taking away citizenship, and deportation are effective disincentives, or effective remedies, for Nazi war criminals, because they've been here for so long. But for the modern war criminals, the only really effective deterrent is the criminal law.

We do not have an effective criminal law. Because of the Finta case and the Supreme Court of Canada, there are going to have to be amendments to the Criminal Code to make it work. But unless and until that happens, modern-day war criminals can come here and the worst they face is just the requirement to move on, which is not that effective a deterrent. So one thing we would recommend for the modern war criminals is getting the criminal law in order and using it.

Another recommendation I would make is the need to get things moving at a proper pace. Of course, with the Nazi war criminals, it took 50 years just to get started. But even beyond that there's the pace at which things go once they're started, and indeed once they're finished. One of the frustrations we face is that people whose cases have been lost remain in the country for quite some time.

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After Ladislaus Csizsik-Csatary lost his case in July 1997 he remained in the country until October 1997. He left voluntarily. The government still hadn't gotten around to removing him.

There are two other criminals, Wasily Bogutin and Roland Maciukas, who've also lost their cases and are also still here. There are nothing but technicalities stopping their removal, but the government hasn't gotten around to them.

The law itself has some problems with it. Right now, for loss of citizenship, you lose citizenship for fraud or misrepresentation or concealing material circumstances. But you can't lose citizenship for being a war criminal or a criminal against humanity, and that's a problem.

There's the sequentialization of procedures. If you get convicted of a war crime, that's one procedure. If you lose your citizenship for fraud because you concealed war criminality, that's a second procedure. Then, to get deported, that's a third procedure. Of course, each churns up time. There needs to be a consolidation of procedures so that there would be one step or at most two steps instead of three, each with their procedural delays.

We also need to be more discriminating. After all, war criminality is a serious allegation, and we shouldn't find people to be war criminals simply because they joined the wrong group. We do have some guilt by association provisions in the Immigration Act, and those need looking at.

We also have to make sure that there has to be some form of due process, not too much, not several stages, but at least some. We now have a provision in the act that excludes people from procedures based on officials' determination, basically a civil service, bureaucratic interview-type determination, not a trial of war criminality. That's just not sufficient. Eligibility should not stop someone from having their case examined on its merits.

We also have to look at risk review. According to international law, even a war criminal, even a criminal against humanity, should not be removed to torture or arbitrary execution, but our law really has no way of dealing with those international obligations. So it needs to do that.

That's my five minutes, more or less, but in summary I'd like to say that in some ways the law offers too much due process, and in other ways it offers too little. In some ways it catches too many people in its sweep, and in other ways it catches too few.

Our commitment, what we think the law needs, is an appropriate pace that's fast enough, that gets these people out without undue delay, that doesn't offer immunity to anyone, and that gets at people who really are guilty of these crimes.

That's what I'll say, by way of introduction.

The Chairman: Thank you very much. What we'll do is have an open forum here, and whoever has a question to ask— Let's start with Mr. Saada.

Mr. Jacques Saada (Brossard—La Prairie, Lib.): I have a very quick question, but it might be a question of principle here. You mentioned— and correct me if I'm wrong —that war criminals cannot lose their citizenship. Is that right?

Mr. David Matas: They cannot lose their citizenship on the grounds that they're war criminals.

Mr. Jacques Saada: I understand.

Mr. David Matas: They can lose it on other grounds.

Mr. Jacques Saada: I understand, but on these grounds, wouldn't there be a discrepancy, therefore, between what you're requesting or what you are referring to and the statements that a number of other panellists around this table have made on numerous occasions, to have the same legal process apply to asylum seekers, for instance, as would apply to anybody who is already in the country?

In other words, they want to have parity between the treatment accorded asylum seekers and the treatment accorded Canadian citizens as a whole. You are saying there should be a difference between those who are war criminals and those who are not. Do you see my point?

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Ms. Maria Minna (Beaches—East York, Lib.): No.

Mr. Jacques Saada: Okay. Let me rephrase that. I'm sorry.

Ms. Maria Minna: You can start in French if you like.

Mr. Jacques Saada: Well, in English and French.

[Translation]

War criminals cannot lose their citizenship because of the fact that they are war criminals. You are sorry that that is the case, aren't you?

Mr. David Matas: Yes.

Mr. Jacques Saada: You would in fact like it if their citizenship could be withdrawn. Withdrawing citizenship therefore means treating war criminals in Canada differently from any other Canadian citizen.

Mr. David Matas: Yes.

Mr. Jacques Saada: A few days ago representations were made to us asking that the same legal process be applied to them as to any other Canadian citizen. The people concerned told us that that is what they want.

Mr. David Matas: Yes.

Mr. Jacques Saada: Is there not a philosophical difference here: on the one hand a distinction is made, whereas on the other it is not?

Mr. David Matas: No.

Mr. Jacques Saada: Is my question clearer?

Mr. David Matas: Yes, it's clearer.

[English]

I think you have to distinguish between substance and procedure. Procedurally, we would like standards that meet due process requirements, that meet Canadian due process requirements. We don't say anything differently. But obviously when it comes to the substantive grounds of the law, it's going to have to be different for people who are refugees and people who were born in Canada. The law about refugees doesn't really apply to people who were born in Canada. It applies to people who were born somewhere else and have nationality somewhere else.

There isn't any real difference, I would say, between the refugee advocacy community, of which I'm part as well, and the community that advocates the bringing to justice of war criminals, because refugees themselves suffer from the presence in Canada of their perpetrators. If the refugees are to be given a proper welcome and to be properly integrated and to properly respect Canadian justice and Canadian society, we have to bring to justice their perpetrators.

Mr. Jacques Saada: Fair enough. My question was more theoretical, because I do subscribe to your position in the first place.

The Chairman: Is there anyone from the opposition side? No.

Ms. Minna.

Ms. Maria Minna: Welcome again. I've seen both of you a few times in the last little while.

I wanted to get back to you, Mr. Matas. I took on a couple of things you mentioned, which I've also dealt with in the last couple of years. That is guilt by association. As you know, we have a couple of cases and things keep coming back. Can we explore a little how we should deal with it and at what point we go too far?

Mr. David Matas: It comes up in a number of different ways. Right now, in the Immigration Act, you can be removable if you're a senior member of a violating government, a government that violates human rights in a flagrant way. The legislative review advisory committee recommended something like that. They recommended that you could have your citizenship removed if you were a member of an organization involved in war crimes or crimes against humanity.

I would say that you have to look to the organization. Is criminality its only purpose? If you look at the Nuremberg tribunal, they went through all the organizations and classified some as solely criminal in their purpose. If you were involved in those, then you were a war criminal. But there are others that were multifaceted. In that case you actually had to determine what the person did as opposed to whether or not they just belonged to the group.

Most of the groups we're dealing with that have been involved with war crimes and crimes against humanity are multifaceted. Certainly, this is true of governments, because governments do a wide variety of things.

What we're trying to get at, after all, is individual culpability. In some organizations it's so obvious that all they're doing is crime that everybody involved is culpable. But those organizations are relatively few and far between. The current law and also the recommendations of the legislative review are just too broad in their sweep.

Ms. Maria Minna: You would recommend, then, in order to make that part of it not easier but more manageable, if you like, restrict its application with respect to association and to define “association” in a more restrictive way in terms of having evidence of what the individual did or did not do with that specific organization and the organization's raison d'etre itself.

• 1650

Mr. David Matas: Sure.

Ms. Maria Minna: Let me give you an example, one I dealt with recently. That's the LTTE in Sri Lanka. We're taking refugees from the Jaffna area; from northern Sri Lanka. At the same time we're seeing the organization itself is now considered to be an organization such that if you are associated with it, you are not a bona fide refugee, if you know what I'm saying. We have both things happening. Is that kind of thing what you're talking about?

Mr. David Matas: Yes. I'm familiar with Sri Lanka and the LTTE. In my own view it would be totally inappropriate to brand every member of the LTTE a war criminal and a criminal against humanity.

I think what we have is competing— We have two different risks, at different ends of the spectrum. On the one hand is doing too little too late; giving immunity, which we want to avoid. The other danger, at the other end of the spectrum, is the whole trivialization of the notion of war criminal, the wholesale suspicion of people without real evidence that they are war criminals. Both of those extremes have to be avoided. Particularly since we've been at one extreme for so long, paying so little attention to war criminals, I think we have to avoid the risk of jumping over to the other extreme and branding all sorts of people as war criminals who really aren't.

Ms. Maria Minna: Is that what you meant when you said that in some ways we catch too few people and in some ways we catch too many? Is that what you were referring to?

Mr. David Matas: Yes, that's what I mean. Certainly my experience with the Nazi war criminals is that we've caught far too few. We've just let them sit here for decades and done nothing about them. But the other way in which we catch too many is— That's what I was trying to get at: the membership type of thing.

