CITI Committee Meeting

STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION

COMITÉ PERMANENT DE LA CITOYENNETÉ ET DE L'IMMIGRATION

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, April 23, 1998

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[English]

The Chairman (Mr. Stan Dromisky (Thunder Bay—Atikokan, Lib.)): Order, please.

Pursuant to Standing Order 108(2), we will continue consideration of recommendation 155 of the report of the advisory group entitled, “Not Just Numbers: A Canadian Framework for Future Immigration”, particularly issues relating to removal and detention.

Today we're very fortunate to have with us Jean-Michel Montbriand, president, and Jean-François Fiset, vice-president.

We will devote one hour to this and it will be an open forum for questions. If we finish within an hour or less, that's fine. We then have to go into another session immediately after your presentation and deliberations.

Let us begin.

Mr. Jean-Michel Montbriand (President, Association québecoise des avocats et avocates en droit de l'immigration): Thank you, Mr. Chairman.

As you just indicated, I am the chairperson of the Quebec immigration lawyers' association, and my colleague, Jean-François Fiset, is the vice-chairperson in charge of refugee affairs.

First of all, let me say a few words about our organization. Our organization was created almost eight years ago following a decision of members of the Quebec bar to try to have closer ties with our professional corporation, which is the Quebec bar. Therefore, at that time we disassociated ourselves from the Canadian Bar Association. It was in no way a political decision, but only a practical decision, since our law society, the Barreau du Québec, is a lot closer to us in our daily practices.

Our organization is reaching close to 150 legal practitioners in the province of Quebec, practitioners who are in fact in private practice or members of the legal aid corporation, which has permanent employees in the province of Quebec, contrary to other provinces in Canada.

My colleague and I total over 25 years of experience in immigration matters. We have also extensively consulted our members before presenting ourselves in front of this committee today.

I believe that each member of this committee has already received a copy of our comments concerning the report, “Not Just Numbers”, which you referred to a moment ago, Mr. Chairman.

I just wanted to tell you that this is not the main subject of our presentation today. We will briefly refer to it, but our presentation will deal specifically with detention and removal.

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[Translation]

Recommendation No. 155 in the report Not just Numbers tabled to the Honorable Minister of Immigration called for detention and removal issues to be referred to this committee for consideration, primarily with a view to restoring public confidence in the immigration system's ability to handle these thorny issues.

Our position on these issues is relatively straightforward. To restore public confidence, we believe that the relationship between persons against who a removal or detention order has been made and the Department of Immigration must improve. Relations are presently strained as a result of the many bad experiences that clients have had with the system and the unfortunate incidents which have left persons against whom removal and detention orders have been made with an extremely distorted view of the immigration system in general.

Here are a few of the things that immigration system clients believe. With respect to removal orders, they believe that immigration officers carrying out an order will come by their residence during the night, drag them out of the house in their night clothes or come by their place of work and arrest them in front of their co-workers. Is this belief well-founded? Yes and no. Obviously, the majority of immigration officers do not act in this manner, but incidents like this have occurred, often on a large scale.

For instance, a little over two years ago, a massive number of arrests were made in the middle of the night in Montreal's Zairian community—Zaire is now known as the Democratic Republic of Congo—and people were dragged out of their homes in their night clothes. Persons were also ordered under false pretexts to go to immigration centers where they were detained for removal purposes. These unfortunate incidents are burned into our clients' memories and arrests like this are still happening today in the Montreal area, although no longer on such a large scale.

As immigration lawyers who deal with these persons on a daily basis, we are often asked the question: Mr. Montbriand, Mr. Fiset, if I cooperate with immigration authorities, will they come and arrest me at my workplace? Will they come and arrest me in the middle of the night? This is the answer we give them: "Normally, that shouldn't happen. Unfortunately, we cannot guarantee that it won't happen." It is impossible for us to give them any kind of guarantees, since immigration officials cannot give us any guarantees. The main problem, however, is that the rules respecting removal and detention are not clear.

Let me give you several other examples. Persons against whom a removal order has been made believe, and rightly so, that they will not be granted a reasonable amount of time to liquidate their assets in Canada, to arrange matters for their children who often have been studying for a year or two in Canada, or to settle their lease with their landlord. These individuals have legal obligations and they require a minimum amount of time to settle their personal affairs. They feel that they won't be granted this time and it's a fact that several immigration officers working in the removal unit do not give people time to settle their affairs before they are ordered to leave.

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Similarly, people believe that they will not be allowed to make their own arrangements to go to the country of their choice. The attitude that prevails within the removal unit in Montreal is contrary to the spirit of the legislation. Consequently, people are prevented from making their own arrangements to travel to a country other than their country of origin. Their passports are even confiscated to prevent them from attempting to travel to another country.

What are the other factors that undermine the relationship between clients and the department? When a removal order is carried out, sometimes the person's flight number is kept secret, thereby preventing friends and family in Canada from trying to accompany that person, but also preventing any family abroad or even foreign NGOs from welcoming that person upon his arrival in a country where he might fear for his safety. It is not only a matter of welcoming that person, but also of monitoring his arrival.

