Finance Committee on May 12th, 2008

[Paul Crête, Bloc, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

You say that the best solution would be to balance the two, in other words, establish a reserve of $10 billion to $15 billion, which would avoid the erratic effect on premium rates, maintain the benefit rate, and see to it that the money only be used for the employment insurance plan.

[Michel Bédard]

Precisely.

[Paul Crête, Bloc, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Mr. Waldman, do you have any comment to make on that?

[Lorne Waldman]

I'd love to, but I'm not an expert. I just find it very interesting. Again, it highlights my concern that there are so many complex issues being put into one bill.

[Paul Crête, Bloc, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

I agree with you: immigration should not have been part of this bill.

Mr. Cunningham, next weekend, when the Canada-U.S. Interparliamentary Group meets, we will discuss the entire situation, more particularly issues related to the border. I will certainly raise your concerns related to the Americans when we discuss the issue.

Could you give us more details on that? What would be the consequences if Canada were to take strong action to eliminate the production of illegal cigarettes on the American side?

[Rob Cunningham]

I would say that 90% of all contraband cigarettes in Canada come from plants on the American side of Akwesasne. These plants, with the exception of one, do not have an American federal permit. The fact remains that the products of these plants end up on the Canadian market. It is thus up to the United States federal government to fight this problem. It is in its interest to do so, but we must persevere. I am very pleased to learn that this question will be raised next week.

The Americans must realize that this is a matter of public safety. When they return to the United States, the smugglers transport drugs, firearms, and sometimes even people. Of all places along the Canada-U.S. border, it is the most vulnerable. On the Canadian side, the Mohawk Council of Akwesasne has given its political support to the enforcement of the laws and is working with the RCMP. It is different from several other aboriginal territories in this regard. So on the Canadian side, things are working fairly well.

[The Chair, Conservative, Rob Merrifield]

Thank you very much.

I would like to let Monsieur Crête know that we have already put that on the agenda for next week in Santa Fe, so it will be dealt with. Thank you very much.

We will now move on to Mr. Menzies.

[Ted Menzies, Conservative, Macleod, AB]

Thank you, Mr. Chair. I appreciate that we're short of time, so I'll share my questioning time with Mr. Dykstra.

Thank you to our witnesses.

Mr. Cunningham, I realize the cause; I'm completely supportive of your association. You do some great work.

As my first question, how easy was it for you to acquire those exhibits that you brought here? I'm assuming they're not samples for us.

[Rob Cunningham]

You're right. They're examples of cigarettes I've personally purchased on various territories: Tyendinaga, near Belleville; Kahnawake, near Montreal; or on the American side of Akwesasne.

The products sold in Canada do not have the picture-based health warnings required by law in Canada. They do not comply with the ignition propensity standard for fire safety and flammability, pursuant to Mr. McKay's bill, and they are very cheap, perhaps $6 for a carton of 200 cigarettes, compared with the legal price of $50 to $70. It's a massive problem.

They're extremely easy to acquire. Non-natives are abusing the exemption by going on reserve, and the products intended for the reserve are being diverted off reserve. It's very easy; people can have them delivered to their workplace or to their home.

[Ted Menzies, Conservative, Macleod, AB]

It's very troubling, and I appreciate your bringing that to us--not the products but that awareness.

A colleague of mine from Calgary was sharing with me just last night on the plane how much of this is getting through into Alberta. Our tax regime in Alberta, as you know, is far higher than anywhere else, so there are more profits to be reaped in Alberta. They seem to be making it all the way out the Trans-Canada Highway into Alberta and, I would assume, all the way to British Columbia.

How do we stop this? We've put some actions in this budget implementation bill. What more do we do?

[Rob Cunningham]

In Alberta and British Columbia there is some contraband, but it's comparatively minimal when we look at Ontario and Quebec.

One of the reasons for this is that there has not been a history of acceptance of illegal sales to non-natives on reserves. In British Columbia, for example, an on-reserve retailer started to sell contraband of this nature and was shut down by the RCMP with the support of the first nations government. So we don't have the same problems in the west, in Alberta and B.C.

What more can we do? We need a comprehensive strategy. There is a role for provincial governments as well, which I have not touched on, but there is a series of recommendations in my introductory remarks of measures that are not yet implemented, including available measures that do not require on-reserve enforcement.

The measures that have been announced are positive, but there are significant additional measures that are also available for implementation.

[Ted Menzies, Conservative, Macleod, AB]

Okay.

I'll turn it over to Mr. Dykstra. Thank you.

[Rick Dykstra, Conservative, St. Catharines, ON]

Thanks.

Lorne, I just have one question. It pertains to the word “deceit”--a word used by the person who was sitting in the chair before you--in terms of moving this forward. I didn't hear you use that word, so I would like to at least take a little bit of direction from you.