Ms. Maria Minna: My next question is really to the chair, on a point of clarification. On the program we have Mr. Matas as under B'nai Brith, but then also as an individual. Does that mean at some point we are going to discuss refugees in general, which I know Mr. Matas has a great deal of knowledge about?

The Chairman: That's right.

Ms. Maria Minna: Okay. Then I'll reserve the rest of my questions for later on.

The Chairman: We're following the schedule.

[Translation]

Ms. Folco.

Ms. Raymonde Folco (Laval-Ouest, Lib.): Mr. Matas, before this meeting began I had the opportunity to speak with you and you told me that you were going to make certain recommendations in your brief. We may not have time now to go through all those recommendations, but there may perhaps be one or two which could be described as fundamental to the others. Could you take a few minutes to explain them to us?

[English]

Mr. David Matas: Sure. About war criminals, we did a brief for B'nai Brith that was a response to the legislative review advisory group, and some of them are responses to their recommendations. But certainly one of the fundamental ones is consolidation, so when you take away citizenship you make the person removable at the same time and it doesn't have to go through a second proceeding. Second was the one I was asked about before by Mr. Saada, that you could lose citizenship for being a war criminal or a criminal against humanity, and not just, as now, for fraud or for misrepresentation.

Right now there's a cut-off date for war criminality. You have to come after a certain date. For citizenship it doesn't matter when you came, but for immigration it matters when you came. If you came before a certain date, you can't be removed for war criminality, only for fraud. That cut-off date should be removed.

The legislative review recommends a form of immunity after three years. We're obviously opposed to that; any form of immunity.

They also recommend that a war criminal should be allowed to stay no matter what their crimes, provided they have made a significant contribution to Canada or have significant family responsibilities. We reject that. Once they are war criminals or criminals against humanity they shouldn't be allowed to say, well, we've behaved well since we've been here and we've paid taxes, therefore we should be allowed to stay.

Those are just a few. There are more in our brief, but I don't want to give you all of them.

Ms. Raymonde Folco: I wanted to get the most important ones. Thank you.

[Translation]

The Chairman: Ms. Girard-Bujold.

Ms. Jocelyne Girard-Bujold (Jonquière, BQ): Good afternoon. You pointed out earlier in your opening statement that procedures have been consolidated into two stages rather than three. What effect will that have on the process? What will be changed for the better?

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You also stated that nazi war criminals should be subject to criminal law. Could you please explain that point a little further?

[English]

Mr. David Matas: To a certain extent, they're related, those two suggestions. Right now the Criminal Code allows for prosecution of war criminals, but it doesn't happen. It doesn't happen because of the case of Finta in the Supreme Court of Canada, which— without going through that case here —set up a number of technical obstacles that can only be overcome by legislative amendment, which the government has promised but has never produced. The case is almost four years old now, so we really need to get the criminal law amended.

What I'm thinking of, though, is three steps. If there's a conviction, that's one step. If there's a taking away of citizenship, that's a second step. If there's a deportation order, that's a third step. We're proposing that there be only one step, so that if there's a conviction, that could also lead to, at the same time, the judge ordering taking away of citizenship plus the removal. If it's just a matter of the judge taking away citizenship, as it is now, because we don't do convictions now, then that judge who takes away citizenship should also be able to order the removal from Canada.

[Translation]

Ms. Jocelyne Girard-Bujold: The process would be improved because otherwise there is a first step, that is conviction by the judge, and then you have to be begin another process to take away citizenship, followed by a further process for deportation. Therefore, there are three steps. As you indicated at the beginning of your presentation, that is why it is possible for a criminal to stay here for some time after the deportation order.

[English]

Mr. David Matas: Yes, and what's more, these second and third steps are just perfunctory. There's nothing actually substantive happening. It's just a formality. All that happens at the second step is that they look at what happened in the first step and say, “Okay, you're out; so why bother?”

[Translation]

Ms. Jocelyne Girard-Bujold: After conviction, there are still two steps. How much time is there between conviction and the second step, and then until the third step?

[English]

Mr. David Matas: It's hard to say. As I said in my original presentation, with Csizsik-Csatary, he lost his citizenship in July 1997. In October 1997 he left on his own, and the process still hadn't gotten around to ordering him removed.

There are two others right now, Wasily Bogutin and Roland Maciukas, who also, one in January and one in February, lost their citizenship. They're still here, and the end is not in sight.

Mr. Rubin Friedman: I can give a few more examples. There are some cases from the United States.

For instance, Konrads Kalejs was suspected of crimes against humanity but after the war moved to Australia and obtained Australian citizenship. He moved to the United States. They tried to arrest him. He left, then he came back. Finally he was arrested. Then he appealed, etc.

This was a man with a certain amount of wealth. It took 10 years— 10 years —before the deportation order in the United States was actually executed. Then he came to Canada as a visitor. We had to deal with him for, I think, 2 years. In all, it's taken about 12 years.

In the case of some individuals in Canada convicted of crimes against humanity, they were in Canada for 15 years before they were finally removed.

So we don't know exactly how long it takes, but we know it can take a very long time.

Ms. Jocelyne Girard-Bujold: Thank you. Merci.

The Chairman: Ms. Hardy, please.

Ms. Louise Hardy (Yukon, NDP): Thank you.

Last week we heard from officials from the department that when it comes to war criminals, they have a category where if there was anyone coming in as a refugee of a certain age or from a certain country that would have served in an oppressive regime, they're immediately suspected of being a war criminal. I asked if there was a similar category for anyone who had a business and supplied arms or gas or poison or whatever and who benefited from that oppression. They said there was no category that would match the military one.

Do you think there should be?

Mr. David Matas: I'm suspicious of suspicion, of group categories, of profiles. To my mind, the enforcement division focuses too much on it. They function too much by way of skepticism.

To my mind, what we need is evidence. If there's evidence that somebody's a war criminal, we should deal with them. But we shouldn't— and this gets back to my earlier concern —automatically pigeonhole someone as a war criminal simply because he fits into this general category of whatever.

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Defining categories is an endless and invidious task and it becomes a very political game. It's a matter of what sort of categories you like and don't like, whereas the notion of criminality is quite clear. It's what you've done as opposed to what category you're in.

Ms. Louise Hardy: So you would leave out any categories for any side.

Mr. David Matas: Yes. This gets back to the whole equality provision. It ends up being discriminatory if you start suspecting people because of categories to which they belong.

Ms. Louise Hardy: With respect to the idea of skepticism, do you think we should have detention centres, and if so, how should they be used?

Mr. David Matas: I wonder if I could answer that in the second round because I am going to do a second round where I'm dealing with detention removal more generally— if that's all right.

Ms. Louise Hardy: Yes.

The Chairman: Very good.

[Translation]

Ms. Girard-Bujold.

Ms. Jocelyne Girard-Bujold: I have another question. You talked earlier about a three-year period for immunity. You referred to something which happened, to a very specific example. Could you elaborate on what you were referring to? I don't understand the point very well.

[English]

Mr. David Matas: Yes. It's in this report, not just numbers— They made a recommendation that if somebody was a landed immigrant and had been recognized as a refugee, then there could be cessation procedures if he was a war criminal or if he obtained landed status by fraud— but only for three years, and after three years it was impossible.

So for that little group, the landed immigrants who got their landing as a result of being within the protected category, after three years they got an immunity even if they were war criminals, and we say no, that shouldn't happen. We disagree with that recommendation.

[Translation]

Ms. Jocelyne Girard-Bujold: So this time period should be withdrawn from the bill.

[English]

Mr. David Matas: It's not a draft bill, this legislative review, and it's not even a government proposal. It's just—

[Translation]

Ms. Jocelyne Girard-Bujold: —legislative review, yes.

[English]

Mr. David Matas: Yes. The government hasn't endorsed it and I'm hopeful it will not.

[Translation]

Ms. Jocelyne Girard-Bujold: I see. Thank you.

[English]

The Chairman: Mr. Saada.

Mr. Jacques Saada: Just for my own information, there are two things I want to ask about. Is there an official or formal internationally recognized definition of war criminal? Second, to pick up on what Ms. Hardy was saying, is there such a thing as a war criminal by association? Is it defined in law?

Mr. David Matas: Yes, there is an international definition of war criminal. In fact, there are a lot of them, and that might be part of the problem. It's in our Criminal Code. War crime is a defined term in our Criminal Code. It was defined in the Nuremberg tribunal. There is a draft statute for the International Criminal Court that will be settled this June in Rome in a diplomatic conference, and that will have a definition of war crimes.