Why are people reluctant to place their trust in immigration authorities? Because they are afraid that immigration officers will inform the foreign government of their arrival or even that they might be turned over to these foreign authorities.

What explanation is there for this lack of confidence? The newspapers have reported actual cases where persons were drugged before being sent back without any medical supervision, or handcuffed for their return flight, or even put in leg irons. I don't want to resort to sensationalism, but it is hard to forget the case of a young Dominican who was deported a short while ago from Canada. Despite the fact that both of his feet had been amputated, he was nevertheless handcuffed. Persons against whom a removal order has been made won't soon forget this.

An hon. member: That's shameful.

Mr. Jean-Michel Montbriand: Our association believes, and we held a press conference on the subject yesterday, that a public inquiry is warranted. Given the total lack of confidence between persons against whom a removal order has been made and the Department of Immigration, we respectfully submit that it is critically important to draft a code of ethical conduct for officers working in the Department of Immigration's removal unit. Others who are perhaps more noteworthy than us have recommended similar action, for example, Mr. Tassé in his report.

Obviously, the provisions of this code of ethical conduct must be public knowledge. People must be aware of the rules according to which officers operate and this code must provide for an effective complaints and inquiry process to deal with suspected cases of non compliance.

In our view, persons against whom a removal order has been made have certain obligations. They also have rights. Unfortunately, these persons are not properly informed of their obligations and rights. Requirements vary depending on which removal unit officer is handling the case. Accordingly, the obligations of the person against whom a removal order has been made also vary. Different officers have different requirements.

People do not know what they are required to do. Often, persons against whom a removal order has been made no longer have a lawyer working for them. They think that the immigration officer who called them in the first time to draw up the removal order has a duty to inform them of their rights and obligations and to let them know what is generally expected of them.

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For instance, many people do not have travel documents. On the one hand, they may be afraid to contact their embassy. On the other hand, some immigration officers are very demanding and think it's quite normal to make these kinds of demands of a person before he has even had his first interview in connection with a removal order.

People have trouble complying, not only because they are not informed, but also because they are afraid. Regardless of whether their fears are subjective or objective, they remain genuine fears in their minds.

The report Not just Numbers recommended that pamphlets be issued to inform immigration system clients of their rights. However, this could work against them if ever they violated one of the measures set out in the pamphlets.

Clearly, we agree that these pamphlets must be informative, but we see no point in viewing these documents as hard and fast rules to be imposed on persons. The report seems to suggest that a person who violates one of the provisions spelled out in a pamphlet would face a quasi-automatic detention.

Each case is a leading case. As you undoubtedly know, the immigration department deals with nationals from over 160 countries in the world. Clients come from many different cultures and have different levels of education. If the goal is to inform people, I think it is impossible to try and turn an information document into a kind of contract and to hold people liable if a problem arises.

As our brief to the minister clearly explains, we are totally opposed to the proposed dismantling—because that is what it amounts to—of the IRB, and in particular of the adjudication division which, as part of its work, rules not only on the legality but also on the advisability of certain removal measures, decides whether or not to maintain or cancel these removal orders, and occasionally—this is an extremely positive element of our immigration law system for more than 30 years now—may suspend removal orders to give the person against whom the order was made an opportunity to demonstrate that he has been rehabilitated.

You also have to understand that while persons against whom a removal order has been made lack confidence in the system, there are also other factors that come into play. When it comes to the refugee determination system, these persons have the feeling—and I have to admit that lawyers share this view—that there is no effective way of correcting a mistake if the refugee determination section rejects their claim.

While there are in fact certain mechanisms in place, they are only partial ones. They offer only extremely limited intervention options and provide no opportunity to correct all mistakes.

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The mechanisms I'm referring to are, first of all, a judicial review which takes place before the federal court. This is not an appeals process, but rather a recourse option used only when an unreasonable error has been committed by the refugee determination section. Furthermore, we respectfully submit that the PDRCCC, the system or program for handling refugee claimants in Canada, has proven to be an almost total failure since it was first implemented in 1993. The facts support our contention.

With respect to detention, we would first like to draw your attention to the fact that there are major differences in the rulings handed down by adjudicators in detention cases from one region of Canada to another. The adjudication division of the IRB acts as an important tribunal, but more cohesiveness or consistency is needed in the adjudication process. It is unacceptable for the outcome of a detention review to be as unpredictable as the outcome of a game of Russian roulette.

It is not unusual for detention reviews to be conducted in Canada. All criminal courts from coast to coast conduct reviews like this every day. And yet, I don't think that these reviews, which are referred to as bail hearings in the Criminal Code, often make the headlines.

When a criminal lawyer appears before the adjudication division of the IRB, he is always a little surprised to see that persons not suspected of having committed any kind of crime are dealt with far more harshly by this tribunal than the accused brought before Canada's criminal courts. Persons detained under the Immigration Act often face much harsher conditions than persons detained for criminal offences and unfortunately, detentions of the first kind happen far more frequently. It is worth recalling that in immigration matters, persons can be detained for two reasons. Firstly, authorities may believe that a person constitutes a danger to the public. I'm not concerned about cases like this today because I feel that if it can be proven that a person constitutes a danger to the public, in such cases, the adjudication division is simply doing its job. I'm more concerned about other cases where persons are detained because they lack sufficient identification or because it is felt that they will not show up at their immigration hearing or when the time comes to carry out a removal order. We are concerned about these individuals who do not represent any kind of danger, public or otherwise.

