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37th PARLIAMENT, 2nd SESSION

Standing Committee on Citizenship and Immigration

EVIDENCE

CONTENTS

Tuesday, November 19, 2002

0905

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

Ms. Joan Atkinson (Assistant Deputy Minister, Policy and Program Development, Department of Citizenship and Immigration)

0910

0915

0920

The Vice-Chair (Mr. Jerry Pickard)

Ms. Joan Atkinson

The Vice-Chair (Mr. Jerry Pickard)

Ms. Joan Atkinson

0925

The Vice-Chair (Mr. Jerry Pickard)

Mrs. Diane Ablonczy (Calgary—Nose Hill, Canadian Alliance)

Ms. Joan Atkinson

Mr. Bruce Scoffield (Director, Policy Development and International Coordination, Refugees Branch, Department of Citizenship and Immigration)

Mrs. Diane Ablonczy

Ms. Joan Atkinson

Mrs. Diane Ablonczy

Ms. Joan Atkinson

Mrs. Diane Ablonczy

0930

Ms. Joan Atkinson

Mr. Luke Morton (Senior Counsel, Legal Services, Department of Citizenship and Immigration)

Mrs. Diane Ablonczy

Mr. Luke Morton

Mrs. Diane Ablonczy

Mr. Luke Morton

Mrs. Diane Ablonczy

Ms. Joan Atkinson

Mrs. Diane Ablonczy

0935

The Vice-Chair (Mr. Jerry Pickard)

Mr. Steve Mahoney (Mississauga West, Lib.)

Ms. Joan Atkinson

Mr. Steve Mahoney

Mr. Luke Morton

Mr. Steve Mahoney

Mr. Luke Morton

Mr. Steve Mahoney

Mr. Luke Morton

0940

Mr. Steve Mahoney

Mr. Luke Morton

Mr. Steve Mahoney

Ms. Joan Atkinson

Mr. Steve Mahoney

Ms. Joan Atkinson

Mr. Steve Mahoney

Ms. Joan Atkinson

Mr. Steve Mahoney

0945

Ms. Joan Atkinson

Mr. Steve Mahoney

Ms. Joan Atkinson

Mr. Steve Mahoney

Ms. Joan Atkinson

Mr. Steve Mahoney

The Vice-Chair (Mr. Jerry Pickard)

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

0950

Ms. Joan Atkinson

Ms. Madeleine Dalphond-Guiral

Ms. Joan Atkinson

Mr. Bruce Scoffield

The Vice-Chair (Mr. Jerry Pickard)

Ms. Madeleine Dalphond-Guiral

Ms. Joan Atkinson

0955

Mr. Luke Morton

The Vice-Chair (Mr. Jerry Pickard)

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

Ms. Joan Atkinson

Mr. Bruce Scoffield

Mr. Inky Mark

Ms. Joan Atkinson

Mr. Inky Mark

Ms. Joan Atkinson

Mr. Inky Mark

1000

Ms. Joan Atkinson

The Vice-Chair (Mr. Jerry Pickard)

Mr. Steve Mahoney

Ms. Joan Atkinson

Mr. Steve Mahoney

Ms. Joan Atkinson

Mr. Bruce Scoffield

The Vice-Chair (Mr. Jerry Pickard)

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

1005

Ms. Joan Atkinson

Mr. Yvon Charbonneau

Ms. Joan Atkinson

Mr. Yvon Charbonneau

Ms. Joan Atkinson

1010

Mr. Luke Morton

The Vice-Chair (Mr. Jerry Pickard)

Mr. Yvon Charbonneau

The Vice-Chair (Mr. Jerry Pickard)

Mr. Yvon Charbonneau

Ms. Joan Atkinson

The Vice-Chair (Mr. Jerry Pickard)

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

1015

The Vice-Chair (Mr. Jerry Pickard)

Ms. Judy Wasylycia-Leis

Ms. Joan Atkinson

The Vice-Chair (Mr. Jerry Pickard)

1020

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

Ms. Joan Atkinson

The Vice-Chair (Mr. Jerry Pickard)

Ms. Lynne Yelich (Blackstrap, Canadian Alliance)

Ms. Joan Atkinson

1025

The Vice-Chair (Mr. Jerry Pickard)

Mr. Steve Mahoney

The Vice-Chair (Mr. Jerry Pickard)

Ms. Madeleine Dalphond-Guiral

Ms. Joan Atkinson

Ms. Madeleine Dalphond-Guiral

Ms. Joan Atkinson

The Vice-Chair (Mr. Jerry Pickard)

Ms. Madeleine Dalphond-Guiral

1030

The Vice-Chair (Mr. Jerry Pickard)

Ms. Madeleine Dalphond-Guiral

Ms. Joan Atkinson

Mr. Luke Morton

The Vice-Chair (Mr. Jerry Pickard)

Mr. Inky Mark

Ms. Joan Atkinson

Mr. Inky Mark

Ms. Joan Atkinson

Mr. Inky Mark

Ms. Joan Atkinson

Mr. Bruce Scoffield

Mr. Inky Mark

Mr. Bruce Scoffield

The Vice-Chair (Mr. Jerry Pickard)

Mr. Yvon Charbonneau

1035

Ms. Joan Atkinson

Mr. Yvon Charbonneau

Mr. Bruce Scoffield

Ms. Joan Atkinson

Mr. Yvon Charbonneau

Ms. Joan Atkinson

Mr. Yvon Charbonneau

Ms. Joan Atkinson

Mr. Yvon Charbonneau

Mr. Bruce Scoffield

1040

Mr. Yvon Charbonneau

Mr. Bruce Scoffield

The Vice-Chair (Mr. Jerry Pickard)

Ms. Judy Wasylycia-Leis

1045

The Vice-Chair (Mr. Jerry Pickard)

Ms. Judy Wasylycia-Leis

The Vice-Chair (Mr. Jerry Pickard)

Ms. Joan Atkinson

Mr. Luke Morton

1050

Ms. Joan Atkinson

The Vice-Chair (Mr. Jerry Pickard)

Mr. Steve Mahoney

Ms. Joan Atkinson

Mr. Steve Mahoney

Ms. Joan Atkinson

Mr. Steve Mahoney

Ms. Joan Atkinson

Mr. Steve Mahoney

Ms. Joan Atkinson

The Vice-Chair (Mr. Jerry Pickard)

Mr. Steve Mahoney

The Vice-Chair (Mr. Jerry Pickard)

Ms. Madeleine Dalphond-Guiral

1055

Ms. Joan Atkinson

Ms. Madeleine Dalphond-Guiral

The Vice-Chair (Mr. Jerry Pickard)

Ms. Judy Wasylycia-Leis

Mr. Steve Mahoney

Ms. Judy Wasylycia-Leis

The Vice-Chair (Mr. Jerry Pickard)

Ms. Judy Wasylycia-Leis

The Vice-Chair (Mr. Jerry Pickard)

Ms. Joan Atkinson

1100

Mr. Bruce Scoffield

Ms. Judy Wasylycia-Leis

Ms. Joan Atkinson

The Vice-Chair (Mr. Jerry Pickard)

CANADA

Standing Committee on Citizenship and Immigration

NUMBER 003

2nd SESSION

37th PARLIAMENT

EVIDENCE

Tuesday, November 19, 2002

[Recorded by Electronic Apparatus]

¿ (0905)

[English]

The Vice-Chair (Mr. Jerry Pickard (Chatham—Kent Essex, Lib.)): Members, I think we should go ahead. Unfortunately, Mr. Fontana cannot be here this morning.

Just so everyone understands the process, we referred back to a motion put on the floor by Bob Wood at our initial meeting that allows the chair to designate someone to be the chairman of the meeting, with all the normal powers of the chair. That was passed by the committee and signed by the clerk. So I have been asked to chair this meeting and the meeting this afternoon.

We're very fortunate this morning to have Joan with us.

Joan, perhaps you could get us under way by introducing the staff people you have, and we'll then move ahead.

Ms. Joan Atkinson (Assistant Deputy Minister, Policy and Program Development, Department of Citizenship and Immigration): Thank you very much, Mr. Chairman.

I have with me Luke Morton, our legal counsel. He has been intimately involved in the negotiations on the safe third agreement and the regulatory drafting we are going to be discussing today. I also have Bruce Scoffield, the director of asylum policy in our refugees branch, who has also been intimately involved in the negotiation of the agreement itself and the work we are doing on the regulations and implementation.

We have a deck, which I will use as the basis of my presentation today, dans les deux langues officielles. I will do my presentation primarily in English, mais nous sommes disponibles pour répondre aux questions dans les deux langues officielles.

The safe third agreement, as you know, is an integral part of the smart border action plan signed by Deputy Prime Minister Manley and Governor Ridge last December, almost a year ago. The objective of the safe third agreement is to share responsibility between Canada and the United States for refugee claimants. It's based on the premise that, where a refugee claimant could have sought effective protection in another country before coming to Canada, there is no need for Canada to hear that claim. That claim should be heard in the country in which the individual first arrived.

What the safe third country agreement attempts to do is to cut the link between entry to the United States for the purposes of coming to Canada to claim refugee status. If individuals are in the United States, it is a country that offers the same protections, the same due process, to refugees. The individual should have claimed protection in the United States.

Our real objective between Canada and the United States is to better manage the flow of refugee claimants between the two countries. It will lead to not only better management of that program but also enhanced security for both Canada and the United States.

The first slide gives you some background in terms of the consultations we have conducted. Within the federal government, the departments of foreign affairs and justice have been very closely involved in the process. We have consulted with provincial governments. You will see that New Brunswick, Newfoundland and Labrador, and Nova Scotia have provided letters of support. Quebec, Ontario, and British Columbia have also expressed strong support for the agreement.

We have done a series of consultations with stakeholders and non-governmental organizations. In July, Canada and the United States together held consultations on the draft agreement in Geneva with the United Nations High Commissioner for Refugees. I should point out here that we will continue to work very closely with the UNHCR. They are supportive of the objectives of the agreement. We have been discussing with them not only the agreement but also a role for them to play in the ongoing monitoring of the implementation of the agreement—as you will see in the agreement.