But for the purposes of the Immigration Act, right now we use the definition of war crimes that's in the Criminal Code. As I say, the Finta case posed some problems, basically in terms of intent. My own view is that we need to amend the definition of war crime in the Criminal Code as a result of the Finta case, because it defined the term in such a way that nobody can be convicted any more. Basically what they said in terms of crimes against humanity is that it is not enough to intend the crime, to have the normal criminal intent; you also have to intend to be inhumane, which is impossible to prove. I think we need to look at that.

In terms of criminality by association, that gets back to what Ms. Minna was asking me about. Yes, there were some criminal organizations that Nuremberg identified as such, like the SS or the Einsatz group, and if you a were a member of those groups, you were a war criminal. The Einsatz group was a roving killing unit used for killing Jews. That's all they did. They had no other function. If you were a member of the Einsatz group, you were a war criminal. There was no need to go any further than that.

So there are some groups like that, but I wouldn't say that the LTTE is like that, and I think one has to be careful not to overuse that notion of association.

Mr. Jacques Saada: Thank you.

The Chairman: Did you want to say something, Mr. Friedman?

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Mr. Rubin Friedman: I think David went on and provided further information.

I'll just try to remind you that the drunkenness defence in cases of rape focused on some of the same issues, which is the nature of intent and whether somebody has a guilty mind. It is an issue in our criminal law that applies to more than just the war criminals, and the government acted very quickly to change the law in the other case to make sure that defence was no longer available.

We're hoping they'll do something similar to ensure you can't defend yourself by claiming you really believed the Jews were a threat; you weren't trying to be inhumane, you were just trying to protect your country. That somehow becomes a defence for helping to deport Jews to their death. We think that's not appropriate for Canadian law.

The Chairman: Are there any other questions from any member of the committee?

I would like to ask one. Based on the principle that anyone creating some form of behaviour that is going to hurt another individual in essence is really committing a crime against another human being— looking at it from that viewpoint —and the fact that for people coming to Canada, as soon as they touch Canadian soil, we more or less guarantee them the same kinds of rights, freedoms, and privileges that all Canadians have, what would you think of— As soon as we have enough evidence to prove that someone is a so-called modern war criminal, he should be treated just like any other one in Canada. Because we're giving him all the rights, as any other Canadian, he should be treated in the very same process, in the very same manner, as anyone else in Canada who commits a crime against another human being— in other words, hurts another human being, or destroys another human being. Without any kind of complications in that whole process, to simplify it, just have it as comparable and as clean-cut and as similar to handling any other Canadian who commits a crime against another human being.

Mr. David Matas: I think you have to make a distinction between the crimes at international law or the crimes against humanity, the most grotesque crimes from the ordinary, everyday crimes, because there is a legal distinction between the two concepts. The idea behind the distinction is that for crimes against humanity, the whole global community is victimized in a way and it's not just the local community that's victimized. It's not just the victim who suffers; we all suffer as humanity from the loss that has occurred, and therefore we have a power, a responsibility, and a duty to do something about it.

In terms of the procedures, it makes sense to have a similarity of procedures. Of course, it's conceivable that Canadians could also commit war crimes and crimes against humanity, and Canadians wouldn't be subject to deportation or loss of citizenship, but they would be subject to a criminal process, which presumably would be the same as the process a foreigner who arrives on our soil and commits a crime against humanity would be subject to.

Fundamental human rights are not just— They're in the Canadian law and they're in the Charter of Rights and Freedoms, but they're not just Canadian standards and they're not just for Canadians. They're global standards and they're meant for everybody, simply because everybody is a human being.

So we should not be misled by the fact that they find a reflection in Canadian law and think of them as only as Canadian standards for Canadians.

The Chairman: Very good. Thank you.

Since there are no further questions, we'll now change course. David Matas is going to continue now as sole representative of —he's a refugee lawyer.

Mr. David Matas: Thank you. I have no one to introduce me.

The Chairman: You're switching hats.

Mr. David Matas: I am in private practice. I do refugee law. I don't do war criminals. In fact, I've never had a war criminal walk through my doors.

I did provide a brief to this committee. For the most part, it has also been translated as well, so let me just run very briefly through the recommendations. A lot of this brief basically deals with individual cases that I've seen in my practice through the years, along with some of the problems that have been posed in this removal and detention area.

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The first part of the brief basically just talks about the problems that infect the department and removals because of the cynicism that exists. I then go on to some very specific issues. One of them is the denial of access to counsel at the ports of entry. Another is the cursory manner in which ineligibility determinations— ineligibility to make a refugee claim —are made at ports of entry. Obviously, they're related to the fact that counsel isn't there, which makes it easier for these cursory determinations to be made. The problem here is exclusion rather than removal, but it's a similar problem. My own recommendation to the committee is that it should be looking at exclusion as well as removal, because they basically have the same effect.

I then talk about the whole issue of marriages. Because of the cynicism that enforcement officers bring to the task, there is difficulty getting real marriages recognized even though there's a policy to recognize real marriages.

There's the issue of family separation. When people are removed, they often remove one part of the family, and then another part of the family. Sometimes this happens years apart, and I suggest that this is inappropriate. They should be removed together if they're being removed.

There's the problem of marriage breakdown and the shipping out of the foreign spouse, normally a woman, once the marriage has broken down. Often, there is a situation of abuse, one in which the wife is unable to pursue remedies for abuse— maintenance, alimony, criminal charges —because she's shipped out. There's also a criterion of successful establishment, which particularly works against women with young children.

There's the problem of restraints in the immigration process. People who are in detention are typically put in handcuffs, chains, and irons, even though it's against the standard minimum rules for the treatment of prisoners in the United Nations. The Department of Foreign Affairs has taken a position that they try to achieve those standards, the Department of the Solicitor General has said that it's up to the Immigration and Refugee Board, while the Immigration and Refugee Board says there's nothing they can do about it. Somebody should take responsibility for this.

There's the whole issue of moratoria on removals. There are some countries to which Canada does not remove, but the list is not very heavily publicized. Sometimes people have difficulty getting work permits. The moratorium policy allows for lifting the moratorium in individual cases, but there's no due process followed in the lifting of suspension. The persons concerned aren't notified with an opportunity to make representations. Even when we have moratoria, we will remove to intermediate countries, which in turn will remove to the country we will not remove to. It's kind of a hollow policy, and it's not carried through very consistently.

There's the problem of removal to danger, which I talked about in my earlier submission. There's no system in place to really look at anything but the refugee convention. There are a whole bunch of removal standards out there— the torture convention, the extrajudicial execution, the Geneva Convention on the Protection of Civilians in Wartime, disappearances, customary norms for international refugees —but there is really no process for dealing with them. Our immigration manual says that if you have someone who is found to be a refugee and you're removing them back to the country of danger, you should consult with the United Nations High Commissioner for Refugees, but that doesn't happen.

There's the problem of lightning removals. It can take a long while to get a removal order and to get around to executing the removal order, but once a decision is made on execution, people are whisked away without notice. They are not given an opportunity to pack their bags, or to see their family or friends before removal. They're enticed into local offices under false pretences and are removed without prior notice. They have great difficulty accessing the courts to stay the removals. Again, I give a number of examples of this.

There's the whole issue of detention for removals. There are far too many unnecessary detentions of people who are meeting all requirements. There's no reason to believe they'd flee— and again I give some examples.

There's the problem of breeches of confidentiality. People are very often returned to countries in cases in which the returnee countries know they are failed refugee claimants. I give a couple of cases from my practice. I had two people who returned, and the returnee government knew they were failed refugee claimants in Canada. They were immediately detained and in one case beaten and in another case severely tortured. They both managed to get out, come back to Canada, make a second claim, and in both cases they were recognized the second time, even though they failed the first time, because of the manner in which they were returned by Canada and the danger Canada put them into.

• 1715

Finally, I suggest we need some sort of civilian oversight, because here we have a police enforcement system that has no civilian oversight and does a lot of things wrong. A couple of my own clients were victims of forgery by an enforcement officer in Winnipeg who forged removal documents so they could be removed. There are a lot of other things that aren't as off-colour as that but that still, from any outsider's point of view, would raise a lot of eyebrows. We need more of an outsider's point of view in this whole enforcement process.

That's what I'll say by way of introduction.

The Chairman: Very good. There's certainly a lot of information in this report and I'm sure the members will get a great deal from it. It will be quite an asset in our deliberations and in reaching some form of conclusion.

I would like to start the questioning myself this time by a statement I picked up in here. I'm doing it for two purposes: simply for clarification and also to get it in the record.

Here you state the department is functioning as a pimp to Canadian males. Could you clarify that, please?

Mr. David Matas: Well, I say that because of the marriage breakdown. What happens— and I give a couple of cases —is a woman comes in, she gets married, the man sponsors her, and there's a process of landing. The man will pay $1,475, the right of landing fee and the application fee. The man then tires of the woman and kicks her out. The department will send her away. That's the sequence. So the man pays some money to the Government of Canada, and when the man gets tired of the woman, the Government of Canada sends the woman away. That's the basis for that remark.