The report Not just Numbers, which calls for the abolition of the IRB, implicitly suggests that the adjudication division be abolished as well and that independent adjudicators be replaced by immigration officers.

We maintain, as we do in the brief distributed to you today, that to assign the task of reviewing detention orders to immigration officers would make no sense at all and would in fact be a step backward.

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We already had a taste of that regime under the previous Immigration Act and the results were not positive. Changes were introduced to create the position of independent adjudicator. I remind you that adjudicators were immigration department employees until 1993. The situation has slowly changed. Outside stakeholders have always sought more independence for these adjudicators vis-a- vis the department. We must not forget that those who argue detention cases before the adjudicators are also employees of the department.

This independent status was gained in 1993 and adjudicators now have their own separate division within the IRB. We feel that it would be a mistake to go back to the way things used to be, although we do believe that there is room for improvement and that the responsibilities of adjudicators need to be defined more clearly.

The Chair of the IRB recently issued detention directives for adjudicators. These directives are a positive step forward in the quest for more cohesiveness in the adjudication process. The objective is not to dictate to adjudicators the direction that they must take. These directives are nonetheless an important tool.

I would, however, like to draw your attention to a major shortcoming that we have identified. With respect to alternatives to detention, unfortunately, the directives make provision only for cash deposits or bail and/or financial commitments of a similar nature. Even in the criminal courts, we find a much broader range of alternatives to detention.

Many other options can be considered. In our dealings with certain adjudicators, we managed to convince them to impose alternative measures. What kind of measures are we talking about here? You have all heard about measures like this while watching good police dramas on television. A person can be ordered to check in on a regular basis with the immigration office. Unfortunately, alternatives like this are very rarely ordered in Montreal.

For example, a person can be ordered to check in each Monday morning. He can be ordered to remain within a certain area or told not to go near the border or an airport. He can be ordered to notify the department before changing addresses or to have this change of address authorized, if it means that he is moving outside the restricted area. A person can be ordered to inform his employer of his whereabouts and even be required to give notice in the event he changes jobs. Furthermore, a person against whom a removal order is pending can be required to cooperate if asked for a passport or travel documents. He can also be ordered to meet with departmental officials or with the IRB authorities in charge of adjudicating his case.

There are a number of other options available. In detention as well as removal cases, we believe that there is a need for a real mechanism, one that is independent from the department, which would allow for complaints to be filed against officials when it is felt that the detention is unwarranted or unfair.

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I remind you that pursuant to the legislation, immigration officers have the power to arrest persons and to detain them for 48 hours without having to report to anyone at all. No agency monitors their actions and their decision to detain someone is verified only 48 hours after the fact. People need to rely on an agency that they can complain to and they need to have confidence in this agency, because often, persons are detained in anticipation of their eventual removal.

In camera hearings and secret inquiries into immigration foul- ups in detention and removal cases must cease. The process must be transparent, otherwise that elusive confidence between clients and the department will never be restored. Until that happens, the public will not have any confidence in the system because the system will not work.

This concludes my comments on removal and detention. I believe my colleague would like to say a few words.

[English]

The Chairman: Go ahead.

Mr. Jean-François Fiset (Vice-President, Association québécoise des avocats et avocates en droit de l'immigration): First I'll address this committee in English and then I'll switch to French.

The first remark I would like to make is that in any given situation we always have to look at the relative cultures involved. Canada is obviously changing in its composition, and the future of Canada lies in immigration. That's something we tend to forget. We're not making babies here in Canada, or at least more people are dying than are born. This land was born and made of immigrants, and this is truer today than it was before.

We have a future in this profession because we are specialists in immigration, but foremost we are human beings. I try to define myself as a human being and never forget that I am one. I am not an animal, and there are different behaviours I expect. That also encompasses the respect I have for people around me and vice versa, and the respect I have towards my clients.

I define myself as a lawyer also, which gives me responsibilities and obligations. I have chosen this profession not by accident, but because I wanted to be a lawyer.

I also define myself as a human rights activist, which narrows the planet, because often we speak the same language, we have the same problems, we live on the same planet, and human rights issues are very fundamental to my work also. Often this work is done on a purely volunteer basis; we're not being paid to do human rights work.

I gave these preliminary remarks to state that a lot of things we take for granted, such as addressing this committee, are a privilege that many of the people we represent will never have. So I thank the panel for inviting us and letting us speak on behalf of all the people who cannot speak. We represent them and we represent an association that will fight for a lot of the rights that a lot of people have been denied. This is essentially the work we do.

It's the first time I come here, but probably not the last one. This is an educational process as far as I'm concerned. We have expertise. We represent people in court. We talk to a lot of human rights activists, lawyers and educators and professors, who immigrate here as refugees or as immigrants. So we have a responsibility also because we speak on behalf of a group of lawyers. We are speaking also for lawyers.