In August we consulted with a number of NGOs, including Amnesty International and the Canadian Council for Refugees. I know that you will be receiving witnesses from some of the groups. They are opposed to the safe third country Agreement. But I would like to point out at this stage that we have found the consultations to be very useful and constructive, and we have, in fact, taken on some of the comments from the groups. We did make some changes and amendments to the agreement as a result of our consultations with both the UNHCR and the NGOs.

The negotiators reached agreement on a draft text at the end of August. We posted the draft agreement on our website in September. We hope to have the final agreement signed by the United States and Canada by early December. But even after signature of the agreement, it will take some time to implement it. We have the draft regulations, which we are looking at today. We have standard operating procedures that we are discussing with the Americans, because we obviously want to have the same procedures on both sides of the border. We will need to train our staff, and so on. It will take some time for us to actually implement the agreement once we have final signature.

¿ (0910)

In regard to the regulation process, on the next slide we talk a little bit about what we have done to date. The regulations were prepublished on October 26. The prepublication period closes on November 26, and to date we have had relatively few comments from the public. Most of the comments, as the slides say, have focused on the definitions we've used for “family member” and “unaccompanied minor”, and we'll talk about that a little bit later.

The regulations will take effect once the safe third country agreement actually comes into force, which, as I said, will be several months from now. You can see as well that we have a commitment from Secretary of State Powell that the agreement will be approved in time for the next meeting of Governor Ridge and Deputy Prime Minister Manley, which we expect to be December 5.

Moving on to the next slide, on the purpose of the regulations, this sets out, first of all, the legislative authority, paragraph 101(1)(e) of the Immigration and Refugee Protection Act, and section 102 of IRPA, which sets out the criteria for designating a country so described. So the regulations will amend the act, or will amend to make the United States a designated country. The act actually allows for us to indicate safe third countries, and the regulations allow for that designation of the United States as a safe third country.

Slide 4 sets out what the regulations will do. As I said, they will designate the United States as a country that complies with article 33, which is the all-important non-refoulement provision of the Geneva Convention, and article 3 of the convention against torture, which, as you know, are key features of our protection decision-making under the new Immigration and Refugee Protection Act.

The regulations define various components of the agreement, and specify that the provisions are only applicable at land ports of entry--this is an important distinction--except for persons who are being removed, transiting through Canada, and are transiting through Canada via Canadian airports. They also provide that either party may suspend the agreement, completely or partially, upon giving notice of such a suspension.

I think one of the keys here in the safe third country agreement, and therefore in the regulations, is describing the circumstances in which the agreement would not apply. The agreement says in article 4 that it would not apply to a claimant who has a family member who is a Canadian citizen or permanent resident, or has a family member 18 years or older who has had a claim referred to the IRB; so an individual in Canada who is making a refugee claim, is not a permanent resident or a Canadian citizen but is in the system and has been referred to the IRB. There are exemptions for unaccompanied minors; an exemption for persons who had a visa to enter Canada, which means that we actually gave them overseas authority, if you will, to enter Canada as a temporary resident; or individuals who may be granted entry to Canada without the requirement of a visa but are required to have a visa to enter the United States.

An example of such a situation would be Mexican nationals who do not require a visa to enter Canada but who do require a visa to enter the United States.

The next exemption is persons who have been charged in the U.S. or a third country with an offence that could subject the claimant to the death penalty. So we will not turn back individuals who could be subject to the death penalty as a result of their criminal background.

Finally, there is an exemption for individuals who are nationals of a country where our minister has imposed a stay on removals or a suspension of removals. As an example, we currently have suspension of removals to Afghanistan. So an Afghani national who came to the port of entry at the land border to claim refugee status in Canada would not, under this agreement, be turned back to the United States. They would be allowed forward to make their claim in Canada.

Moving on to some of the key definitions, which then expand upon and describe more clearly who is exempt, in proposed regulation section 159.1, a family member is defined, as you can see, very much along the lines of how we define family class in our Canadian regulations, but with the addition of more extended family members.

¿ (0915)

Family members will include not only spouses and common-law partners, children, fathers, mothers, grandfathers, grandmothers, but also brothers, sisters, uncles, aunts, nephews, or nieces. So there is a fairly broad definition of family member for the purposes of the exemption.

The second exemption I mentioned, described in proposed section 159.5 of the regulations, is a person who is not yet 18 years of age and is not accompanied. This exemption is for children who are alone, with neither a spouse nor a common-law partner and with no mother, father, or legal guardian in Canada or the United States. Obviously, if they did, they would be exempt under the family provisions I just described.

Public interest exceptions I've touched on already. We have specified three public interest exceptions, persons who have been convicted of offences punishable with the death penalty in the United States or in other countries and persons who are nationals of a country where we have imposed a stay or suspension of removal.

The next slide talks a little about what we believe will be the impact of the safe third country agreement. Slide 9 gives you some statistics. In 2001 the 13,497 persons coming from the United States made refugee claims, and 95% were received at land border points of entry. That works out to about 34% of all refugee claims received, because, of course, we receive claims at the border, at airports, and in-land. In 2002 over 36% of all our refugee claims have been from persons coming from the United States.

With regard to slide 10, it's always difficult to be precise when we try to determine the impact of the safe third country agreement. But we know not all refugee claimants coming from the United States will be turned back to the United States as a result of this agreement. It only applies at the land border points of entry, so individuals who claim at an airport coming to Canada from the United States will not be subject to this agreement and will be able to claim refugee status. Persons who enter as visitors and later claim in-land also will not be subject to this agreement and will be able to claim in Canada. Others will fall within the exceptions we described, family member, unaccompanied minor, and so on. Finally, still others we know will attempt to try to enter surreptitiously. It is very hard to estimate what the numbers might be. On our best guesstimate--and I have to underline that this is a guesstimate--the number who may be returned to the United States under this agreement will be more in the neighbourhood of 5,000 to 6,000 claimants a year.

One of the key issues, of course, in negotiating a safe third country agreement with the United States, as it is for any other country we may wish to enter into such an agreement with under the provisions of the Immigration and Refugee Protection Act, is the comparability of legal standards. This last slide indicates the comparison we undertook in respect of entering into the agreement with the United States. Both countries meet or exceed international standards for refugee protection, and refugee claimants will have access to a full and fair hearing. This is a very important point in articles 3 and 4 of the agreement itself, guaranteeing that individuals who are returned to the United States will have access to the American refugee determination system.

¿ (0920)

The 1951 Geneva Convention neither affirms nor rejects the application of the safe third country concept. As I indicated, the UNHCR accepts it as legitimate that states enter into these sorts of responsibility-sharing agreements. Refugee claimants themselves obviously benefit from due process and human rights protections in both our system and the American system. Obviously, we are always mindful of the charter, and the charter requires that any agreements we enter into of this nature will guarantee full and fair access to a refugee determination system.

That is the end of my presentation, Mr. Chairman. We'd be happy to take your questions.

The Vice-Chair (Mr. Jerry Pickard): I really appreciate your brevity in giving us in a nutshell what's happening.

Could you help me by elaborating a little on the reasoning as to why claimants from the United States can enter through airports in a different fashion and not be turned back, as opposed to people coming through land entry?

Ms. Joan Atkinson: I really have to point to the process of negotiation. We agreed, under the smart border action plan, that the two countries would negotiate a safe third country agreement. That commitment did not get into any details as to exactly how large the agreement would be, what the scope of the agreement would be. It was a commitment to enter into negotiations and ultimately to reach agreement on a safe third country agreement. So it was really in the process of negotiation back and forth between the two countries where both governments could agree that the agreement would apply to land border ports of entry.

The Vice-Chair (Mr. Jerry Pickard): Won't we have inside people giving advice to refugees to get on a plane and fly to Canada, as they won't be refused entry?

Ms. Joan Atkinson: As is pointed out in the presentation, an agreement like this will mean people will look for alternative ways to seek entry to Canada and claim refugee status. So we are very cognizant of the fact that people will seek alternative ways. We have other tools at our disposal to deal with improperly documented passengers getting on airplanes to come to Canada. As you know, through our immigration control officer network and the work we do with transportation companies, we train airlines to detect individuals who are attempting to get on planes with improper documents or fraudulent documents. That work will continue, and we will work with airlines in the United States to try to ensure that they are continuing to do the kind of checking they need to do to ensure that people are properly documented when they get on planes to come to Canada.

The other thing I should point out is that individuals who are in need of protection and are in the United States do have access, and that is the whole point of the agreement. For individuals who may want to try to get to Canada to claim protection, if they are in the United States, the Americans have a very similar refugee determination system. It meets or exceeds all the same legal standards. So individuals who may be intercepted getting on planes with improper documents to come to Canada always have the choice of claiming protection in the United States.

¿ (0925)

The Vice-Chair (Mr. Jerry Pickard): Thanks, Joan.

Diane.

Mrs. Diane Ablonczy (Calgary—Nose Hill, Canadian Alliance): Thank you, Mr. Chair.

Thank you for this overview of the regulations. To follow up on the chairman's question, what percentage of claimants presently come to Canada through land ports and would therefore be subject to this agreement?

Ms. Joan Atkinson: Bruce, do you know the proportion who arrive at land ports currently?

Mr. Bruce Scoffield (Director, Policy Development and International Coordination, Refugees Branch, Department of Citizenship and Immigration): Of the refugee claimants who came to Canada directly from the United States last year, 95% presented themselves at land border ports of entry. Only 5% presented claims either on arrival at an airport or after arrival at an in-land office.

Mrs. Diane Ablonczy: I have a question you might expect about proposed section 159.6. I'm puzzled about this part of the regulations, because in the new immigration and refugee act and regulations an individual is precluded from seeking refugee status in Canada if they have been convicted of an offence for which there is a maximum imprisonment of at least ten years. This regulation, of course, is a complete contradiction, because under the safe third party provision it would allow such individuals to make a claim. I'm puzzled as to how that contradiction can be explained.