The Chairman: Is the woman in question married to the person who's sponsoring?

Mr. David Matas: Yes.

The Chairman: And she still could be thrown out?

Mr. David Matas: Yes.

The Chairman: Hmmm.

Madame Folco.

[Translation]

Ms. Raymonde Folco: Yes, I do in fact remember discussing with the Quebec Department of Immigration this issue of sponsoring and women's rights— because it was often women who were sponsored who were victims of conjugal violence and when deciding to leave home were told by their husbands: "If you leave me, I will withdraw my sponsorship and you will be deported back to your country of origin."

I thought that steps had been taken, at least by the Quebec government, to protect those women and stop them being automatically removed when their husband withdrew sponsorship. Am I mistaken? Perhaps such steps have not been taken by the Quebec government. I don't really understand the balance here.

[English]

Mr. David Matas: First of all, you have to distinguish between landed immigrants and people who are not here as landed immigrants. Once you're sponsored and you come here as a landed immigrant, you're not removable if the sponsorship is removed. But if you come here as a visitor and you get married while you're a visitor and then your husband sponsors you for landing from within Canada, you remain as a visitor until the landing is complete. If the marriage breaks down during that period, the person becomes removable.

The department has a policy in the manual saying that even in such a situation, they may allow the wife to stay on humanitarian grounds, but the reality is— and this is where you get into the problem of the enforcement subculture mentality —it doesn't happen in many cases when it should, because the department says this woman will not be able to support herself because she has a newborn infant, in some cases. By the very fact of the marriage and having a child, she's not all that able to support herself, and for that reason, they won't exercise the humanitarian discretion they have, and they send her out.

• 1720

In a lot of these areas I'm talking about, the problem is not so much with the policy, although the policy could be improved. The problem is that the policy is administered by people who see themselves as protecting Canada's borders. They see everybody in front of them as trying to trick and cheat their way into Canada. They're very hard, and in some cases much too hard.

The Chairman: You talked about the balance before, and you say “much too hard”. Do you feel that there are situations— maybe too many of them —where it's much too easy?

Mr. David Matas: Not in this area; not in marriage breakdowns.

The Chairman: So we're fairly consistent in the application of whatever guidelines there might be?

Mr. David Matas: No, I wouldn't say the enforcement system is too easy. We've had a problem of course historically, which is getting back to my submission on war criminals who came in 40 years ago. At that time it was kind of open season. But now, I don't think “too easy” is the problem.

The Chairman: Okay.

[Translation]

Ms. Girard-Bujold.

Ms. Jocelyne Girard-Bujold: I will continue along the same lines as you, Mr. Chairman. I was very struck by what you said in your presentation about foreign spouses whom Canadians sponsor but then discard when they no longer want them, thus breaking up the marriage.

You said that the department was functioning as a pimp. In my mind, a pimp means many things. Are you suggesting that in this regard the department is the pimp of the foreign spouse? As a pimp, the department is obliged to send the person back to where she came from, because the marriage bond has been broken. I would be grateful if you could explain that to me.

[English]

Mr. David Matas: Well, they don't have to do it. They have the discretion. They have the power to do it. My concern is that they don't use that power appropriately. They use that power in too many cases to send women away when they should not be sent away. And they have the power to do the opposite. They have the power to let them stay.

This whole brief, although it focuses on a number of problems, has a thematic whole, and that is, we have with the enforcement system an enforcement subculture that functions in a way that to outsiders— I mean, to me —seems shocking. I try to convey some of the problems of the things that go wrong, the most egregious problems.

There are ways to deal with it. We had the Tassé task force, we had a Peat Marwick task force, we've had the auditor general, and their recommendations are all great. I like them all, but they haven't been implemented. We need the Tassé report recommendations implemented; we need Peat Marwick's recommendations implemented. We need some form of civilian oversight. We need some form of complaints mechanism. We can't leave these enforcement functions— we can't leave police work just to the police, basically.

The Chairman: Mr. Mahoney.

Mr. Steve Mahoney (Mississauga West, Lib.): Thank you very much.

In reading through the document, it's interesting— the language is fairly inflammatory, but maybe there's good need or a reason for it.

One of the things we've been trying to do in this committee is to try to dig into how the system works or doesn't work, perhaps, in certain areas.

I'd like you to expand upon the statement, because it's quite a strong statement, under “Leadership”, where you claim that the union claims —and it seems to me by the first paragraph under “Leadership” that you agree with that claim. I haven't directly heard it from the union, but you're claiming, as I read this, that they take the position that there's a problem in leadership in the department.

We've had the department before us. We've had charts and flow charts and all kinds of explanations about how the system works, where the problems are, and the fact that it takes a minimum of 17 months, I guess, to process a refugee claim through the appeal process. We've heard that the only people who seem to like the appeals process are the lawyers. That point was made at one of the meetings I attended.

Mr. David Matas: I don't like it.

Mr. Steve Mahoney: You don't like it? Well, I'm glad to hear that.

• 1725

I guess I'd like you to expand on and/or justify the statement that there is a problem in leadership in the department. I'm not saying there isn't; I'm not saying there is. I'd like you to expand on that, perhaps substantiate that. I'd like your views as well on the appeal system, the number of opportunities that exist for appeals, the length of time it takes to adjudicate and make those decisions.

Mr. David Matas: First of all, I suppose because it's an individual brief rather than an organizational brief, my language may be a little more inflammatory than it would otherwise have been. Also, I've represented a number of clients who have been very badly treated. I have had clients who have been victims of forgery by the department. I have had cases of women who have been sent away without due cause. I've had people who have succeeded as refugee claimants the second time because of the manner in which they were removed the first time. So I've personally seen a lot of problems in my practice.

When I see these problems and I bring them to the attention of the department, I don't see much in the way of a reaction. Partly, my statement about leadership is a result of the way I see them reacting to things that go wrong. They just don't seem to react appropriately, seriously enough and quickly enough.

It also has to do with the way the department is structured. If you look at the act, the act serves two purposes. It is to allow some people in and to keep other people out. So the department is— what I say in the brief is —bicephalous. But the individual people, they only perform one function. There's an admission side and there's an enforcement side. Some people do just admissions and other people do just enforcements. The enforcement people develop a group ethic and they tend to support each other, they tend to agree with what they're doing, they attend to trade practices. When one of them does something wrong, the others are not horrified. They tend to be too forgiving. It's this kind of group ethic problem, in much more diplomatic language than I was able to use, I believe, that Roger Tassé was trying to get at in his report.

In terms of the problem of appeals, I think we need appeals. I don't like appeals but I think appeals are necessary for error correction. The problem with the system is not that it has appeals, it just has too many non-functional steps that chew up time and resources and don't really accomplish anything. We have an eligibility provision that almost everybody passes and everybody has to go through. What are we accomplishing by that? We have this post-determination review that almost everybody fails. What are we accomplishing by that? We have judicial review, which is important, but it's technically so limited that it doesn't get at a lot of the major problems.

To a certain extent, this is what the legislative review is trying to get at. We've got a very complicated system that churns up a lot of time and resources but doesn't achieve basic results in terms of due process and in terms of proper appeals.

The Chairman: Thank you very much.

[Translation]

Ms. Girard-Bujold.

Ms. Jocelyne Girard-Bujold: You have given me quite a shock, Mr. Matas. You said that in order to send back to their country of origin foreign women sponsored by Canadians, who had come to settle here and were no longer bound by marriage ties to their sponsor, officials allegedly issued forged documents.

[English]

Mr. David Matas: No, those are two separate problems. In the cases I've seen, the forgeries have not been in marriage cases. Well, one of them was in a marriage case, but the foreign spouse was a man, not a woman. The other one, my other client, was a rejected refugee claimant. Those are the two forgery cases I saw. There have been others in the department that were not my clients.

[Translation]

Ms. Jocelyne Girard-Bujold: But could we get more information about that? Are there statistics on women who came to settle in Canada, who were sponsored by Canadians, who had their cases examined and were deported? I would be interested to learn about them.

[English]

The Chairman: We certainly could investigate and see if we can find something. That's an interesting point.

Mr. David Matas: The problem that this report deals with as well —they have some recommendations about it.

• 1730

[Translation]

Ms. Jocelyne Girard-Bujold: You also pointed out the importance of the Tassé and Peat Marwick reports and you indicated that they had not been sufficiently taken into account in order to move forward on the immigration issue. Could you explain in more detail what you mean by that? You said that they contained good recommendations, but that they had not been taken into account.

[English]

Mr. David Matas: It's KPMG Investigation and Security's Citizenship and Immigration Task Force Assessment Report, dated May 25, 1995. That's one. The Tassé report was released on February 22, 1996. It's entitled Removals, Processes and People in Transition. That's the other one.