We have extensive experience, and the experience is not always positive. I'll give you an illustration and I'll let you draw your own conclusion on this. A couple of years ago I was representing a young Latino fellow who had claimed refugee status. He was not a criminal and had not done anything out of the ordinary, except perhaps not having the right documentation at the time he claimed refugee status. But unlike some other people, the immigration officer decided to detain him, out of his power.

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I'll open a bracket here: the parallel made by my colleague, Jean-Michel, is quite accurate. Anyone who has done criminal law or who has studied criminal law will know that we fear a lot of the powers a policeman has. I'd say—and I do criminal law as well—if you want to have an exact nature of the powers an immigration officer has, you can multiply this by 10 and you'll be close to the powers an immigration officer has: the power to detain; the power to confiscate documents; the power to bring this person to a detention centre or interrogating centre; and the power, eventually, of writing reports for illegally working or for not having the proper papers.

An immigration officer has the power to write a report alleging that the person lost his residency. So the person is a resident, but we deem the person has lost residency. We can confiscate papers that say this person is a resident and send this person for an inquiry. Lots of different things are involved. And yet we do not understand the fear that some of the clients may have towards immigration officers. Well, if you ever see an immigrant going in front of an immigration officer, you'll see how they tremble, how their voices are not even, and how they often fear these immigration officers, with some reasons.

Coming back to my anecdote, my story, this young gentleman was detained. We went for inquiry in front of an adjudicator at least on two occasions, trying to obtain freedom through argumentation. He did not have the possibility to put bail, because he did not have any family, and detention was maintained. That meant at that time there was an automatic revision within seven days. Now the first detention is 48 hours, the next one is 7 days, and the next one is 30 days, every 30 days.

So I said I was sorry, but he would be in detention for another week, and the sole question this client of mine had was, “When am I getting my freedom? When will I be free? Am I going to be free?” So that was the question, and the phone calls would come to my office.

One day I came for detention review, which was a Friday. I remember vividly. It was a couple of years ago, but I still remember. The immigration officer came to me and said, “Are you aware of what happened to your client?” I said, “No, I'm not aware of what happened to him.” She said he tried to commit suicide in the detention facility. He tried to use the cord of the telephone. An agent at the detention centre saw him and in extremis saved his life. Then he was sent to Pinel, which is a specialized institute for psychological treatment. He was under the care of a psychologist.

So I said, “No, nobody ever told me that. I'm only his lawyer, after all.” Neither the immigration officer nor the people at the centre deemed it appropriate for me to know about it. My name was on the record. I had been his lawyer in court. I was still his lawyer at the time.

Nevertheless, I was told, furthermore, that the client would be brought in front of the tribunal for his detention review. At that point I was in shock. I said, “He tried to commit suicide the day before, and you're bringing him here, inside, for a detention review?”

The person came. He was as white as these clothes here, livid, under heavy medication, completely lost, and had marks on his neck. He came to the window, and there was a guard there, he looked at the light outside, and his body was there, but his mind was not there. At that point I wondered what the usefulness was of bringing this person here in front of a court a day after his attempted suicide. But we did a detention review and detention was maintained. I would have agreed to maintain the detention, because he was under the care of a psychologist at the time.

Every seven days after that he was brought back to court for, I think, 10 sessions. At no point was I ever asked to consent to detention, which I could have done; I was his lawyer. The law didn't provide that he had to be brought physically in front of the adjudicator. However, he was. Very little progress was made in his case, but when he did and the doctors were convinced that he would be okay, he was released and Immigration did not object to his release.

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This anecdote brings a lot of questions to my mind. First of all, why was he detained? He made a refugee claim, and it was not unlike any other case. Why did the immigration officer detain him at the time? That's a question.

Number two, had he not been detained, there would probably have been no attempted suicide. So there was a direct connection between the detention and a previously lived situation.

Why was I not advised of this, as his lawyer, after he did try to commit suicide, either by the centre or by the immigration officer?

What was the purpose of bringing him to court, in view of his state? The law provided I had a mandate to represent him, so why bring him there on that day? And why bring him there every seven days, when I could have easily waived his presence and said his situation had not improved, thereby making the inquiry and consenting to his detention? I could well have done that, and it would probably have saved the cost, too, of having an adjudicator and an immigration officer present every time.

These are questions I have raised. It illustrates the kind of power Immigration has. If the power is not well exercised, it could have drastic and very serious consequences for the future of the individual, because this obviously leaves traces.

Have things changed since we modified the law? I am not sure. We may change the terms of revision, but if we don't change the mentalities of the people who are the law enforcers, we don't change much.

I'll give you a couple of illustrations in regard to things that are still current. There are very long detentions for removal purposes. A lot of our colleagues have been representing people who have been detained for over three months, four months, six months, or a year. Immigration is making little or no progress in issuing and making the removal effective, because of a number of problems—maybe it's impossible to get a passport or maybe the country where the person is from is not collaborating.

There are obvious flaws in the system, but sometimes the claimant himself could probably do better if he were not detained, because there's not much he can do in detention. A phone call will be forwarded to his lawyer, but not necessarily to his relatives. Sometimes he needs to be physically present at the embassy to sign a document. So we're enforcing, enforcing, but at the same time we're not helping the case.