You made a comment about the minister potentially making a decision on July 2 that couldn't be pursued, or at least asked about, until Parliament resumed the following September or October. While ministers are questioned on decisions from time to time in the House of Commons, I do pause and reflect upon that, because it suggests to me that....

I actually asked the ADM who came in to respond to a number of these questions, after the minister had been here, about the type of latitude you're suggesting. It borders upon the minister actually doing something illegal.

When I asked the ministry about this, they gave a pretty detailed response. First of all, there's the annual level exercise, which the Government of Canada goes through each and every year. It's then published. Any decision has to be consistent with the objectives in the Immigration and Refugee Protection Act. It also has to be consistent with the Canadian Charter of Rights and Freedoms--everything we do basically has to be consistent with that charter--and it explicitly prohibits any form of discrimination.

So I want to be clear that what you're suggesting isn't that the minister is actually going to do something that goes against the act or in fact against the charter. That is what you're suggesting, in a way, because you're saying she has these sweeping new powers. That actually isn't the case when you go through the act, because the minister has some latitude as we speak now.

I want to be clear that you're not suggesting she would actually do anything untoward or illegal, because she wouldn't be allowed to do that in the first place, regardless of whether or not she had the power to do so.

[Lorne Waldman]

Let's separate this out. I'll answer by sections.

First of all, let's be clear: unless you put an amendment into the act, which you could easily do--you could put something in saying nothing in this provision allows the minister to issue an instruction with respect to an individual applicant--the wording of the legislation does allow the minister to make a decision with respect to an individual applicant. There's no doubt.

As I've said, there was a case in the Federal Court called Cha, where one of my colleagues relied upon something that a minister had said when the current IRPA was enacted in 2002. The Federal Court said, “We always consider what the minister says, but at the end of the day we look at what the legislation says, and that's what we interpret.”

[Rick Dykstra, Conservative, St. Catharines, ON]

But my question specifically is were you suggesting...and I'm not trying to corner you or anything; I just want to get a straight answer from you. What I took from your comment was that the minister would, in fact, make a decision that goes against the Charter of Rights and Freedoms.

[Lorne Waldman]

With respect to individuals, she could make a decision, and as long as it didn't result in sending someone back to torture it wouldn't be inconsistent with the charter, but it would allow her to make a decision with respect to an individual applicant.

With respect to classes or categories of applicant, it's interesting that you invoke the charter, because a lot of these applicants are outside of Canada. Indeed, the Federal Court has said that with respect to immigration matters, the charter doesn't apply to applicants outside of Canada. So the charter wouldn't necessarily be a remedy for someone if the minister issued an instruction outside of Canada.

[Rick Dykstra, Conservative, St. Catharines, ON]

The refugee may not be under the charter, but certainly the minister is.

[Lorne Waldman]

Well, the minister, when she issues an instruction--

[Rick Dykstra, Conservative, St. Catharines, ON]

Sir, the minister is a Canadian, so the minister would be bound by the charter in terms of her decision-making process.

[Lorne Waldman]

Well, if the minister issues an instruction with respect to applications outside of Canada, the applicants outside of Canada can't invoke the charter to challenge the minister with respect to those applications. That's the point.

The long and the short of it is, if you talk about the objectives of the act.... Of course, we all know that there are very many different objectives of the act. The minister could issue an instruction instructing the visa officers to not process applications from Quebec, but to process applications from British Columbia, because there's an economic downturn or there's an acute labour shortage there. It would be consistent with the act, but it wouldn't be--

[Rick Dykstra, Conservative, St. Catharines, ON]

Mr. Waldman, all I'm suggesting is that it wouldn't hurt the credibility of your argument if you actually gave some credibility to the individual, rather than suggest that they're going to move in a negative direction rather than directly according to the legislation.

[Lorne Waldman]

Well, the problem with--

[The Chair, Conservative, Rob Merrifield]

Sorry, Mr. Waldman, we'll leave it at that. We're cutting into our last questioner's time, and I don't think he'd appreciate that.

Mr. Mulcair, the floor is yours.

[Thomas Mulcair, NDP, Outremont, QC]

Mr. Chairman, it would only be polite to allow Mr. Waldman to complete his testimony.

[Lorne Waldman]

The only point I want to make is that the concern we all have here is about giving the minister such broad, unfettered discretion. In our view it's not acceptable. The minister should be accountable to Parliament. There should be pre-publication, pre-debate, be it an instruction or a regulation. That's the point here--nothing more, nothing less. When you give the ministers unfettered discretion in immigration, we've seen in the past that it's been abused in many different circumstances. Obviously we have a concern about that.