They were both good reports, I thought, and I haven't seen results.

The Chairman: Thank you very much.

Madame Folco.

[Translation]

Ms. Raymonde Folco: I would just like to ask you a question about the Tassé report because you talked about the ethics of immigration officers and officials in the Department of Citizenship and Immigration. The recommendations in the Tassé report clearly stated that a review was needed of the whole ethic underlying the operations of the department, including the question of removals.

There should be a review of the whole ethic underlying the way the department operates and also the training provided to departmental officers regarding this new ethic. In fact, if I correctly understood the spirit of this part of the recommendations, there should be both a philosophical and practical review of the whole culture of the department with respect to removals. In your view, have there been changes since 1996, that is when the Tassé report was made public?

[English]

Mr. David Matas: If you look at the specific recommendations Tassé made, I haven't seen them implemented. If there's a code of ethics, I haven't seen it. As far as I know, it's just sort of in the works.

In terms of the actual people in the day-to-day events, some of the horror stories I have in here are new and some of them are old. I still see them. I still see problems that, as far as I'm concerned, emanate from an enforcement subculture mentality. It hasn't been broken. We need to take some drastic steps to break it, and they haven't been taken.

[Translation]

Ms. Raymond Folco: That is the impression I had also, Mr. Chairman, and that is why I asked the question. I wanted that to go on the record. Thank you.

[English]

The Chairman: Thank you.

Madame Minna.

Ms. Maria Minna: I just wanted to add to the information on the Tassé report with respect to ethics. There are ethics, but they're department-wide at this point. They're not specific to a department, but there are specific ethics procedures across the department.

I wanted to get down to asking some questions. I've read and I'm going to read more closely some of your submission, but I want to speak a little bit about detention, removals, and a few other things. I apologize; I haven't quite got through your paper yet.

Because we're dealing with some of the recommendations in the book as well, we need to explore those. I want to talk a little bit about the issue, for instance, of recommended probational status. What is your reaction to that recommendation? It's again part and parcel of what we're discussing.

Mr. David Matas: The provisional status?

Ms. Maria Minna: Yes.

Mr. David Matas: Well, the big concern I have about it— There is some value to it, because it gives people some status who otherwise wouldn't have status, and right now, people without status may have difficulty getting a driver's licence, getting health care, opening a bank account, or whatever. People need some form of identification, and provisional status helps them.

The big problem with provisional status is if you don't get it, you're in jail. It's an automatic trigger for mass-scale detention. That is perverse and it's going to lead to detention of all sorts of people who should not be detained.

• 1735

It makes sense to have provisional status, but it does not make sense to detain everybody who doesn't have it.

Ms. Maria Minna: From the way I read the report, everyone should have it. The only time it would be revoked is if a person is not cooperating— that's a whole other definition —and there would be detention, which takes me to my next question. On what condition would you say a person should be detained? What would be the reasons for detaining? The recommendations in the report are recommending much higher detention, I think.

Mr. David Matas: The type of not cooperating they suggest should lead to detention seems to me pretty perverse in some cases. They say you would detain a refugee who is not cooperating and helping to get a passport— and this is immediately on arrival —or who does not express a willingness to return— on arrival. This is inconsistent with the whole nature of a refugee claim. A person who wants to make a refugee claim doesn't want to return, so in order to stay out of detention they have to undercut their claim.

Indeed, I see now in my practice— The department has a preliminary detention power. They say, you help us get a passport for you or we will keep you in detention. Then they help get a passport, and then the department turns around and says, you're not a refugee, because you applied for a passport. This is the sort of impossible situation the report is getting refugee claimants into. It's not appropriate.

About what is appropriate, I think the act is more or less okay right now. For detention grounds it says likelihood of appearance, danger to the public. Those, to me, are the only criteria that make sense. All the other stuff about, are you helping us find out who you are— what is that but a suspicion that if we don't know who you are, you must be somebody terrible. It's detaining people on suspicion alone.

Ms. Maria Minna: We've had a lot of other presenters who have said likelihood of detention is someone thinks you're not going to appear. You haven't actually not appeared, so if I think you're likely not to appear, what do I base that on? It is not proven. It is an officer's or a person's assumption or conclusion, presumably from other behaviours; I don't know. There were some concerns from other presenters about giving that much room in determining detention.

Mr. David Matas: I think this gets back to a point Mr. Dromisky had raised, which is consistency between these procedures and other procedures. After all, these are not the only detention procedures. There are also the bail procedures for detention, and very often the same people are subject to both. In my view they should be consistent.

They are not consistent. It's a lot easier to get release from criminal detention, it's a lot easier to get criminal bail, than it is to get release from immigration detention. That should not be so.

That doesn't come from a difference in the law. If you look at the Immigration Act and you look at the Criminal Code, the standards are much the same. The difference is attitude. If you get into the more detailed criteria, some of the more detailed criteria are a lot looser.

I think what we have to do is use similar standards. We also have to use similarity of amounts. One of the principles of the Bail Reform Act was you don't put people in jail because they are poor. You don't set bail amounts so high that people can't pay them and therefore they just have to stay in jail.

That principle is totally absent from the Immigration Act. We have exorbitantly high bail amounts for immigration release and people do stay in immigration detention because they are poor. That should not be so.

The Chairman: Ms. Augustine.

Ms. Jean Augustine (Etobicoke—Lakeshore, Lib.): Thank you, Mr. Matas. It's good to see you again.

I'm grappling with a whole series of questions. First, I would like to ask you if in your practice you've seen differential treatment— treatment on the basis of race, of colour, of place of origin —whether the practices around genuine marriages are questioned more in certain circumstances; the issue of having to get blood tests to prove family relationships; the question around successful establishment— that you're able to establish yourself successfully in Canada —and the denial of access to counsel— all of those things that, it seems to me, can have some discretionary aspects to them. I'm wondering whether it's just a perception or whether you've seen any of that in your practice.

• 1740

My second question relates to my trying to make some clearer linkages— and I'll ask you if you can help me with this —between inadmissibility, detention, and removal from Canada and what we need to do in that specific area in terms of resources, training, and other links to make all of those processes effective.

Mr. David Matas: In response to your first question, in terms of the cases I've seen where there have been problems simply in terms of numbers, I would say it's disproportionately been people who were not white, people from countries from the third world.

I was part of a complaint, actually. A number of us made a complaint against the local office to the Canadian Human Rights Commission because we thought there was a pattern there. We had some meetings with the local office and the commission. The local office produced some statistics, and basically the statistics were not sufficient to come to any conclusions one way or the other.

There are some objective criteria, however, that obviously are going to have a discriminatory impact. If you look at the criterion for successful establishment, that's going to discriminate against women with young children. It's going to discriminate against people who come from poorer countries.

If you look at the criterion for having identity documents, that's going to discriminate against people from countries that have poor documentation systems. We have a very paper form of culture, where everything is on record, but other people come from countries that have a much more oral tradition. We discriminate against people who come from an oral tradition and value— overly, I would say —this paper tradition.

Discrimination these days is more subtle than it used to be a few decades ago, when people would have overt policies that on their face discriminated. Now what we see is discrimination by impact. My constant concern is that the department doesn't really pay that much attention to the discrimination by impact of the policies they have. I don't even see any analysis of that, and I think they should be doing it.

Your second question was your linkage between inadmissibility, detention, and removal. My concern, I guess, is that the linkage right now is too close. Too many people are being detained for removal and too many people are being detained as inadmissible when they need not be. It's a waste of resources. It's inhumane to them. Many of those people could be removed without the necessity of detention.

The Chairman: Thank you very much.

I have to terminate this session. Thank you for the briefs you've presented.

Mr. David Matas: Thank you very much for inviting us.

The Chairman: Now we are going to turn to our next witness, Mr. David Garon from the Shipping Federation of Canada.

David, the floor is yours.

Mr. David Garon (Manager, Marine Administration, Shipping Federation of Canada): Good afternoon, and thank you for taking the time to hear from us today.

Like Mr. Matas, I have a presentation to make of perhaps five minutes. It perhaps will raise some questions in your minds and we'll be able to get into a more detailed discussion.

I suspect also that the optic I represent is rather different from that of some of the people you've been hearing from up until now. It's more technical and rather more narrowly focused.

The Shipping Federation, which I represent, has 78 member companies, Canadian companies, that act as agents for about 90% of the ocean vessels trading to and from ports in eastern Canada. These vessels transport over 150 million tonnes of cargo annually between Canada and ports overseas.

• 1745

Since 1991, about 3,600 individuals have arrived in Canada as stowaways or deserters. These individuals claimed asylum in Canada.

As they move through the system, an increasing number are becoming subject to removal orders. Meanwhile, in the last year, the department has increased its rate of removal by about 90% for failed refugee claimants.