There is a stage where this detention becomes clearly abusive, against the charter, but has been maintained because Immigration is opposing the release of this person. It is costing taxpayers a lot of money, and there is little progress, so at the end we'll have to eventually release him, because we can't even execute the order or there's very little chance of executing it.

These things are happening. I don't say they are happening everywhere for everyone, but they're happening too much, and detention is not the only means available to execute the order.

The Chairman: Thank you very much.

We must proceed with questions, simply because of the time factor. We're on a very tight schedule here. I'm going to allow the questioners to ask a question each and we'll see what happens after that. All right? Fine.

We'll start with Mr. Reynolds, please.

Mr. John Reynolds (West Vancouver—Sunshine Coast, Ref.): I just have one. You talked about criminals being locked up, and we all understand why that would happen if somebody had a criminal record. But you mentioned somebody with no name and no ID. How do we know, if a person does not have a name or ID when they come to the border, that they may not be a criminal or may not be carrying some kind of communicable disease? Somebody has to make that decision.

What would you suggest in that area? These people have been on the job for a long time. I guess, like everything else, if they're looking at people coming through, they have suspicions of certain people, but when somebody doesn't have an ID.... I know from the human rights side you'll say they don't have it because they can't get it, they're escaping, they're on the run. But when they got on the airplane they had one, and they could at least be honest and say, “It's a phony one, and this is why I have it—I'm running.”

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A lot of things happen there, but I'm just wondering how we protect Canadians, because first of all, that's what we have to be looking at: that the average Canadian is protected. We don't know who they are, yet right now we let some of them go on the street, and of course we have cases in my area where we see those people and later we find out they are a problem, because they have a criminal background in the country they came from, but we've let them out on the street.

What would your suggestion be, as lawyers, as to how we solve that problem?

Mr. Jean-Michel Montbriand: Well, first of all, Mr. Reynolds, in my experience, people who do have a criminal background or, even worse, who have committed crimes against humanity, for example, usually don't come here under their own name and with their own documents. They have some very good fake documents.

All this to say that in many countries around the world, it's very sad to say so, but it's very easy to get a false document, not only to travel, but to pretend that you are so-and-so when you arrive in Canada, for example. So there's no fail-safe system.

Certainly fingerprints are a good tool. Fingerprinting is now compulsory for refugee claimants. It has been like that since 1993, I believe, at least. Also, since Bill C-44, logically, I would say, there are some connections now between the immigration department and the RCMP and CSIS, not only at the back end of the system but at the front end also, to verify criminal backgrounds and criminal records. To me that is the best way to verify, because even if someone has, let's say, an identity card from Guinea, how sure can you be that this is a real ID and that therefore you should let this person roam free in our streets?

Mr. John Reynolds: Let me just ask you this question now. Would you agree then that it would not be a problem to hold people once you take their fingerprints? It may take 24 or 48 hours to run that fingerprint through Interpol, through the U.S. system, and through the Canadian system, but they'd not be released until we at least have run through those checks and found no criminal activity with that fingerprint.

Mr. Jean-Michel Montbriand: No, I would not agree with holding people. That would be equal to the policy that is actually in place in the United States, and Canada is not the United States. I don't think we want a system like theirs, and I don't think we want to have literally camps where we hold people for the time of their hearing or for the time necessary for their identification.

I believe the vast majority of people coming into Canada to claim refugee status don't just disappear into nature within the next few days. Most people will either have an address where they have been referred to or they will be taken charge of by the social services or the local YMCA and so on. I believe that if the department does its verifications quickly, in a timely fashion, it will be done within a period during which the person can be reached.

Now, those who are real criminals, those who are using Canada only as a stepping stone to go somewhere else, maybe the States, you'll never find anyway. And they will have perfect documents, maybe even a real passport, maybe even an ID card with their fingerprint from their country, because some countries have that. So I don't see it as a solution to hold everyone to try to catch a few who will anyway bypass a system that can never be perfect.

The Chairman: Mr. Saada.

[Translation]

Mr. Jacques Saada (Brossard—La Prairie, Lib.): Thank you for your presentation.

If I had to summarize your presentation in one word, the first word that comes to mind is "arbitrary". You talked about the lack of rules governing the extensive powers of officers and the arbitrary nature of their actions as well as the arbitrary way in which persons against whom orders have been made are treated. This treatment can vary from region to region.

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Since this appears to be a recurrent theme, am I to understand that basically, it is not the existing legislation that poses a problem, but rather the way in which the legislation is enforced? Accordingly, is your primary concern not the criteria and the details of this legislation?

Mr. Jean-Michel Montbriand: You are correct. With respect to removal and detention in particular, we do not think that legislative changes are warranted. We believe that first of all, attitudes must change and that a mechanism must be introduced—and I don't think this requires changes to the legislation—to monitor complaints so that persons would have some confidence in the system. You are right to say that we focus a great deal on the arbitrary nature of actions in our presentation, but we are also trying to keep a positive outlook and we talk a great deal about restoring the confidence between clients and the department. Thank you.