Ms. Joan Atkinson: Let me try to explain the apparent contradiction. What proposed section 159.6 says is that an individual who could face the death penalty as a result of a criminal conviction will not be returned to the United States. Though we are not returning them to the United States, but bringing them into the Canadian system, they will still be subject to all the same eligibility rules in the Canadian system. For example, if they fall within the category of people who are ineligible to go and have a full hearing in front of the refugee board, they will be sent into the removal system, but be eligible for a pre-removal risk assessment, where their claim for protection will be assessed by CIC before any decision to remove them. The provisions here in the regulations are simply to say we will not send people back if they could face the death penalty, but they are still subject to the eligibility criteria in the Canadian system.

Mrs. Diane Ablonczy: Okay, they're not eligible, but they will still be in the system.

Ms. Joan Atkinson: That's right, and given that they're in the system, they'll have their claim for protection heard, but not at the Immigration and Refugee Board. Individuals who are excluded or ineligible to have their refugee claim heard at the board go directly into the removals stream. In the removal stream they have access to a pre-removal risk assessment, which assesses their need for protection, before they are removed. In the pre-removal risk assessment process we balance the need for protection of the individual against their inadmissibility and the need to protect the safety and security of Canadians. We do that balancing before any final decision is made to remove them. So they do get a chance to have their claim for protection heard, but it's not through the full refugee determination process in front of the board. Rather, they go directly to removal and a pre-removal risk assessment.

Mrs. Diane Ablonczy: I'm wondering what the legislative justification is for that inclusion, because there's nothing in the agreement from which such a provision would flow in the regulations. I'm wondering what this provision is tied to.

¿ (0930)

Ms. Joan Atkinson: I'll ask Luke to comment on that.

Mr. Luke Morton (Senior Counsel, Legal Services, Department of Citizenship and Immigration): The Supreme Court jurisprudence is very relevant. In the case of Burns and Rafay, the Supreme Court has precluded the Canadian government from returning a person to the United States when they're facing capital punishment.

Mrs. Diane Ablonczy: It's my understanding that Burns-Rafay applied only to Canadian citizens. Is that not correct?

Mr. Luke Morton: Well, it's correct that it was a Canadian citizen question, but I don't think we can easily conclude that what the case stands for applies to only Canadian citizens.

Mrs. Diane Ablonczy: But you can't necessarily conclude that it does, either.

Mr. Luke Morton: I think it's a question of risk, and the risks are quite high.

Mrs. Diane Ablonczy: I also wonder, with respect to this provision, whether there would not be a concern that Canada would become a safe haven for people who have been charged with capital offences like murder, which would include terrorists. Not only would there now be the exception whereby they would be accepted into our system, but we know, practically speaking, such individuals are not detained, they are at liberty within our society. Given the new realities with the concern about terrorism, I'm puzzled, if not shocked, that such individuals would be given an open door into our country. I can't see any other result but that we would become an incredible magnet for terrorists and other people who have a history of capital crime.

Ms. Joan Atkinson: Let me respond by saying first that an individual who has a criminal conviction or criminal past, coming from the United States, would be treated the same way, in this context, as anyone coming from any other country. That is, looking at the ineligibility provisions under the Immigration and Refugee Protection Act, they would not be eligible to have access to the complete refugee determination system.

What is key is that they have a chance to have their claim for protection heard. As with any other serious criminal, or anyone else who is arriving in Canada who we consider may pose a threat, we have the ability, under the Immigration and Refugee Protection Act, to detain--and we do detain--individuals who pose threats. Our first priority, in terms of detention, is to determine those who may pose threats and detain them under the provisions of the Immigration and Refugee Protection Act.

It is no different for individuals coming from the United States who may fall within this exemption. If the decision is made that these persons pose threats and are therefore detainable under the act, then they will be detained. They are not eligible to go to the full refugee determination process at the board.

Once the determination is made that they are ineligible, and a removal order is made because they are inadmissible to Canada, we proceed to make removal arrangements. As I said, they get a chance to make a protection claim before we remove them.

This is no different from how we deal with any other criminal, terrorist, war criminal, member of organized crime, or others who pose threats to safety and security. We detain them and put them in the removal system. They have the chance to have their need for protection assessed, and if they are found not to be in need of protection, then they are removed.

Mrs. Diane Ablonczy: I would just point out that in our system detention is a rarity, and the screening process to make a risk assessment is not all it should be, given the Arar case as the latest example. I think this is a most unwise inclusion in the regulations, and see no reason at all why Canada should open itself up to further risk in this regard. I do not agree there's a legislative basis for it.

Burns-Rafay has never been extended to non-citizens. There's nothing in the safe third country agreement that would allow this inclusion. I would urge the committee to oppose this very strongly.

¿ (0935)

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

Steve.

Mr. Steve Mahoney (Mississauga West, Lib.): I think Joan would like to respond to that.

Ms. Joan Atkinson: Yes, thank you very much.

Article 6 in the agreement says that either party, at its own discretion, may examine any refugee status claim made to that party, where it determines that it is in its public interest to do so. That's the article and the agreement upon which we are making these regulations in proposed section 159.6.

We had a choice, really, in looking at article 6 of the agreement. We could have left it extremely wide open and totally discretionary, in which case you would have some difficulty having some consistency around how that particular article was implemented, or we could have specified what we really meant by public interest.

In looking at public interest and the jurisprudence from the Supreme Court on Burns and Rafay, the risk of charter challenges as a result of that jurisprudence was such that we felt it was important and prudent on our part to ensure we were clear that individuals who faced the death penalty would be exempted from this agreement.

I would also point out, on the issue of screening, that since October of last year we have been doing much more screening of refugee claimants as they arrive. As I know the committee is aware, we have instituted front-end security screening of refugee claimants. Individuals coming here who are exempted from this agreement and brought into the system will be subject to all of the front-end security screening we do now on all refugee claimants. It is a very thorough screening, and involves our partners in the law enforcement community.

Mr. Steve Mahoney: To follow up on that, is this any different from our relationship regarding extradition to the United States? There was a fairly public case where we refused to extradite an individual who was facing the death penalty. Is this any different, is it the same thing?

Mr. Luke Morton: Certainly, the same legal considerations are at play.

Mr. Steve Mahoney: So if the person is convicted and winds up here, they've obviously escaped. They would be incarcerated here in Canada, is that true?

Mr. Luke Morton: That's true.

Mr. Steve Mahoney: So they're only escaping from one jail cell to another, they're not being released into the general population. That's on a conviction. What about a charge? Obviously they are innocent until proven guilty in both jurisdictions--at least, I assume that's true. How would they get their day in court if they were here?

For example, in Bill C-17 there is a provision that allows us to share information about any passenger on an aircraft in Canada who has an outstanding warrant for their arrest for crimes of this nature--kidnapping, murder. So let's say we find someone who's flying within this country, they have a warrant outstanding in the United States, we share that information, we apprehend them. What happens?

Mr. Luke Morton: The two processes proceed, both the refugee claim and the extradition, and there's a point where they merge. Usually, the extradition process is paramount, because there is, in the Extradition Act, a mechanism for the Minister of Justice to consider risk determinations. So it would proceed like a normal extradition case.

Mr. Steve Mahoney: Help me with that; what does that mean? Where will the trial take place? They've been charged with murder, it's an outstanding warrant, there's no proof of guilt or innocence, and they're in our custody.

Mr. Luke Morton: The Extradition Act--I'm not an expert on extradition, but I know something about it--requires that a prima facie case be established before extradition can proceed. In a case where someone is facing capital punishment, assurances would have to be given that the person will not face capital punishment before they are returned to the U.S.

¿ (0940)

Mr. Steve Mahoney: Even though they're not convicted, they're still only charged?

Mr. Luke Morton: Right.

Mr. Steve Mahoney: So let's take the worst case scenario. In the U.S. it's Texas, and they're not about to waive their right to execute. Do we then try that individual here in the Canadian system based on a charge laid against that individual by an American jurisdiction?

Mr. Luke Morton: That's a good question. I'm not aware of an instance where we have done that. Normally the assurances are given, or that's the experience so far.

Mr. Steve Mahoney: I guess you can spin this either way, but basically, this falls in line with current practices under the Extradition Act. We're not about to start sending people back to be subject to the death penalty, and there are safeguards in place.

I want to talk about the airport exclusion. It seems to me this might have been a little give and take. I'm not totally sure why, and I wonder if any of you are. Under our rules and our arrangements with the transport companies, if we find someone who has arrived here improperly, the transport company can be responsible for taking them back. Is this some attempt by the American government to save their U.S. carriers from that burden?

Ms. Joan Atkinson: No, I don't think I would say that's where the American government's position was on this. It was obviously part of negotiations and give and take, as you say.

Mr. Steve Mahoney: It's only 5%, but I'm curious; it's 5% of the 2001 claims--September 11 was in the last quarter, so I don't know how much the numbers went up in the remainder of September, October, November, and December of that year, and we don't have a percentage for 2002. Most of us would have read the article yesterday that says we have a backlog of 40,000 or 45,000 people who have come here since September 11 and claimed refugee status. Are we seeing a huge rise in refugee claimants after September 11, and what percentage of them would be coming from the United States and across land borders?

Ms. Joan Atkinson: We haven't seen a huge surge in refugee claimants since September 11. The backlog is a cumulative one. As you probably know, the number of refugee claimants has increased substantially; before September 11 we were seeing significant increases in the intake of refugee claimants. It had been stable at around 25,000 annually and rose to 45,000 in 2000. The backlog figures that you have read and heard about are the cumulative effect of the increased intake in refugee claimants over the last two years.

We did see some peaks in intake of refugee claimants before June 28, which was the implementation date of the new Immigration and Refugee Protection Act. There was a sense or some fear that we were about to impose the safe third country agreement on the date that we implemented IRPA. As a result, we did see a peak of refugee claimants at our land borders. But I think the numbers of refugee claimants arriving at our land borders have been more or less consistent. About 95% to 96% continue to come from the United States, with the absolute numbers more or less stable.