The costs for the removals are skyrocketing, in part because failed claimants are starting to violently resist removal. When two attempts to remove a person via commercial flights have failed, the department charters a private jet to fly the individuals to their destination. The escort costs for these kinds of activities reach about $16,000 per person, and the flight costs reach about $20,000 per failed claimant. These amounts are invoiced to our members.

Preliminary assessments for these individuals imposed upon us by the department at the arrival of the claimant have already cost our industry over $25 million since 1991. Given that there are an estimated 1,600 persons who may have to be removed at our expense over the next few years, the cost of the removals under the terms described will exceed an additional $40 million.

Most Canadian agency companies, which would be held liable by the department for these costs, would be considered small- or medium-sized enterprises. A 1995 survey revealed that there were about 4,000 employees in our industry overall, and 60% were in firms with fewer than 50 employees. The possibility of a marine agency company going out of business because of the catastrophic removal burden is very real.

The definition of a transportation company in the act makes no distinction as to industry sector. That's one of the problems. There are many types of transportation companies, ranging from British Airways, for example, to international highway carriers, the railways, and our members.

In each mode, there's a varying level of control that could be exercised by the Canadian company over security arrangements abroad. Compare, for example, the publicly funded security measures provided to airlines at all airports in the world to the privately funded site-security measures that ocean carriers can sometimes impose on port authorities or stevedoring contractors abroad. In the act, no distinction is made between large international air carriers, for example, and marine agencies in terms of liability exposure.

We don't ask that the transportation company ceases to be liable. We do ask that those who actually carry stowaways or deserters to Canada get billed, not the agents. The act needs to distinguish between the modes to reflect the varying structures of the industries involved.

We support the recommendations of the Trempe report with respect to the identification of safe third countries. I suspect that it's not a widely popular position. A safe third-country regime from our perspective, given the various measures and standards required by the recommendations, would have the effect of controlling the flow of asylum seekers away from safe countries geographically contiguous to their countries of citizenship.

The prescription of safe third countries would also address the moral problem posed by the self-selecting claimant. Canada currently receives asylum seekers based almost solely on opportunity. Many persons who claim for asylum per se could be appropriately dealt with by a safe third country, but they come to Canada because they possess the means to purchase transportation to this country fraudulently and/or illegally. It also places them at the mercy of criminal passers.

Tens of thousands of persons in more desperate need of our assistance, for example, in Africa, where you'll find the majority of the world's refugees, are too far removed from commercial sea links to Canada and too poor to afford the risky services of criminal passers. The system of purchasing a bid for asylum has to change.

With specific respect to stowaways, the prior designation of several European Union countries as safe third countries for bona fide asylum seekers would have had the effect of largely eliminating the illicit Romanian migration by sea to Canada. Romanians make up about 70% of the stowaway population. It would have provided that the safe third country status determination was respected and that the new system was reinforced by more rigorous enforcement policies in Canada. We believe that such alternatives might have prevented the tragedy that took place aboard the Dubai in 1996.

Deserters, on the other hand, have traditionally posed a different and more difficult problem primarily because they arrive in Canada as legitimate members of a crew. However, the prescription of safe third countries could eliminate numerous asylum claims of opportunity based on the notion that an asylum claim ought to have been lodged in the first safe country traversed by the mariner.

In light of the predicament of our industry, we recommend five measures: that the new legislation, when it comes to pass, include the adoption of the safe third country recommendations in the Trempe report; that the new legislation impose the financial burden on those who actually bring stowaways and deserters to Canada, not on the Canadian agency company; that there be a separate marine section of the new law to deal with, among other things, deserters and stowaways; that the new legislation empower the department to detain a vessel for up to seven days instead of the current 48-hour limit— and if you like, I'll return to that by way of explanation later; and, finally, that the new legislation include positive and independent definitions of stowaways and deserters. Currently, there's no definition of stowaway or deserter in the act, and that causes certain kinds of problems.

• 1750

The Chairman: Very good.

[Translation]

Ms. Folco.

Ms. Raymonde Folco: First, thank you for your presentation. Despite myself, I must say I found that there is a lot of truth in what you say. For example, when you point out on page 4 that many people do not come to Canada because they don't have the money to do so, that is quite true. We noted that and I myself noted that very few people come to Canada from African countries which, heaven only knows, have millions of refugees. One of the main reasons why so few of them come here is that they cannot afford to. That is quite true.

However, I would be grateful if you could give us more information about the issue of safe third countries. I find it difficult to understand how removing someone to a third country can help you, as the representative of a shipping company and as a link in the chain between the point of departure and the point of arrival. You are right in the middle: you are the link between the point of departure and the point of arrival. I would be grateful if you could explain to me how removal to a third country could make your work easier as owners of small and medium-size businesses working in this area.

[English]

Mr. David Garon: Yes, as I think Brian Grant pointed out to you a few weeks ago, obviously the challenge is to perhaps deal with removals before they become removals. That is, to try to approach the problem of claimants where they are as opposed to where they end up, which is here.

As I indicated a few moments ago, 70% of the stowaways who have come to Canada in the last seven years have been Romanians. Virtually all of them have boarded in ports in France, Belgium, Italy, Germany, and England. The reason they have boarded in those countries is that, by and large, they have made previous claims, usually in France, Belgium or Germany, where they have been refused or where they have become tired of waiting for the settlement of their claims. Indeed, when they have revealed themselves to a ship's crew during the voyage, many of them have been found with orders on their persons to depart from the various states.

Our view on the stowaway issue in particular is that if we had a safe third country provision and, as I think is indicated in the recommendation, that was for a specific class— i.e. Romanians who arrive as stowaways —we would find ourselves in a situation in which most of the Romanian stowaways would not find it attractive to come to Canada. That would be because they would essentially have their cases heard and would be returned to their home country, ultimately.

[Translation]

Ms. Raymonde Folco: Thank you, Mr. Chairman.

That's it exactly. Except in a few cases, it is almost always Romanians who stow away. I was wondering whether they could be removed to France, for example, which has legislation concerning people whose refugee claims have been refused elsewhere. Why would France now agree to take in people whose claims we refused, when France itself refused six months or one year earlier to take them in?

What I understand from your statements is that the issue is not really one of removing people to a third country but rather of frightening refugees from coming to Canada in the first place. That is basically your point. Am I mistaken?

[English]

Mr. David Garon: I wouldn't say it would be to frighten them, but I would say it would act as a deterrent.

[Translation]

Ms. Raymonde Folco: Perhaps I didn't use the right term.

[English]

A deterrent.

Mr. David Garon: Yes, to act as a deterrent. I don't think our position has been, at any time— and I've handled this dossier for the last six years. We shudder to think we might be perceived as being anti-refugee, because we are not.

The difficulty we have is that we're seeking a means to prevent people from putting themselves and others at risk. It's just not a very good way to come to Canada. It's not good for us and it's not good for them.

• 1755

We know, for example, that there have been approximately 20 deaths involved in this means of coming to the country since 1992, the vast majority of those persons having been discovered on the other side before they got to Canada. They've died from a variety of things. For example, in our business, containers that are used to transport foodstuffs have wood linings and they're usually fumigated. The fumigant is odourless, colourless, and highly toxic. Three Romanians, for example, were found dead in Felixstowe in 1993 as a result of that.

I'd like to also address the question of whether France or any other country would be willing to accept people back. There has been a step taken in that direction. In November of last year, the International Maritime Organization, which is the marine equivalent of ICAO, adopted an amendment to the international convention for the facilitation of marine transportation, to which Canada and France are signatories. That amendment, among other things, included the distribution of responsibilities for the return of stowaways and the handling of stowaway cases, including due process, obviously.

I would add that the IMO's new position was the result of the work of our department here. The chief person involved, who is now retired, was the manager of transportation at the time for Immigration Canada.

An attempt is being made to have that filter down into domestic legislation. That piece of international convention also includes, for the first time, a definition of stowaways that could be useful in Canadian legislation as well.

[Translation]

Ms. Raymonde Folco: I find that the point you raised is a very interesting one. Could you give us an example of changes to the regulation? You suggested that there are two reasons, one of which is the distribution of responsibilities, with the possibility of domestic legislation with respect to signatory countries, the definition of deserters and—

Mr. David Garon: Stowaways.

Ms. Raymonde Folco: Exactly. I found that interesting.

[English]

The Chairman: Thank you.

Mr. Mahoney.

Mr. Steve Mahoney: Thanks, Mr. Chair.

I'd like to ask you to expand. I'm a little shocked at some of the information here. I wasn't aware of the severity of this problem. Could you give us examples of some of these deportation-chartered private jets? Can we get specifics on that kind of thing?

Maybe you could explain what you mean when you say you support the individual transportation companies being charged with the cost of deportation, as opposed to— Is it your association that gets the bill? Maybe you could clarify that for me.