The Chairman: Mr. Ménard.

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): I have three brief questions. Firstly, could you talk a little about the code of ethical conduct that you would like to see introduced? Could you give us some details? For instance, what would be the main provisions of the code?

Secondly, you mentioned they need for greater cohesiveness in the adjudication process. I would like you to elaborate further on this for our benefit.

Thirdly, you stated that some immigration clients are subjected to harsher conditions than persons accused of criminal offences. Could you explain that statement to us?

Mr. Jean-Michel Montbriand: I will start with your last question. If you are charged in Montreal with beating your wife, a serious offence, unless there is direct evidence against you or an eyewitness, or unless this is a repeat offence, you will probably be released in less than 24 hours. If you are unfortunate enough to be arrested on a Friday evening, you'll remain in jail until Monday.

Of course, some strict conditions will be imposed on you. For example, you may not be allowed to communicate with the victim or to leave the area. However, you will not be detained, despite the fact that you have been charged with a rather serious offence. Compare this situation with that of the young Latin American we talked about earlier who is claiming refugee status and who does not have all of his papers in order. As a result, authorities suspect him of heaven knows what or of wanting to disappear into the wilderness, when in fact all he wants is to be granted refugee status in Canada. He is treated as if he came here to do something illegal.

I don't know if that answers your question. This goes on every day.

Mr. Réal Ménard: Thank you. Could you tell us a little bit about your proposed code of ethical conduct?

Mr. Jean-Michel Montbriand: As far as the code of conduct is concerned—and this ties in a little with the obligations we feel clients have—, in our opinion, immigration officers must inform persons against whom a removal order has been made that they are expected to take steps to obtain a passport.

Mr. Réal Ménard: Who will be responsible for enforcing this code?

Mr. Jean-Michel Montbriand: Once the code has been drawn up and made public, and we hope that NGOs and various bar associations will be involved in this process, provision must necessarily be made for a complaints mechanism to deal with cases of non compliance.

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Mr. Réal Ménard: You have a certain idea of what a code of ethical conduct ultimately should look like and I can understand that you would want it to be as neutral as possible and enforced by a third party. You are not really in a position this morning to tell us who would be responsible for the enforcement aspect. Perhaps this task would fall to an immigration ombudsman. That has yet to be determined.

Mr. Jean-Michel Montbriand: Yes, we still need to work out the details.

Mr. Réal Ménard: You talked about greater cohesiveness in the adjudication process. What exactly did you mean by this?

Mr. Jean-Michel Montbriand: I would like to say one more thing about the code of conduct. The use of force and physical restraints is something that clearly must be spelled out in the text. I don't know if it's necessary to state that there is no need to handcuff someone who is missing his two feet. That should be obvious. However, the code should be as explicit as possible.

Mr. Réal Ménard: Even the minister, dressed in the latest fashion, spoke in an appropriate tone of voice about the need for greater compassion. As you can see, some progress is being made, even though the situation may appear somewhat bleak at times.

Mr. Jean-Michel Montbriand: I was happy to hear that statement.

Mr. Réal Ménard: Can you explain to us your statement about the need for greater cohesiveness in the adjudication process?

Mr. Jean-Michel Montbriand: Obviously, we are concerned about the lack of consistency when it comes to release conditions. As I indicated earlier, the Chair's guidelines are an excellent step in the right direction, but again, a mechanism must be put in place to monitor actions.

We have observed that other witnesses appearing before your committee have also called for a follow-up mechanism, since the word "monitoring" may appear somewhat ill-chosen when dealing with judges who are supposed to be independent. Therefore, we need a mechanism to follow up on the rulings of adjudicators to ensure that the cohesiveness sought by the Chair through these directives is achieved.

This is the right of every justiciable, and we are all persons subject to the court's jurisdiction, to ensure that rulings are consistent, even if the judge changes. This is what we hope for when we have problems, whether personal problems, family problems, problems with one's insurer or problems of a contractual nature. If this is what we, as members of society, wish for, then the same rules should also apply to persons who are not citizens.

Mr. Jean-François Fiset: I would just like to say something in response to Mr. Reynolds's question. Would he and Canadians in general consent to having their fingerprints taken each time they cross a border? As a human rights activist, I see us heading in this direction. If we allow this to happen to immigrants, then I fear that this measure would be extended to us. We are all immigrants when we travel to France or to the United States.

Given the number of registers in existence, there is information about us on file at a number of locations, particularly at the passport office. This would be the next step. Your fingerprints could be taken each time you enter the United States and you could be told: "It seems that you are traveling a lot these days. You came through here last week." We need to bear this in mind.

[English]

The Chairman: Mr. Mahoney.

Mr. Steve Mahoney (Mississauga West, Lib.): I guess it's possible that the work of the justice committee on the DNA reporting national registry system might eliminate that particular problem when it comes to criminals.

What I think I have heard is that to a certain degree you would be espousing somewhat of a laissez-faire attitude with regard to the changes in that you have no problem with detaining people deemed to be a danger to the public. I think I heard Mr. Montbriand say that at the beginning. The real issue is ID and the fear that people won't report.