Mr. Steve Mahoney: Is it safe to say that, if we monitor—and I assume we will monitor—the 5% coming through airports, we might go back and do another round of negotiations if the land flow suddenly dries up and they all come in by air?

Ms. Joan Atkinson: There is always provision for either government to reopen the agreement, or to negotiate subagreements or amendments to this agreement. That's always a possibility.

Mr. Steve Mahoney: I have some more time, and I wanted to ask about the PRRA. If we have this huge backlog....

I went to Lacolle, Quebec, where 5,000 people crossed the border on foot from the United States to Canada, and 50 went the other way. I was under the naive impression that, with this agreement in place, we would just put up a big stop sign and say, “Turn around and go back”, but that's obviously not the case. They still come in at Lacolle, Quebec, still in these numbers. They don't go into the full system, but they have to go through the PRRA to determine that they're not at risk.

How is it going to work when those people walk across the border?

¿ (0945)

Ms. Joan Atkinson: As we talked about in the case of criminals, what this really deals with is the very front end of the process and the eligibility to claim. As we talked about, there are a number of criteria by which we can say to an individual, “You're not eligible to claim; you're not eligible to go into the full refugee determination system”. In this particular part of the IRPA, the Immigration and Refugee Protection Act, the ineligibility means that you are excluded from the system in totality.

If you arrive, and it is determined that you fall under this agreement, you don't get access to PRRA. You are determined to be ineligible to claim protection--full stop--in Canada, because you could have claimed protection in the United States, and you are subject to being returned to the United States.

So, no, there will be no PRRA for those individuals who are subject to this agreement.

Mr. Steve Mahoney: So I wasn't naive; we just turn them around?

Ms. Joan Atkinson: We have to make a proper determination that they don't fall within one of the exemptions and so on, but, yes--

Mr. Steve Mahoney: Are we talking about on the spot, 24 hours, a week, four years...?

Ms. Joan Atkinson: No. The idea is that we will turn them around as quickly as we can. That's part of what we're working out now in terms of implementation, because one of the challenges for the agreement and the regulations is determining those who fall within the exceptions. We need to ensure that we are determining fairly and appropriately who falls within one of the exceptions. But assuming we can make this determination quickly, people will be turned around quickly.

Mr. Steve Mahoney: Thanks, Mr. Chair.

The Vice-Chair (Mr. Jerry Pickard): Madame Dalphond-Guiral.

[Translation]

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ).: Thank you, Mr. Chairman.

Good morning to you all. This is our first opportunity to have a bit of a discussion about the safe third country agreement now that we have one and we are at the point where we need to talk about the regulations. Everyone knows that it is the regulations of a piece of legislation, and the same thing holds true for an agreement, that really determine the strength of the act or the agreement. In the documents that you have submitted to us, Joan, you refer to the fact that the United States, unlike us, cannot publish the regulations until the agreement has actually been approved. The regulations are published after. They are then completely free to submit the regulations that they want. You said that Canada has made a commitment to consult the stakeholders again. I will tell you what I fear. By consulting the stakeholders once again, once the American regulations are known, are you not simply trying to establish some type of equivalence? I may be wrong, but I think that the American regulations will be much tighter than ours. Our regulations are already quite tight, but I think that theirs will be even more so. Will Canada try to maintain some type of independence?

Earlier, I was handed an article published on November 15 in The Washington Post. I will read you the last four lines of this article. I will even read them to you in English because I do not dare do a translation.

[English]

This is what they think:

This might encourage the Canadians to align their system more closely with U.S. practice, which is not necessarily a bad thing. If the U.S.-Canadian border is to remain as open and transparent as it is today, the visa, asylum and immigration regimes of both countries will inevitably become more similar, not more different.

[Translation]

I can tell you that this concerns me. I understand that the Americans would find it ideal if we were to have the same immigration and refugee protection rules, but that concerns me, and I am wondering what type of control we have. There is the agreement that was negotiated and the regulations that we are finding out about now, but over which we have ultimately little say and which can be reopened and strengthened... Isn't this somewhat like a Pandora's box?

¿ (0950)

[English]

Ms. Joan Atkinson: Let me see if I can try to assure you on that point. The regulations for Canada and the regulations for the United States are the legislative and regulatory effect of the agreement. In both of our jurisdictions in order to actually implement the agreement we need to have legislative and regulatory authority to do so. What we have done in looking at the agreement is we have incorporated the key components of the agreement in the regulations. So, for example, in article 1 of the agreement, the family member is defined, and we have simply taken that and put it in our regulations so that we can give effect to that part of the agreement. The United States will do exactly the same in terms of their regulations because this is what we have negotiated.

So their regulations will not go beyond what is in the agreement. They will be very similar to our regulations. One area where the agreement is a little more flexible is the definition of public interest and we of course have chosen to be fairly explicit in our regulations in order to be transparent on what we mean by public interest in the Canadian context. The American system does not allow them to actually publish their regulations until they have a signed agreement. Our system is different. We're able to do the pre-publication of our regulations before we actually have final signature on the agreement, but the regulations will be very much the same.

[Translation]

Ms. Madeleine Dalphond-Guiral: We will have to see about that. Later in your presentation, you said that either of the two countries participating in the agreement could suspend it following notification. How much notice must be given?

[English]

Ms. Joan Atkinson: The agreement doesn't have an expiry on it and there is an annual review of the agreement. It's not unusual in agreements of this sort between two countries or two parties to have an escape clause of some kind. If either party or either country believes the agreement needs to be reopened or the agreement is not working in one fashion or another, then either country can say, we don't think this agreement is what we'd thought it was going to be. And they can indicate, with notice, that they will suspend. How long it would be suspended, I'm not sure.

Bruce, can you comment on that?

Mr. Bruce Scoffield: In order to terminate the agreement, it's necessary to provide six months' written notice. In order to suspend the agreement or any part of the agreement, suspension is immediate upon serving notice in writing.

The Vice-Chair (Mr. Jerry Pickard): Madame Dalphond-Guiral.

[Translation]

Ms. Madeleine Dalphond-Guiral: I would like to have some clarification. There are certain exceptions, which is a very good thing. These exceptions would include the case of someone who arrives at the border from the United States and who says that he or she has an aunt who lives in a small town in Quebec, in Saint-Fulgence, for instance. It's wintertime and there is a snowstorm. This person doesn't really know what his aunt's name is. He knows that she has such and such a name and he thinks that she's married. He knows that she lives in Saint-Fulgence. What would happen to this person who is at the border and who has to wait for someone to check out the information? We have to believe what the person is telling us, and I would imagine that Immigration Canada is responsible for finding the evidence. Is that the case, or does the applicant have to show up with the birth certificate of this aunt, her address, telephone number and I don't know what else?

[English]

Ms. Joan Atkinson: It's a good question, and these are all issues that we are working through now as we do our standard operating procedures.

One of the basic concepts in the existing immigration law and regulations is that the burden of proof falls on the applicant. That's a concept that is pretty consistent across almost all of the procedures under the immigration act. Understanding and realizing that refugee claimants don't necessarily arrive with a lot of documentation and their whole life history neatly documented that they can provide us with, we acknowledge that it is a challenge for both the decision-maker and the refugee claimant. In the context of the standard operating procedures, we are working with the United States to have processes where we can deal with those issues.

Part of what we're looking at, for example, is a set of common questions that Canadian immigration officers and American immigration officers will ask, that will hopefully get at these issues of determining whether or not they indeed have the family member that they claim to have.

So these are things that we are working out now in terms of how we will actually make those sorts of determinations.

¿ (0955)

Mr. Luke Morton: I'll just add, this is not a brand new determination for immigration officers, because it happens even today outside the context of safe third country. A visitor comes through the United States and says he or she has a relative in Canada, and that officer has to make that determination, whether it's a bona fide visitor. So they are experienced in these types of issues.

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

Inky.

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

I have a number of very brief questions. First, you mentioned undocumented claims. How many are there, actually, out of the 13,497?

As well, with regard to country of origin, do you keep data on the claims and where they come from?

Ms. Joan Atkinson: In terms of what percentage are undocumented, I can't say precisely in terms of those that come at the land border, but of our refugee claimant movement, about 60% overall are undocumented. So if you apply that to this particular population, I would say probably about 60% of them arrive undocumented.

As to source country, I don't think I have that information with me, but we can probably get it for you.

Bruce, do you have that information?

Mr. Bruce Scoffield: I don't have the statistics in front of me, but in general, the movement of people coming through the United States is not dissimilar to the broader movement of people coming to Canada. So the most important source countries for refugee claimants overall are reflected within the movement of people coming through the United States.

Mr. Inky Mark: Another thing I want to ask you about is duplicate claims. Do you have any data on the number of people who are actually making double claims, in both countries?

Ms. Joan Atkinson: In both the United States and Canada? No, we don't have precise information on that.

We had a pilot project at Lacolle, where we had access through INS to their “ident” machine, which is their fingerprinting, where we were able to access some data from the American system. We did find in that pilot project that a fairly significant proportion of people had claims in the United States.

Part of the agreement relates to information sharing between the two countries. We are negotiating, in conjunction with this third agreement, a new information sharing agreement with the United States. We have an existing information sharing agreement, but we are negotiating a new one that will include a specific annex on sharing of information on refugee claims.

As you know, in any information sharing agreement where we're sharing private information on individuals, we have to be very cognizant and careful about protecting the privacy of individuals. With refugees you have to be extra careful because of the extra protection needs of legitimate refugees. So we are negotiating a specific annex that will allow us to share information on refugee claimants, and we'll get a much better handle on that sort of information in terms of who's claiming in what country and where they are coming from and so on. We don't really have good information at this point.

Mr. Inky Mark: Well, on that point then, because of such a large number of undocumented claimants turned back to the United States, will you be monitoring what happened to them in the U.S. in terms of their claim?