Mr. David Garon: At the moment, the definition of transportation company includes either the owner and operator of a ship or the Canadian agent. Usually the owner or operator of the ship is a foreign company.

Mr. Steve Mahoney: Is the Canadian agent like a broker?

Mr. David Garon: It's a little like a travel agent except for freight.

Mr. Steve Mahoney: So it's a customs broker.

Mr. David Garon: It is in a sense, in terms of size, although it assumes certain responsibilities to enter the ship with customs, for the crew with immigration, documentation, marketing, and operational support. But the ship is owned abroad and is usually operated by an operating company also located abroad.

The difficulty is that in most cases the ships that come to Canada— it's getting a little into the detail of our business —are called tramp ships, which is to say they come on inducement. They are ships that fly the seas in search of cargo. So they may come to Canada in ballast, that is unloaded, being repositioned from a country like Cuba. A broker in New York or London will have managed to sell the space on the ship to a shipper, for example, in Chicoutimi. So while the ship is at sea it will be ordered to go to Canada. It will arrive in Canada and the operator of the ship, who leases the ship from the owner, appoints an agent in Canada— that would be my member —who does the paperwork to enter the ship into Canada.

The ship arrives in Canada and we discover there are four Cubans on board who shouldn't be there. The way the law currently works, my member or the shipowner or operator are jointly or severally liable.

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The owner sails his ship, takes a bunk and says, see you later. The Canadian agent is stuck on the hook for the full amount. In this case, four individuals would be $28,000 as a preliminary assessment, and then at some later time, as much as 9 or 10 years later when the person is finally removed, if they are removed, our member would be responsible for the balance of the charge.

Mr. Steve Mahoney: That ship that would have landing rights here in Canada would have a registration. There would be a way of tracing it—

Mr. David Garon: No.

Mr. Steve Mahoney: There isn't? It disappears into the Atlantic?

Mr. David Garon: No. Unfortunately, the difficulty is very much that. In our business the shipowner has a tendency to change flag, change name, change bank, and disappear into the wilderness on a fairly regular basis. That's the nature of the industry.

One of the things—

Mr. Steve Mahoney: It seems like you have a bigger problem than we do.

Mr. David Garon: There are some solutions. It's a Canadian problem in a very direct sense because there isn't a Canadian deep-sea fleet. There isn't a Canadian deep-sea fleet for some very good economic reasons, and all of our non-American trade is carried on these ships, so we need to resolve this to enable our trade. I think it's an important issue for all of us.

One of the recommendations we've made is that the department, which currently has the power to detain a vessel for only 48 hours— that is, not to arrest the ship or seize the ship but merely to detain it for 48 hours —have that power of detention extended to as much as seven days.

The reason for that is that on a Friday night a ship is ready to sail and we discover there are three deserters. The ship has a Greek flag and Greek owners. In Greece they've gone home. So the Canadian agent will contact the Greek owner— send them a fax, telephone, whatever —but there's no one there.

Mr. Steve Mahoney: Until Monday.

Mr. David Garon: Yes, but Sunday night the 48 hours expires. The ship sails and the Canadian agent will never be able to recover the money. That's the problem.

We have some member companies that have found themselves, just on preliminary deposits alone in a period of a few months, $280,000 in debt.

The Chairman: Thank you very much.

Madam Girard-Bujold.

[Translation]

Ms. Jocelyne Girard-Bujold: Mr. Garon, what you just told us is frightening: anyone can bring in people on boats or any other vessel from outside the country and not be held responsible. When they are deported here, it is you and we who are responsible.

Mr. David Garon: Exactly.

Ms. Jocelyne Girard-Bujold: There is absolutely nothing in the Immigration Act to prevent that. Their costs become our costs.

It is important the Immigration Act take into account your recommendations D and E dealing with the difference between a deserter and a stowaway. Could you please develop on that?

[English]

Mr. David Garon: If I've understood, what we need to do is have a definition of what is a stowaway. Right now the act only treats stowaways as improperly documented arrivals, and there is a substantial difference between a stowaway, for example, who is an asylum claimant and, we believe, all other classes of claimants. Only a stowaway on board a ship puts other people at risk in the act of coming to Canada. It's the only claimant who does that, and that's because when they're on board a ship their presence is unknown.

I'll give you an example. A ship comes into Halifax carrying 6,000 containers. It has a crew of 14. Out of the 6,000 containers, perhaps 600 contain hazardous products: explosives, radioactives, poisons, and so forth. These individuals are concealed usually in deck containers— that is, loaded on deck, not down in the hold —because it's easier for them to get out after the ship has been at sea for three days.

The North Atlantic is extremely cold most of the year, and if they're tempted to light a fire in the container it may be that inside the container with them are carboys of hydrogen peroxide, which could explode and sink the ship. That would not be a very amusing prospect if it happened in Halifax harbour or in the Gulf of St. Lawrence.

The ships coming into Montreal currently are carrying about 2,500 containers. It's a similar kind of situation. In fact, Montreal is the preferred port of destination for most stowaways who come to Canada.

The Chairman: Thank you very much. Did you have another question?

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[Translation]

Ms. Jocelyne Girard-Bujold: Yes, I would like to add to your projections that it will soon cost us $40 million to remove those people who have no status in their own countries, because we are the ones who are supposed to remove them.

I myself find that unacceptable. We were never informed of that. Have you never made representations to the Department of Immigration to inform people of that? What was their reaction? Did you inform them of it on a number of occasions? I would like you to explain the situation to us. Have you been making representations for a number of years without getting them to move?

[English]

Mr. David Garon: Approximately one-third of my work time since 1992 has been spent on this dossier. I meet with senior enforcement officials on a regular basis. I last met with Brian Grant and Susan Leith on March 13. In fact, I met Mr. Matas, the last witness, in 1994 at that round of consultations on the act. I was in the control and enforcement group in that round.

We've communicated constantly to the department. We have a joint working group that we established with the department, marine lawyers, and marine insurance companies in 1993, and we've worked very hard to educate the department about the realities of our business. The position of the department, as we learned at one point, was— they really didn't take account of the difficulties they were causing us when they changed the law in a number of ways in 1992. Among other things, they said, well, our focus is really on the airlines and we're dealing with the airlines; that's the direction our policy is headed, to control the airline problem. We were left out of the calculus.

[Translation]

Ms. Jocelyne Girard-Bujold: Do these people come by boat or by plane? The focus seems to be on air transportation, but why don't they focus on what is happening in your area?

[English]

Mr. David Garon: That's precisely the point. The numbers are relatively small. Overall we've had 3,600 in the last 7 years, but the total, deserters and stowaways together, has normally not exceeded about 400 a year. That compares with perhaps, I don't know, 5,000 by air in a year.

The Chairman: Madam Augustine.

Ms. Jean Augustine: Mr. Garon, you must have given some thought to your third recommendation, that there be a separate marine clause in the new legislation that's going to be coming forward. Where do you see that specific clause being placed? Do you see it as being part of the scripting, or would you like to see a separate clause dealing with the marine—

Mr. David Garon: Currently there's a section of the act that deals with transportation violations. As a subsection of transportation violations we would like to see— Obviously there are going to be some general provisions for all transportation companies and they would continue to apply, but there are a number of specific issues we think we need to have addressed, issues that are distinct to our industry. I did make some notes just about that.

In that section, obviously, although the definitions are normally elsewhere in the act, there's the question of stowaways and deserters. Right now in the transportation violation section there's a portion on people smuggling by sea. That could appropriately be put into the marine section.

On the question of vessel detention, earlier I alluded to changes in the act in 1992. One of the changes made.— Formerly we had had a general security bond, by which when the preliminary assessment was made a group of marine insurance companies were able to guarantee their willingness to pay over a long period, which facilitated the situation greatly. These are companies that insure the shipowner. However, because of abuse of the general security provisions of the old act by the airlines the government removed those provisions and forced our members to go to an individual corporate security basis. So now we have eight companies in memoranda of understanding with the department, with private open letters of credit to guarantee their ultimate payment. The insurance companies can no longer guarantee the payment, which makes life a little difficult for them.

There are other provisions that certainly would be of a general nature. One of the things we would like to see, for example, is commercialization of a portion of the removal process, in particular privatization of part of the escort process. Obviously that's something that is going to have to be treated in a separate section of the act; the requirements for people to do that kind of work. That would free up, obviously, some person-years for the department as well.

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The Chairman: Thank you very much, David.

Because of the time factor and the fact that the committee will have to go to vote very shortly, I'll have to terminate your presentation and bring in our last witness.

Mr. David Garon: Thank you.

The Chairman: The last witness is Janina Lebon, who's national vice-president of the Canada Employment and Immigration Union.

Thanks a lot, David.