As a committee we're trying to come up with some solutions and make some recommendations to the minister to effect change. I'm saying the vast majority—and I quite agree with you—of the people who come here are not a problem; it's the minority. So don't change, because you're not going to catch them anyway, which is what I think you are saying as well. That is not a recommendation, I suspect, that this committee would be comfortable making.

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We're looking for some concrete suggestions. Your association is made up of 150 lawyers in the province of Quebec, and I assume some of the clients you represent would be on some form of legal aid in your province. I'm not as familiar with the situation as I am with Ontario's. So they would not have the ability to, say, put up a bond or some kind of security to ensure they would report.

Would it make any sense for an association like yours, as advocates, to take some responsibility for ensuring they will report? You take them on and you are their lawyer. Could you provide some form of guarantee or commitment? Could your association, perhaps through a joint effort, provide some comfort to the immigration department that indeed they will report and that you will work with the immigration department to get to the bottom of why they don't have ID or what it is they fear? It would be some kind of a collaborative relationship between an association of 150 lawyers representing immigrants, potential immigrant refugees, and the immigration department.

Mr. Jean-Michel Montbriand: I'm not sure I understand clearly what kind of cooperation you have in mind exactly. Certainly you have to understand that first of all we are officers of justice, according to the different codes that control our profession. We therefore have an intrinsic obligation to cooperate with the courts and with the adjudication division of the IRB as long as it exists as a court. We will act as officers of the court in front of that jurisdiction.

In dealing with the immigration department, we are the attorneys for our clients and therefore have an obligation to those clients, first and foremost.

On the specific question of ID, I can tell you that because this is the mandate and the legal responsibility we have, we are indeed cooperating very often with the department. Without an ID it is impossible in the long run to be recognized as a refugee and or to be landed in Canada. There are extreme bars and difficulties in obtaining any kind of status, but the department has enacted, in consultation with us, some guidelines to provide alternative ways of getting identification for a person. This is certainly a step in the right direction.

As for those people the department fears will not report for their removal or their inquiry, I don't see how as legal counsel we could give any kind of guarantee on behalf of our client. To do so would place us in a conflict of interest.

The Chairman: Ms. Minna.

Ms. Maria Minna (Beaches—East York, Lib.): Thank you, Mr. Chairman.

I'd like to get back to the issue of provisional status. There's one recommendation in the report, as you know, that we need to address as a committee. I wondered if you could tell us—I haven't read your submission yet, so I don't know whether you've addressed it—what your reaction is to that recommendation, in terms of not only the concept but also some of the specific suggestions as to how it might be applied and the conditions that might be imposed.

I'm looking at recommendations 122 and 123 specifically. I'm wondering whether you've studied it, you've thought about it, and what your position would be.

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Mr. Jean-Michel Montbriand: I don't have the report with me, but I believe it dealt, amongst other things, with temporary status for refugee claimants, for example.

Ms. Maria Minna: There is provisional status for claimants. If you don't have provisional status, you're in detention. You lose provisional status if you don't live up to certain conditions. Provisional status is given if a person is not likely to pose a danger to the public; is likely to appear for removal from Canada, if required; and has cooperated with respect to providing evidence of his or her identity and obtaining documents that would enable the departure from Canada.

Those are the conditions. If he is willing to comply with the conditions that would then be imposed—and the conditions are optional, they aren't defined here—he would obtain provisional status.

I want to get a sense from you whether you've thought about provisional status.

M. Jean-Michel Montbriand: The idea of provisional status for refugee claimants is certainly appealing. Very often these people are in limbo in Canada; their case can last for a very long time in certain situations. It is very difficult for them to deal with Canadian society—for work, for government services, for tax purposes, and so on. It's very difficult for them to deal with all those aspects of normal life without any status whatsoever.

We totally disagree, though, with the conditions we understood from the report would be strictly imposed to obtain this status. We are also opposed to the fact the status can be lost so easily; for example—and this was an example in the report—for not reporting a change of address within a reasonable time. We believe it is acceptable to impose some obligations on the claimants, but every day in our practice we see cases in which it is not possible to meet the obligation the administration is trying to impose on our clients. Either it's not possible to meet it or it's not possible to meet it within the time that was first imposed on us.

We believe there should be great flexibility in the conditions we have to meet, and we believe the situations that could take this status away from an individual should be decided by an independent decision-maker. We believe the adjudicator—and this is what we said in our comments—is the best person to decide whether or not the person has in fact failed to meet the requirement or the condition and determine the reasons why the person failed.

You will admit that dealing by detention with a question of a change of address is a little bit harsh, and I fail to see how it can be productive for taxpayers to jail persons who have failed to give their change of address in a timely fashion. Some people are negligent, but if you call their former number, you'll get the new number right away; you find them just like that.

The Chairman: Thank you.

[Translation]

Mrs. Raymonde Folco (Laval West, Lib.): First of all, I would like to thank you for making such a lucid, rational presentation. Considering the four or five suggestions that you have made, we should certainly be able to work on improving our report.

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I agree with you that the guidelines on removal and detention introduced by the Chair of the Immigration and Refugee Board are just that, guidelines. They are not regulations. The real problem is of the way in which immigration officers interpret these guidelines.