Ms. Joan Atkinson: The implementation of the agreement will be monitored. In article 8, paragraph 3, we have agreed to review the agreement and its implementation not later than 12 months from its entering into force. The UNHCR will be participating in this review. We will also seek input from NGOs in this review. We will definitely be monitoring through its implementation how it is working. We'll do a review after 12 months and we'll report on that.

Mr. Inky Mark: Okay.

I have a last question. Because the numbers are so high with undocumented...and even though internationally we have interdiction officers, people still get on airplanes and land here to claim as refugees. Because of that, because of our experience, how many officers do we have in the United States who actually do that same kind of work?

À (1000)

Ms. Joan Atkinson: In the United States we need fewer people, since we can deal with the airlines and train the airlines; it's concentrated. That's a big advantage for us. We don't need to have individuals at every single airport in the United States. That would obviously be totally unworkable and likely highly unnecessary.

We also need to recognize that looking at our approach with the United States on dealing with irregular migration and particularly security threats--the very small proportion of the irregular movement that actually poses a threat to Canada or the United States--we prefer to put our resources away from the border and away from the United States and Canada under our multiple border concept.

What we're really trying to do is to work with the United States and our other partners, such as the U.K. and the Dutch government and others, to try to deal with the problem of irregular migration away from source countries and transit countries. We believe it's better to try to interdict improperly documented passengers in Europe, in Asia, and indeed in source countries before they get on planes to come to North America rather than try to prevent them from circulating between Canada and the United States.

Really, the principle of our multiple border concept is to try to push that activity away from Canada and the United States and try to identify areas where we need to do interdiction activity further away.

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

Steve, you had something to add.

Mr. Steve Mahoney: Yes, just a follow-up on Inky's question.

I've seen a couple of statistics here that are different from the ones I thought existed. For example, I was under the impression that 60% of the refugee claimants we get in Canada every year came through the United States. This indicates 34%.

Number two, if 60% of them are undocumented, I was also under the impression that the majority of those who come across from the U.S. have U.S. visas. And if they have U.S. visas, they wouldn't be undocumented.

Ms. Joan Atkinson: I do agree that the statistics can be somewhat confusing. The 34% for 2001 and the 36% for 2002 are all refugee claimants. They come to the land border, and to airports; and the people who are already in Canada claim in-land. So when you look at the total number, 36% of the total number come to us from the United States.

The 60% figure, I believe, comes from all those who claim at ports of entry. So at land borders and airports, 60% of those come from the United States.

The 95% is people at land borders.

Mr. Steve Mahoney: But what about the documentation? Do they have U.S. visas? Certainly all of the 19 terrorists on September 11 had U.S. visas.

Ms. Joan Atkinson: I don't know.

Bruce, do you want to comment on whether we have information on how many actually arrive with U.S. visas?

Mr. Bruce Scoffield: Again, I don't have that precise information with me. But a very large proportion of those who present themselves at land-border ports of entry do not present documentation. However, we often determine subsequently that they did in fact enter the United States with a U.S. visa.

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

With the latitude of the committee, Yvon, Judy, and Anita haven't had an opportunity. And I think we can get everybody else on again.

Yvon.

[Translation]

Mr. Yvon Charbonneau (Anjou—Rivière-des-Prairies, Lib.): I would like to ask you what interest Canada has in being part of such an agreement. I do understand that it is in our general interest to get along with our American neighbours, but setting that aside, what is the advantage for us? What is motivating Canada to sign such an agreement, bearing in mind its tradition of welcoming refugees? What more does that add?

À (1005)

[English]

Ms. Joan Atkinson: I think our objective here is to essentially share the responsibility for refugee protection in North America between Canada and the United States. We both receive significant numbers of individuals who seek protection in our respective countries. We both have the challenge of determining who needs protection. This agreement is meant to share the responsibility for this task, if you will, between the two countries.

I think it's also important to point out that, as Bruce has alluded, we know that people obtain visas to enter the United States in order to claim refugee status in Canada. Part of our objective here is to cut that link between the granting of a visa by the United States and the ability to be able to then immediately come north to the border and claim refugee status.

This has the effect of enhancing the security of the United States and Canada, in trying to manage the flow of irregular migrants. If you cut that link between the ability to enter the United States for the sole purpose of claiming refugee status in Canada, it gives you tools to better manage that particular flow of irregular migrants.

[Translation]

Mr. Yvon Charbonneau: I have a second question. What happens to an individual who has applied for refugee status in the United States but has been turned down and who wants to apply for the status in Canada? Can he try his luck here or is he automatically prevented from doing so?

[English]

Ms. Joan Atkinson: No. If they claimed refugee status in the United States and were refused refugee status there, and then came to Canada to claim refugee status here, unless they fall within one of the exemptions of this agreement, they're not eligible to claim in Canada. They had a chance to claim in the United States. If the United States, through its process, determines that they were not eligible for protection, then the United States will take appropriate action.

[Translation]

Mr. Yvon Charbonneau: This poses a significant problem. That means that we automatically take it for granted that the decisions made in the United States are valid. Even in accordance with Canadian standards, they are deemed to be automatically valid. I feel that this would result in a loss of independent decision-making for the Canadian authorities, a concession that is not desirable.

I have a third question. We are told that the United States is a safe country. However, many people who have undertaken significant studies on this issue have said that the United States has standards that are lower than international standards. We can quote from a study conducted in 1993 by Professor James Hathaway, of the Harvard Law School, a leading expert in issues pertaining to refugees and who works for the University of Michigan. He says that the United States has a troubling relationship with international law and that US Supreme Court jurisprudence is notably out of sync with the rest of the industrialized world because it does not take into account whatsoever the fundamental obligations that have been established by international refugee law. The same professor alleges that in the United States, a person for whom it has been determined that he meets the criteria of refugee status within the meaning of the convention does benefit from the rights set forth in the Refugee Convention.

Do you have better studies that show that this study is incorrect?

[English]

Ms. Joan Atkinson: I would say, first of all, that the whole basis of having a safe third country agreement with any country, in order to comply with our charter and with our obligations under the Geneva Convention and other international conventions, requires that we be assured that the country with which we enter into these agreements has comparable--the same or better--adherence to international legal obligations and has full due process and comparable legal standards in their system. So we would not have entered into negotiations with the United States unless we were assured of that.

We are legislatively required to assure ourselves that the countries with which we enter into these agreements meet those international obligations. It would be contrary to the charter if we were to enter into an agreement that did not have such assurances. We have looked at the international legal obligations of both countries. We have examined the American system and compared it to the Canadian system--and not just ourselves; we have actually called upon legal experts from the United States to help us do that comparison, and we are absolutely satisfied that the American system offers comparable due process and meets or exceeds all the international legal obligations.

Luke, do you want to add to that?

À (1010)

Mr. Luke Morton: I just want to add one point. In the United Kingdom, they also have a safe third system, and they have designated Canada and the United States as safe third countries. They've done this unilaterally--that is, without an agreement.

A legal challenge was brought in the United Kingdom in the case of Salas, and the United States refugee system came under a judicial microscope. The U.K. government, the court, upheld the safe third scheme, saying that the United States complies with its international obligations.

The Vice-Chair (Mr. Jerry Pickard): Do you want a second round, Yvon?

Mr. Yvon Charbonneau: Yes, just a supplementary question to this one.

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

[Translation]

Mr. Yvon Charbonneau: Would Joan be able to provide us with studies conducted by independent Canadian experts? We must refer not only to American experts, as you mentioned, but also to Canadian experts or to recognized international experts who would support your analysis that the two systems are comparable and nearly similar. Are there any experts that support this opinion?

[English]

Ms. Joan Atkinson: We'll see what we can bring to the committee. I understand the concern, and we'll go back and determine what documents we can provide.

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

Ms. Judy Wasylycia-Leis (Winnipeg North Centre, NDP): Thank you very much. I apologize for being late. Unfortunately, the health committee and immigration committee are running concurrently all day today, so I'll be running back and forth.

I'd like to follow up on Yvon's point before I get into the specific questions on the proposed regulations. I think Yvon makes a very important point, for which there is significant evidence, about differences in foreign policies between Canada and the United States--namely, the documented evidence of a pattern in the United States to detain, deport, and deny on a regular basis, as opposed to allowing for due process.

I know that when the minister was asked these questions this summer—particularly in the context of the Supreme Court decision on Singh—he said that he wouldn't have signed this agreement unless he had guarantees from the United States that due process would apply. But it seems to me that we're not in much of a position to be telling the United States what to do, and to expect accountability.

So I think we have a fundamental problem in terms of a mechanism to ensure due process, the rights of appeal, the right to be heard, and the right to be understood in terms of the political situation an individual has been facing in escaping from, say, a right-wing regime in Central America, or South America. These people will come, by land, to the Canadian border, because they know they will be turned down in the United States. The United States does not accept that kind of political repression, as Canada has historically done.

So that's an issue I'll raise generally. If you have some more information that will answer that, great.

My specific questions are on the regulations. As much as I think the agreement is bad and should be scrapped, it seems to me that the regulations make it even worse.

Let me ask about the unaccompanied minor issue—unless you've already answered or dealt with this. The agreement makes the exception for an unaccompanied minor. The regulations go further, and say that the minor be unaccompanied by an adult. So the government is in fact suggesting that we encourage young kids to come to the border in order to get the protection they need. We're not even going to allow someone to be accompanied to the Canadian border by an adult. So that's one question.

Another question is about the other significant exception being family relations in Canada. The agreement talks about the family member qualifying the refugee for an exception just in terms of being “granted lawful status, other than as a visitor”. Yet I understand that the regulations define family members very specifically as citizens, permanent residents, or accepted refugees. So it seems to me that regs go even further in narrowing the possibilities, and making it pretty unlikely that any of these exceptions mean anything. So that's a concern.

My third—

À (1015)

The Vice-Chair (Mr. Jerry Pickard): If you go too far, we're not going to have time for extra questions.

Ms. Judy Wasylycia-Leis: Okay. I'll stop there, and go for a second round.

Ms. Joan Atkinson: There are many points there. Let me try to deal with them as best I can.