Ms. Lebon, could you introduce your members, please?

Ms. Janina Lebon (National Vice-President, Canada Employment and Immigration Union): Thank you, Mr. Chairman. With me today are Jeannette Meunier-McKay, who is the national executive vice-president of the Canada Employment and Immigration Union; and Alan Lennon, senior business representative, also from the union. And I'm Janina Lebon.

The Chairman: Thank you.

Ms. Janina Lebon: We thank you for the opportunity to be here. I believe you have our little three-page submission. We'll go through it briefly.

Jeannette.

Ms. Jeannette Meunier-McKay (National Executive Vice-President, Canada Employment and Immigration Union): I'll give you a little bit of background as to where we're coming from. The union is a component of course of the Public Service Alliance, and we represent approximately 3,000 employees from the citizenship and immigration department. It's important to realize that some of the legislative review and report is going to greatly affect our workers, our members.

One of the things we are definitely open to— and we want to make sure that's clear —is we want to be able to discuss recommendation 155 with you. That's important. It deals with detention and removal, so that will affect our members as well.

Mr. Alan Lennon (Senior Union Representative, Canada Employment and Immigration Union): Part of the issue of our presentation is the difficulty our members face, which Mr. Matas raised, between the facilitation-admission process and the enforcement process. This particular dichotomy has become much worse for our members as the department has consistently and continually downsized, cut the number of staff, and cut the processing ability of our members to deal with issues of admission and enforcement.

One of the results of this has been an ongoing process where both the members of the Canadian public and our members are put at risk because there is not enough time, energy, and resources to properly carry out the functions of the department.

Escorts and expulsion officers are required to review each case to determine if an individual will be removed escorted or unescorted and whether it should be a one- or two-person escort. What has happened consistently is that the employer has overruled decisions of the escort officers and sent people on removals either under-represented— not enough escort officers —or totally unescorted. This is called risk management.

The people at risk in this case are the Canadian public, the travelling public. We would point out that with this risk management, the department is not placing itself at risk but rather placing innocent individuals at risk. We point to the Baylis situation in Toronto as an earlier case of risk management that went wrong.

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We feel the real problem is the fact that the department is understaffed and under-resourced to do the job it is required to do, and that no matter what you do around the process, if you understaff something, it won't work.

Janina.

Ms. Janina Lebon: The issue we have, as Mr. Matas has pointed out, is with the leadership. Out of the office that does almost two-thirds or more of all the removals, and which has just gone through a reorganization, during the time we were being affected there was no senior management person on staff. We had the supervisors doing the work. Last summer there was not one senior manager on site. It's been described as management by meetings, management by absenteeism. It's been a revolving door.

The staffing practices as well, of hiring people into positions, is often inconsistent. There have been major problems, and we want to underline particularly the issue of the escort officers. These were the people who were the only ones doing the escort removals, and that was their job. They have been doing it for years. They've managed— For example, in the office where they've all lost their positions— they have other jobs —we had over 120 years of experience. It's gone.

In another region, British Columbia, these same people have been given an opportunity and had their skills recognized. One of them is grandfathered till retirement. The other three are being trained to take those skills and enter into another job with the same skills, whereas ours were told, “you're here at this level”. Some are in clerk positions and others are at the airport.

We've lost a whole group of people whose expertise was very, very critical. In the process, we have new people doing it— people who have not done many in the past and who have difficulties.

There is also the other issue of technology. If you look into the departmental history, last year they pulled the plug on the technology called the enforcement case management system after over $20 million was spent. The new system that's been implemented is ad hoc. It's DOS-based, not Windows-based. In other words, we've gone back to the dinosaur age rather than progressing forward. And that technology is needed, because you cannot track your cases; you don't know how many cases are in the system.

The staff morale I think is an overall issue. Decisions are made and are overruled based on risk management, or there's fettering. In other words, the officer is supposed to make the decision on detain or release. They'll get a note in their file from a manager saying “release”. There is a fettering problem.

We have to admit that we have not had a raise since 1991, and I think you're in the same boat, but it's a failure to recognize our services.

In particular, although I didn't mention Vancouver, I would suggest a trip and a visit to the Vancouver office that does removals, and to the Montreal office, which does another part of the removals, and in particular their detention facilities, because they've bought a provincial jail. They have cut their costs. I welcome you to my own office, which is now called the Greater Toronto Enforcement Centre, GTEC for short, formerly Detentions and Removals and formerly Central Removals.

The Chairman: Where is it located?

Ms. Janina Lebon: 6900 Airport Road. I would be very pleased to set up meetings with the staff.

Ms. Jean Augustine: Is that the Celebrity Inn?

Ms. Janina Lebon: That's the Celebrity, down the street.

The Chairman: The Celebrity. Oh, yes.

Ms. Janina Lebon: No, no— we're not at the Celebrity. The Celebrity is the detention holding centre down the street. We are in the International Centre. We have just moved in, and now the entire enforcement section of greater Toronto is on one site. I definitely think you should come to visit.

The Chairman: I think we should. I agree with you.

Ms. Jocelyne Girard-Bujold: No one's being recognized.

Ms. Janina Lebon: Now we're open to your questions.

The Chairman: Madame Girard-Bujold.

[Translation]

Ms. Jocelyne Girard-Bujold: Good afternoon, ladies and gentlemen. You describe a situation at the Department of Immigration where people have to be removed, and without an escort, which is almost apocalyptic. Everyone there had acquired experience. That was not recognized and they left. There have been sweeping cuts. The people transferred were those with the most experience. They did not retain the expertise needed to ensure that the system continued to operate.

Ms. Janina Lebon: That's right.

Ms. Jocelyne Girard-Bujold: It's appalling!

Ms. Janina Lebon: Yes.

Ms. Jocelyne Girard-Bujold: Did you make representations?

Ms. Janina Lebon: Yes. We submitted all sorts of grievances on the abuse of authority. We hope to win, particularly because there is a difference between the way our members in Ontario are treated in comparison with those in British Columbia. We are continuing our fight against the employer.

• 1820

Ms. Jocelyne Girard-Bujold: For how many years have you been filing grievances unsuccessfully? You no longer have this expertise.

Ms. Janina Lebon: It happened on October 1.

Ms. Jocelyne Girard-Bujold: In 1997?

Ms. Janina Lebon: Yes, but from that point on our grievances were submitted at the second level. We are waiting and continuing on. We have hired other people to carry out those duties, even though they are not experts.

Ms. Jocelyne Girard-Bujold: And how many grievances do you have right now strictly on that matter?

Ms. Janina Lebon: Ten.

Ms. Jocelyne Girard-Bujold: Ten.

Ms. Janina Lebon: Sixteen persons were doing all this work whereas in British Columbia there were only four.

Ms. Jocelyne Girard-Bujold: This gentleman told us that it was sometimes impossible to obtain the services of the one or two escorts that were needed, thus compromising the safety of the people taking the same flight. What you're telling us is terrible.

[English]

Ms. Janina Lebon: I'll give you another example. There was a medical escort, a person who needed to be escorted with a medical officer. There was one medical officer and one officer. The medical escort is not there to restrain the person, and there was an incident on which I have received a copy of the report.

So there are problems on the flights. There is no doubt about it. The employer feels that it's safe to send them.

As to comments made about expense, all our arrangements are made through Rider Travel. There are charters that are used. There are other methods they have done where, if one person goes, no persons go. So there have been ways to cut the funds, because there is a big issue. But there is one thing that people do not realize. Up to last year, national headquarters funded a major part of the removals. There is an unfunded pressure, as they call it, of $1.5 million for which Ontario region will have to find the money somewhere. So if you rob Peter to pay Paul, we'll have more problems.

The Chairman: Thank you very much. I'm going to have to terminate this, simply because we have to go in a few minutes to vote, as you can see.

Ms. Janina Lebon: I hear that.

The Chairman: I apologize for this, but there's nothing we can do to control it. However, we have to seriously consider your invitation.

I have one question. Do you all work in the same building?

Ms. Janina Lebon: No.

The Chairman: Is there any way, once we get to Toronto and come to visit your centre, we could get the people together?

Mr. Steve Mahoney: It's Mississauga, Mr. Chairman.

Ms. Janina Lebon: Yes, it's Mississauga.

The Chairman: Mississauga— I'm sorry.

Ms. Janina Lebon: Alan is in Toronto and I'm at Mississauga. We can be there.

The Chairman: You could be there, and as we tour and see your facility, we could discuss many of these problems.

Ms. Janina Lebon: Yes.

The Chairman: It would be more realistic to us, and you'd have more time to delve in greater depth. All right?

Ms. Janina Lebon: We would be very happy to do that.

The Chairman: Thank you very much for coming.

Ms. Janina Lebon: Thank you.

The Chairman: The meeting is adjourned.