Let's talk about consistency. As you undoubtedly know, I was once a member of the board. What amazed me at first was the extent of the lack of consistency in the rulings handed down across the country, whether it be rulings on a refugee claim or rulings on removal and detention.

I have a question which may appear to be somewhat beside the point, but in my view, it is not. Is the notion of a safe third country relevant to be issue of removal? I think it is, but I would like to hear your views on the subject. In commenting on recommendations 95 and 96, you maintain in your brief that you are opposed to introducing the idea of a safe country. Could you explain your position? You know as well as I do that one of the biggest problems the department has is getting a person to agree to return to his country of origin. Often, the country of origin refuses to take that person back. Therefore, it seems to me that the notion of a safe country gives Canada an opening to remove these people from the country.

Mr. Jean-Michel Montbriand: Obviously, in commenting on the issue of a safe third country which is discussed in recommendations 95 and 96 of the report, our primary focus was the eligibility of refugee claims, but you are correct in saying that the notion also arises with respect to removal orders. Moreover, this is a fairly timely issue. Two or three weeks ago, the department announced a moratorium on removals to certain countries, Congo-Zaire, Rwanda and Afghanistan to name a few. I believe five countries were listed in total. I don't know if the committee has been advised of this, but the minister decided that in spite of the moratorium, persons could still be removed to the United States or to other countries that have signed the Geneva Convention and that are willing to accept them. The underlying belief here is that countries like this are considered a safe third country.

Unfortunately, contrary to what the Immigration Act says about the notion of a safe third country which would take in eligible refugees, even though this provision has never been implemented for lack of regulations, the stipulation is that the government must, before designating a safe country, confirm that this country does have a system in place which will allow the person to effectively claim true refugee status.

I submit that simply because a country is a signatory to the Geneva Convention in no way guarantees the safety of a person removed to that country. The records of countries that have signed the Geneva convention vary wildly. The fact that they signed the convention is not enough, but that is what the department has just decreed.

You all know the hell that my fellow Rwandans were fleeing. Perhaps they are not refugees according to the Geneva Convention, and perhaps a decision was made not to send them back to Rwanda, but they can be removed to some other country, provided it is a signatory to the Geneva Convention. You can see the effect that this will have. Literally, these persons will be wandering the globe. If you send them to the United States, will they be allowed to claim refugee status in that country? The United States is of course a signatory to the Geneva Convention, but they have their own rules. The same holds true for Europe.

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Our concern is that we may be operating in the dark. We may be sending people away without taking a hard look at the conditions that prevail in that country and without knowing for certain that that person will be able to claim refugee status. We are concerned that persons will be doomed to travel endlessly from country to country until the situation is resolved in their own country.

[English]

The Chairman: Thank you.

Madam Hardy.

Ms. Louise Hardy (Yukon, NDP): I'm just wondering how many refugee claimants in detention go without any kind of representation. Is there a high suicide rate while people are in detention?

Mr. Jean-Michel Montbriand: The number of unrepresented refugee claimants, at least in the Quebec region, is relatively low. I think it's lower than 5%. I don't know if there is a higher percentage in detention centres amongst the refugee claimants population. I don't know if it's higher than roughly 5%.

Mr. Jean-François Fiset: To complete what Jean-Michel said, you also have many people who are non-lawyers, who we call consultants, making representation regarding those people. Overnight they can just open an office and say they know immigration because they have been studying and specializing in immigration, taking classes, reading factums, and so on and so forth. They just open an office and say they know immigration because their sister immigrated, and usually they speak the same language.

Those people go to court and they do anything. They are often part of the problem of a round circle and people being detained and detained for long periods, because they don't know what to prove or how to effectively negotiate a bond signature or things of this sort. They are part of a bigger problem in the picture.

Also, by changing the law and the minister introducing, for instance, a notion, which I'll read in French:

[Translation]

2. Elle se dérobera vraisemblablement à l'interrogatoire, à l'enquête ou au renvoi dont elle fait l'objet.

"Vraisemblablement"

[English]

is “more likely than not”. However, many adjudicators will say they have a doubt that this person will present themselves, and they will detain on that basis. Well, saying “I have a doubt” and

[Translation]

"vraisemblablement"

[English]

are totally different criteria. So in fact we may change the law, but if the interpretation is that I need to be convinced that this person will show up, well, we're changing the law.

[Translation]

We're changing the spirit and the letter of the law;

[English]

we're changing both the spirit and the text of the law.

So changing the law is not always the solution. There are people who maintain the detention. And after a while people do get depressed, they do get isolated. Detention should be exceptional, and it is not always exceptional.

The Chairman: Thank you very much. I'll have to put an end to this discussion. You have given us a tremendous amount of information and we're very pleased that you took the time out of your busy schedule to appear before us.

We'll excuse you now, because we have to continue with our meeting. We have other items on our agenda. Thank you very much for coming.

[Translation]

Mr. Jean-Michel Montbriand: Thank you for hearing our views.

[English]

The Chairman: Thank you.

[Editor's Note: Proceedings continue in camera]