First, article 4 is the key in terms of the agreement, where the United States and Canada have agreed that a refugee claimant shall be examined and shall have the opportunity to make their case in either country unless they fall within one of the exemptions. Under article 3 parties shall not return or remove a refugee status claimant referred by either party under the terms of article 4 until an adjudication of the person's refugee status claim has been made. So those are the keys. The United States has agreed that an individual who is sent back from Canada will have the opportunity to be heard in their system. That's a critical point we have to underline here.

We are not talking about two refugee determination systems that are exactly the same. There obviously are differences between the two systems. But when we look, for example, at the relative acceptance rates of our two refugee determination systems, if you take away withdrawals and abandonments, we see that the acceptance rates are actually quite similar. In Canada it's 48%, and in the American system it's around 41%. So the Americans have a system that accepts roughly the same proportion of persons who are claiming protection as the Canadian system. Not that there aren't differences, and there will continue to be differences in the two systems.

In terms of the unaccompanied minor, we wanted to ensure in this agreement that children who are travelling alone are appropriately protected in the system. It was our desire to ensure that unaccompanied minors will be dealt with at the border in a way that meets their best interests, and that's why we have the exemption for the unaccompanied minor. If children are accompanied by an adult, then obviously they're dealt with as a family. If the adult fits into one of the exemptions, then the adult and the child will be allowed to enter Canada and make the refugee claim.

With regard to your last point about family status, there's just one correction. The family exemption applies if you have a family member in Canada who is a resident or citizen or you have a family member who is in the process of claiming refugee status. We don't go so far as to say that person must have been accepted as a refugee. It's enough that they be in the system and be in the process of claiming refugee status. If you arrive and you have a family member who is in the Canadian system, then you're exempted and allowed to go forward in the system under this agreement.

The Vice-Chair (Mr. Jerry Pickard): I think we have time for Anita and for another five-minute round. But you'll have to help me out by sticking to the five minutes, so that everybody will get an opportunity to participate.

Anita.

À (1020)

Ms. Anita Neville (Winnipeg South Centre, Lib.): I have a number of questions.

First, I want to pick up on the unaccompanied minor and family status point. I don't know if I'm missing something. Are we setting up a system of children coming across the border in anticipation of their parents coming once the child is in? That's what's concerning me right now as I hear your answers, Joan.

Let me ask a few questions, and then you can answer all of them.

You've expanded the definition of family member as we know it in the family class. Can you just give me a bit of the rationale as to why you've taken that further?

As well, is there a difference in the profile of the refugee claimant coming in at the airport as opposed to that person coming in across land? Are we likely to see an increase in the airport refugee claims?

In your opening comments you cited a number of provinces, but you did not cite the three prairie provinces. Being somewhat parochial I wondered if there is a reason for that.

Ms. Joan Atkinson: We were very cognizant of the issue you raised when we negotiated the agreement on the potential to have children become a “foothold” so their parents could then follow them. It's the reason for the 18-year threshold. In order for you to fall within the family exemption, the family member in Canada has to be 18 years or older. They must be adults. We will not have the situation of children being sent forward by their parents to get into Canada in order to be able to bring the rest of the family. The family member in Canada has to be 18 years or older and has to be an adult in order to be able to fall within the exemption.

Why did we take a more expansive view of a family in terms of this agreement? I guess because we were looking at it in a very different context. In looking at how we defined family class and family reunification for immigrants in the Immigration Refugee Protection Act and its regulations, of course, we were looking at family sponsorship, family reunification, and definitions across the board.

In this context, we were looking at what makes sense, in keeping with our humanitarian traditions, in terms of the types of exemptions for family reasons that we should be making. In the process of negotiating with the Americans, both countries agreed we should be expansive rather than limiting how we defined family for the purposes of whether someone should be allowed to come forward to make a claim.

I would say we're talking about two different contexts. We weren't attempting to have absolute symmetry between the family class in the Immigration Act regulations and in this particular agreement.

In terms of the profile of refugee claimants who come in at airports, I'm not sure I have any specific information that would indicate whether there's much difference in the profile of the claimants who come in at the land border and those who come from airports. We do expect we will see an increase in refugee claimants coming into Canada via the airports and airlines as opposed to the land border. We expect it would be one of the consequences, as we talked about.

Finally, on provinces, I don't think I would read anything into it specifically. We had invited all of the provinces to comment on the agreement. We had consulted with them. Not all provinces responded specifically. I don't think there's any particular reason why the prairie provinces did not.

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

Lynne.

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

I wanted to know about your pilot project at Lacolle. Is the pilot project still on? How successful has it been?

Ms. Joan Atkinson: No, the pilot project is not still in effect at Lacolle. I think it ran for about a year. We ran into some difficulties in terms of being able to move forward with the project and expand it because of the lack of an information sharing agreement with the United States, basically. We were unable to directly share the information or go beyond what we had shared under the provisions of the existing agreement. We ran into some difficulties in terms of being able to access the ident machine and database because of the American concerns, and I think very legitimate concerns, around information sharing.

So we piloted it but we couldn't proceed with expanding the pilot. We didn't have the proper authorities, if you will, to share information. We are now, as I mentioned, negotiating an information sharing agreement that will then allow us to look at how we share information on refugee claimants. Whether or not we will reinstitute the use of the ident machines is something we need to determine with the Americans.

À (1025)

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

Mr. Steve Mahoney: No, I'll pass.

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

[Translation]

Ms. Madeleine Dalphond-Guiral: Mr. Chairman, I would like us to go back some 30 years in time, to when the Allende regime was overthrown, an overthrow that was desired and aided by the United States, as everyone acknowledges, I believe. I am wondering what would have happened to the many Chileans who travelled north had this agreement and the current regulations been in force at that time. The first country that they would have reached would have been the United States. What would have happened then? I would imagine that the United States would have told them that they were not in any danger whatsoever, since the new regime was good and mindful about protecting everybody. There would have been no appeal process. Nobody can exclude the possibility of such a situation occurring. Could the minister decree that this is a case of public interest, for example, or am I being too kind?

[English]

Ms. Joan Atkinson: Any particular group of individuals in the United States who then come north to the border and claim, would, of course, if they come to the United States and then come to a land border, be part of this agreement and could be turned back unless they're exempted.

Under the public interest provision, we've specified in the regulations how we would implement that. If at some point in the future the minister decided to suspend removals to Chile, for example, then Chilean nationals who came to the United States and then north to the border to claim refugee status in Canada would be exempted from the provisions of this. Otherwise, they would be subject to this agreement.

[Translation]

Ms. Madeleine Dalphond-Guiral: I understand your reasoning, but unless there is a saviour that is able to stand up to the United States—that may exist— how, in your opinion, would Canada ever be able to go totally against the American position and decide not to send back anybody to Chile? I fear that we will not be able to do such a thing. This is a very hypothetical idea which is absolutely unrealistic.

[English]

Ms. Joan Atkinson: The basis of the agreement is that if individuals, from whatever country, are in need of protection, and they're in the United States first, that's where they should make their claim. If they are in need of protection and they come directly to Canada, and they don't go via the United States, then obviously we would hear their claim for protection.

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

[Translation]

Ms. Madeleine Dalphond-Guiral: May I ask another question?

À (1030)

[English]

The Vice-Chair (Mr. Jerry Pickard): Go ahead.

[Translation]

Ms. Madeleine Dalphond-Guiral: Thank you.

As you are aware, here in Canada, gender-based persecution is recognized as legitimate grounds for requesting refugee status. In the United States, on the other hand, the situation is not quite the same. Claimants from this category, be they male or female, whose cases are dismissed in the United States cannot appeal the decision, even if it is a well-known fact that in their country of origin, some women face the risk of being stoned if they have sexual relations. Is that right? It's a different story for men, but we won't go into that...

So, what should we do about this issue? It is an important one. With regard to the Immigration and Refugee Protection Act, we have repeatedly stressed the importance of precision. It seems to me that we have here an agreement that has moved away from that point of view.

[English]

Ms. Joan Atkinson: As I said, the two systems meet all the same legal safeguards and international obligations, but they're not completely the same. As you know, Canada has been a world leader in terms of gender persecution, but it's not correct to say that the United States does not have jurisprudence and guidelines around dealing with issues of gender persecution. In fact, the American guidelines on gender persecution are very much based on the Canadian guidelines, so it is an area of protection. They have made some specific guidelines and they are implementing specific guidelines on that. Again, I don't think they're exactly the same, but gender persecution is one of the areas that the United States has done some work on. They do apply guidelines that are somewhat similar to Canada's.

Mr. Luke Morton: I would add to this that in the U.S. courts as well they have recognized gender persecution as the basis for being in a particular social group. With issues such as female genital mutilation, gang rape, there is jurisprudence that these kinds of cases have been accepted.

The one issue where there is not a complete overlap is in regard to domestic abuse and that is an issue throughout the world. It's quite a contentious issue.

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

Inky.

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

On that note, could you provide the committee with data on country of origin and the breakdown so we have an idea of where they're coming from?

Ms. Joan Atkinson: Yes, we will.

Mr. Inky Mark: Following that question, what's the data on going the other direction, from Canada to the United States, in terms of who comes here, the numbers, their country of origin, the status, also in terms of documented and undocumented, so we have a better idea of who's here trying to go the other direction? I don't think it's very clear to any of us as well.

Ms. Joan Atkinson: It's a little bit more difficult for me to provide information on that, because it's really the United States' data. I don't think we've gotten specific data from the United States on how many are coming the other way and what their nationalities are, so I'm not sure we're going to be able to provide that for you, unfortunately.

Mr. Inky Mark: What's the process that you establish in terms of reporting to the UNHCR in terms of what you just said to me about the data coming this way, or communication? What's the process that would be established for the new way of dealing with refugees?

Ms. Joan Atkinson: That will be under the provisions of the information sharing agreement that I mentioned and the annex on sharing of information on refugee claims. Both countries will have much better data under the provisions on information sharing, and we will be able to report on numbers going both ways, on source countries, and so on.

Bruce, did you want to add to that?

Mr. Bruce Scoffield: I would just add that there is a commitment made by both governments to undertake a review not more than 12 months after the agreement comes into force, and that UNHCR will be part of that review process. As well, there is a commitment to seek input from non-governmental organizations.

As part of that review, the two governments will each be monitoring how the agreement is being applied, interpreted, and understood. We'll be receiving feedback from stakeholders in our own countries, of course, and we will remain in constant consultation with the UNHCR so that, when we come together for that review, we'll have a complete picture of how the agreement has been implemented and what the effect has been.

Mr. Inky Mark: So UNHCR will have constant data, continuously.

Mr. Bruce Scoffield: UNHCR will, as it does now, have complete access to all border points where these decisions are being made, and will be able to observe and have an understanding of how the agreement is being implemented. In setting up our own implementation procedures, of course, we'll be developing the IT systems that will allow us to track the decision-making process and have data on how many cases are dealt with under this agreement, what exceptions are applied for, and what the outcomes are.

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

Yvon.

[Translation]

Mr. Yvon Charbonneau: I have two questions. The first concerns what appears to be a side agreement. Could you elaborate on the scope of this side agreement? From what I understand, the United States reserves the right to send us 200 people. Are we talking here about 200 people per year or about 200 people in total? Do we have a say in the eligibility of these people in terms of Canadian standards?

À (1035)

[English]

Ms. Joan Atkinson: No, it is absolutely a reciprocal agreement. All of the provisions in this agreement are obviously working both ways.

[Translation]

Mr. Yvon Charbonneau: We can send them 200 and they can send us 200, without right of review.

[English]

Mr. Bruce Scoffield: Perhaps I could just clarify the intent.

In the agreement, there is a commitment by both governments to assist each other in the resettlement of persons from overseas who are in need of protection. That allows either government to request the other to cooperate in the resettlement of identified groups.

In our discussions with the U.S., the U.S. has already gone a little bit further in developing their thinking on how to make use of that agreement, and has asked us whether we would be prepared to accept the referral of up to 200 persons who are outside of Canada or the United States, who are overseas, who have been identified as being refugees in need of protection, and to whom the U.S. needs assistance in providing that resettlement opportunity either because there are too many for them to deal with or they think it's perhaps more appropriate that Canada look at those cases. But it's very clear that existing Canadian criteria and standards for the selection of persons seeking resettlement will apply, and that all decisions will be made by Canadian officials, based on Canadian law and policy.

Ms. Joan Atkinson: I would also add that this happens in an informal way to some extent now. On occasion, we will receive requests from the United States or other countries dealing with populations of individuals who are in need of protection when resettlement is the option and when it makes sense because there's a family connection in Canada or because there's a community connection in Canada, or because it makes sense for an individual to be resettled in Canada.

This is not something that is brand new. We do this now, informally, with the United States and other countries that are resettlement countries.

[Translation]

Mr. Yvon Charbonneau: Does that mean that the agreement is truly reciprocal, that Canada can ask the same thing of the United States? Is it 200 per year or 200 once and for all?

[English]

Ms. Joan Atkinson: There are 200 per year.

Mr. Yvon Charbonneau: Per year?

[Translation]

Ms. Joan Atkinson: It is 200 per year.

Mr. Yvon Charbonneau: And there is real reciprocity.

[English]

Mr. Bruce Scoffield: Yes, it is quite true that Canada has the ability to also request that the U.S. assist in the resettlement of refugees. It's a reciprocal undertaking by both governments.

À (1040)

Mr. Yvon Charbonneau: This is my final question, Mr. Chair.

[Translation]

A previous report of the Immigration Committee provided special measures for French speakers who, on arrival at a point of entry, invoked the question of language. This does not appear in the new regulations. Have you studied the situation and deemed that it is not appropriate? What was your reasoning for not including it, given that it was recommended by the committee?

[English]

Mr. Bruce Scoffield: I believe it was in 1996 that the committee held hearings on an earlier proposed agreement between the two countries. A number of recommendations were made with respect to application of the agreement, for it to take into consideration issues other than protection needs.

That agreement was a much broader agreement than the one we're looking at today. It applied to all persons who arrived in Canada regardless of where they presented their claims, and it would have had a much more significant impact on the movement of persons to Canada. There were questions raised before the committee at that time regarding integration issues and regarding essentially the question of allowing choice to refugee claimants based on those integration concerns.

In the agreement as negotiated, the two parties chose to focus on access to a protection determination, and they chose to limit exceptions to the general principle that one should seek protection at the first effective opportunity, to questions of family unity, and to the protection of the interests of unaccompanied minors. They retained the right, of course, at their own discretion, to take responsibility for any other case. The government has, in its draft regulations, proposed to use that discretion in order to address issues around people who would face the death penalty or who would benefit from a moratorium on removals.

So the government has chosen not to address integration issues, preferring instead to keep the focus on access to a protection decision rather than bringing in these other issues, which relate more properly to immigration concerns rather than protection concerns.

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

Ms. Judy Wasylycia-Leis: I'd like to follow up on Yvon's questioning, because I think this issue of the side deal is very important. The officials are suggesting there's a reciprocal arrangement here. To me it's hard to understand what's reciprocal about it when in fact this appears to be the quid pro quo for this agreement finally happening.

We all know this agreement's been talked about for years. The U.S. opposed it in the past. Suddenly it's moving forward rapidly, and lo and behold we learn that there is a secret side deal using article 9 for this government, our government, to agree to take at least 200 undesirables from the United States. The pattern has been that the U.S. has coerced other countries to do something similar. The Latin American countries were pressured to accept legitimate refugees that the U.S. didn't want for political reasons. Now we're being asked to do the same.

Clearly we're talking about people who are arrested on the high seas. It's like the case in Australia where the U.S. just doesn't want to touch them, doesn't want to deal with them. They want us to take them on. We're talking about prisoners in Guantanamo Bay.

I think we have to really try to get to the bottom of this. If the officials can't answer today, we should have some accountability from the minister on Thursday as to what number was agreed to, for what reasons, and under what circumstances we would be turning to the United States to say please resettle these individuals.

Our traditions are different. Our approaches are different. It seems to me that through this side deal--this agreement, generally--not only are we going to be possibly sending back every year something like, if you use the stats, 7,000 to 8,000 refugees because of this safe third deal; we're also going to be taking at least 200 people. That draws on our limited numbers already in terms of resettlement. This deal is going to impact on us in numerous ways and not for the better. That's one issue.

The next is back to the issue of the unaccompanied child. I haven't heard an explanation yet how this is going to work, other than to force children into absolutely risky, unsafe situations, because the exception is clear. An exception is made for a claimant who has not attained the age of 18 and is not accompanied by a person who has attained the age of 18. So because refugees are desperate, and people will do desperate things to get to a safe place--a place that they think is safe--we're going to encourage them to send their kids on, not knowing if they'll ever see each other again, because as you said there is no guarantee that the family will be reunited with that child in Canada.

It's like the underground railway in the days of slavery. We're basically saying that families are going to have to make a tough decision to send their kids on, because they want a better life, a safe life, and we don't have any way to ensure that the family can be together. We still have to hear some more about how this is going to work and why it's there.

A third area of questioning has to do with the whole question of due process. We know from the regs that the immigration officer's decision is final. By some accounts, that means the access to judicial review or appeal is even below U.S. standards. I would like to know whether you can confirm that the Americans--even the Americans--have raised concerns about these regulations and our denial of an appeal.

The final question is pertaining to all of the exceptions and how they will work and the fact that these decisions have to be made quickly at the border. What mechanism will be in place to correct any mistakes or inappropriate judgment calls that are made? They will be inevitable, I think, in terms of this onerous, bureaucratic, hard-to-understand agreement. What's the escape hatch here for hasty judgments and mistakes in terms of people's lives?

À (1045)

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

Ms. Judy Wasylycia-Leis: I'm sorry.

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

Ms. Joan Atkinson: Let me try to take each of the issues in turn.

There's no secret side deal. Article 9 is article 9. It says both countries will endeavour to assist the other with resettlement. We have talked about the number 200, and that is out there publicly, both countries have talked about 200. It is reciprocal. Everything in the agreement, as we said, is reciprocal. I go back to the point that this is not necessarily something new. There are a number of countries out there that resettle refugees, the United States, Australia, some of the Scandinavian countries, France. At various points in their history various countries have offered resettlement to various groups of refugees.

When you're dealing with a refugee population, let's say in a refugee camp, in some part of the world, when we interview individuals, when they're referred to us by the UNHCR, sometimes information comes up such that it would make sense for them to go to the United States rather than Canada, because there are family members in the United States, because there are connections with the United States. What often happens is that the UNHCR, which is the primary referral organization, determines this sort of information in advance of referring cases to us, and they try to ensure that in referring cases to the United States, Canada, Australia, or other resettlement countries, they take that into account. But sometimes this information doesn't become apparent until we actually interview the family. Then we can determine that perhaps it makes more sense for them to go to the United States, and then we would approach our American colleagues and determine whether or not they would be interested in having the case referred to them.

So this is what we're talking about. We're talking about a situation where the Americans have determined that in this particular case it makes more sense. As Bruce said, in each and every case Canadian officers will determine whether or not the individuals meet Canadian requirements. This is not going to overburden us or push other people out of the way, because those cases will be evaluated against Canadian refugee resettlement and humanitarian class resettlement criteria. If they don't meet the criteria, obviously, we will not accept them.

As to unaccompanied minors, one of the tragedies of refugee movement is that Canada, the United States, and other countries in Europe receive them. It is an area where we must be exceptionally careful in ensuring that we're protecting the best interest of the child. The United Nations High Commissioner for Refugees is very supportive of the exemption in the agreement for unaccompanied minors as a way of ensuring that when unaccompanied children arrive at the border, there's no back and forth, but they're dealt with expeditiously, fairly, and taking into account the best interest of the child.

The problem of unaccompanied minors is an issue, I absolutely agree, one we grapple with, as do other countries. This particular agreement will not have an impact one way or the other on the number of unaccompanied minors. It remains an issue we need to deal with in a very sensitive and careful fashion, and we will continue to do so. That's why the exemption is there, to make sure these children, when they arrive at the border, are dealt with in a way that protects their best interest.

As to due process, every decision made under this agreement is subject to judicial review. As with any other decision made under the Immigration Act and regulations, decisions under this agreement are made by immigration officers determining eligibility. Their decisions can be reviewed by the Federal Court. The decisions are subject to judicial review.

Mr. Luke Morton: I would add that although not required by law, administratively, a system will be put in place where two immigration officers will actually review the file. The first immigration officer will make a recommendation to a senior immigration officer. So there'll be two sets of eyes looking at it.

À (1050)

Ms. Joan Atkinson: As an extra safeguard.

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

Steve.

Mr. Steve Mahoney: Briefly, why was it done as a side deal? Why wasn't it part of the agreement, in the regulations, and clear-cut?

Ms. Joan Atkinson: It's not in the regulations because it's more of an administrative process, if you will. We, in negotiating article 9, wanting to put some parameters around it, said 200, but that's administrative, it's not something we need to put in regulations. The number could change. If both sides agree to talk about 100 or 150 or 300, that is obviously something we can do. And we didn't feel it was necessary to articulate the criteria in the regulations, because the criteria are already in our regulations. Those are the criteria that relate to convention refugees seeking resettlement and the humanitarian classes, the protected person seeking resettlement in Canada. So those are the criteria we'll use to determine whether or not we'll accept cases referred to us by the United States.

Mr. Steve Mahoney: I guess when something goes in the regs it's published, at least in this country. In the States I understand they don't publish until after they've done the deal, until they've signed the agreement. Then they put out the information. But we do it in advance. Is that correct?

Ms. Joan Atkinson: The United States, in fact even before we did, put the draft agreement on their website. Once we had a draft agreement that was initialled by both negotiating teams, they put it out on the website. Their process--

Mr. Steve Mahoney: Was the side deal on the website?

Ms. Joan Atkinson: No, the side deal--

Mr. Steve Mahoney: That's my concern, that when you call it a side deal it's as if it's hidden. It's obviously not; it's come out here today.

I think your explanations are very legitimate. If there is someone the Americans determine is a legitimate refugee by their standards but who happens to have family in Canada, or for any number of reasons, it would be helpful, I believe, if those reasons were itemized, if we understood what they were. If it's published and everyone knows about it, then it's clearer.

The other thing is there's a perception--as is always the case around this place--that it's a one-way deal. It's reciprocal, you've told us, and at least that's good news. But I wasn't aware it was reciprocal. When they see “side deal”, those people get really suspicious.

Ms. Joan Atkinson: Article 9 does say “both parties”, so the reciprocity is embedded in article 9 itself. It says “both parties shall, upon request, endeavour to assist the other....” Concerning the side deal, or whatever, what I'm saying is we have in our existing regulations provisions for referral of persons needing resettlement to Canada. It's in our existing regulations, and that's what article 9 talks about, the Americans referring cases to Canada for resettlement.

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

Just before you get away, I think everybody should know we're meeting in room 209 this afternoon. There has been a vote called for 5:15 p.m. We're normally scheduled this afternoon until six o'clock, but we'll probably try to wrap it up by 5:30.

Mr. Steve Mahoney: Just as an update for you, the vote has been put off until tomorrow after question period.

The Vice-Chair (Mr. Jerry Pickard): Oh, so we're okay on that side of it.

One other thing I think everybody should be thinking about--just before you get away--is future business. That's still up in the air, and I think everybody should give some thought to it at a very early time in the next meeting. I'm sorry to interrupt, but I wanted to make sure everybody had that information.

We're back to Madeleine.

[Translation]

Ms. Madeleine Dalphond-Guiral: In your presentation, you mentioned that consultations were held with the Office of the United Nations High Commissioner for Refugees. You have not elaborated on the UNHCR 's concerns, but everybody knows that they do have concerns, particularly regarding the high risk of an increase in illegal immigration. Some people become illegal immigrants for purely economic reasons, but in the instance of refugees whose claims are dismissed in the United States, becoming an illegal immigrant could become a sort of last resort.

Are we going to find ourselves in a situation where there is an illegal immigrant hunt at the Canadian border, a no man's land? We are talking about a long border here. What are we going to do? It is all very well to try to arrange agreements so that everything will be perfect in the best possible world, but we cannot ignore the consequences of what we are doing; we are talking about people, like ourselves, who have a life to live and want things to be liveable for their family, for their children. Where are we going with this? Are we going to have sniffer dogs to smell those crossing the border? I'd like to hear your comments on that.

À (1055)

[English]

Ms. Joan Atkinson: As I mentioned in my opening presentation, we acknowledge that people will try to find other ways of getting to Canada to claim refugee status. They will probably try to avoid going through the United States and come directly, if that's possible. As for smuggling across the Canada-U.S. border, as I said it's very difficult for us to predict how much that will happen and whether there will be increases.

What I can say is that in terms of smuggling we are part of the RCMP border patrol/U.S. Immigration/U.S. Customs/Canada Customs integrated border enforcement teams. One of the mandates of the integrated border enforcement teams is to share information intelligence and work together to try to prevent smuggling of any kind across the borders--smuggling of contraband, smuggling of people, and so on. We have reinforced, if you will, our ability and reinforced our tools and our capacity to deal with the problem of smuggling across the Canada-U.S. border.

Again, as part of the monitoring we do of the implementation of the agreement and the work we do in partnership with our law enforcement partners and U.S. Immigration, we'll obviously be paying particular attention to that particular issue of smuggling across the border.

[Translation]

Ms. Madeleine Dalphond-Guiral: It seems that this all wishful thinking.

[English]

The Vice-Chair (Mr. Jerry Pickard): Judy, go ahead.

Ms. Judy Wasylycia-Leis: I know we only have two minutes left in the committee meeting, but before Steve goes I wanted to tell him that we're not inherently suspicious on this side, although there's probably good reason to be so.

Mr. Steve Mahoney: That was generic, not personal.

Ms. Judy Wasylycia-Leis: But in terms of this side deal, our suspicions were aroused by the fact that it was the minister himself this summer--I think at the end of June or July--who talked about this side deal, threw out the number 200, and actually bragged a bit about having been talked down from a higher demand or a higher number. So there are good reasons why we have to ask questions, and good reasons why, as you would point out, this should be spelled out in the regulations or in the agreement itself. So anything further on that would be useful.

The other issue is about the children again. I don't think any of us are suggesting we take this exception out of the agreement. What we're saying is that it points to the difficulty of having such an agreement in the first place. If all of these kinds of situations are going to be created, maybe we should rethink this side deal generally. Given the lack of success Canada has had in terms of dealing with the United States on racial profiling and the questioning of Canadians who are citizens, as well as landed immigrants, perhaps we should reconsider the wisdom of going down this path and engaging in a deal where there isn't mutual interest and a give and take in a reciprocal kind of relationship.

My final question would be on the--

The Vice-Chair (Mr. Jerry Pickard): Judy, can you just hold it there?

Ms. Judy Wasylycia-Leis: Sure.

The Vice-Chair (Mr. Jerry Pickard): I'm going to ask if I can get one question at a time, and that way we'll keep the times in line. Thank you.

Ms. Joan Atkinson: I would respond by saying it is reciprocal. On your last point about how we can ensure reciprocity, the United States has agreed to be reciprocal. Everything in this agreement applies on both sides, for instance, article 4, in terms of the exemption for unaccompanied minors. It's all reciprocal based on what the two countries have agreed to do.

I don't think I would necessarily agree with the point that this agreement will increase the number of unaccompanied minors. As we said, we were very cognizant of the problem of having an agreement that would attract unaccompanied minors so that they could be the foothold in Canada to bring the rest of the family. That's precisely one of the reasons why we put the threshold for the family member exemption at 18. So it's only, again, if there are adult family members in Canada that you are exempt.

Unaccompanied minors is an issue. We deal with it in the refugee context outside of the safe third country agreement. We have unaccompanied minors who arrive in Canada on planes from many different countries. We continue to work with our partners to try to deal with that issue. I don't think this agreement has an impact one way or the other.

Á (1100)

Mr. Bruce Scoffield: I'd like to add for the committee's benefit that the minister and the department have committed to consulting with stakeholders in the NGO community in the development of operational procedures. A first meeting on that subject is scheduled for the end of this month in Quebec. There will be subsequent follow-up meetings as well. We'll certainly be looking to benefit from the experience of service providers who work with children to help us to develop those operational procedures.

Ms. Judy Wasylycia-Leis: To get back to the children, you could end up, could you not, with a situation where a family, out of desperation to get to Canada and with no relatives in Canada, sends a young child of six, seven, or eight, to the border unaccompanied and with any luck that person is not put at risk and is then allowed into Canada?

The child doesn't even have a hope of being reunited with family for another ten years or so until he turns 18. Families will do this. We know this. They will put their kids first. We're actually creating a whole new set of problems because of this deal, not because of the exception but because of this agreement.

It seems to me there has to be another approach. If the objective is partly to deal with backlog, and partly a response to September 11, and whatever else, it seems to me that with all the bureaucracy you need just to sort out the exceptions and to deal with this at the border, you're cutting off your nose to spite your face. It doesn't make any sense. There's surely another way to deal with backlog and to allow for due process and maintain our traditions in this area.

Ms. Joan Atkinson: The problem you describe with unaccompanied minors exists now, without a safe third country agreement. It happens in other countries as well. The only other thing I would add is that the age 18 threshold applies in particular to those people who are in the process of claiming status. Again, we've tried to put some provisions in the agreement to try to prevent to the extent we can people sending their children forward in the hope that they will be able to follow quickly after that child.

The Vice-Chair (Mr. Jerry Pickard): Thank you very much, Joan, Bruce, and Luke. I think you have given us good insight into the safe third country agreement. We very much appreciate the information brought forward today.

We will call it a day. We'll meet this afternoon at 3:30, folks.

The meeting is adjourned.