Citizenship and Immigration Committee on Sept. 26th, 2012

[The Chair, Conservative, David Tilson]

You're a tad late, but I'm very generous today following my re-election.

We will have a recorded vote, Madam Clerk.

(Motion negatived: nays 6; yeas 5)

Ms. Sims, you have the floor.

[Jinny Sims, NDP, Newton—North Delta, BC]

I would like to move a motion that we not hear the witnesses from Canadian Immigration Report today until committee members have had an opportunity to take a look at the site and make an assessment.

[The Chair, Conservative, David Tilson]

Is there debate?

Go ahead, Mr. Dykstra.

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

What's proposed is a difficult one. We're now getting into the discussion of individuals, and if we're going to do that, I would suggest that we go in camera, because I'm not prepared to debate individuals' backgrounds in public. It's completely unfair to them.

[Jinny Sims, NDP, Newton—North Delta, BC]

I'm talking about an organization, not an individual.

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

The organization is run by two individuals who are going to appear here as witnesses. If we're going to get into this, we're going to do it in camera. We can't do it outside.

[Jinny Sims, NDP, Newton—North Delta, BC]

Can I open on my motion?

[The Chair, Conservative, David Tilson]

There is a motion to go in camera.

Mr. Menegakis—

[A voice]

No. No—

[The Chair, Conservative, David Tilson]

All those in favour?

(Motion agreed to)

It's carried.

We're going to go into in camera for a few moments, ladies and gentlemen.

I don't know how long this will be, but the clerk will come and fetch you when it's over.

Thank you. We'll suspend for a moment.

[Proceedings continue in camera]

[Public proceedings resume]

[The Chair, Conservative, David Tilson]

This is the Standing Committee on Citizenship and Immigration, meeting number 50. The orders of the day, pursuant to Standing Order 108(2), are the study "Standing on Guard for Thee: Ensuring that Canada's Immigration System is Secure".

For the record, most people know that representatives of the committee, in the context of this study on security, visited detention centres in Vancouver, Laval, and Rexdale, which were low risk, and also visited one high-risk detention centre.

We also visited the Immigration and Refugee Board. I expect that these issues will be debated in the report when we're ready to present the report to the House of Commons.

We have two witnesses before us today. On video conference from Toronto, we have Mr. Lorne Waldman, who is a partner in Lorne Waldman and Associates.

Good afternoon to you, sir. Sorry to keep you waiting.

[Lorne Waldman, Partner, Lorne Waldman and Associates, As an Individual]

Good afternoon.

[The Chair, Conservative, David Tilson]

We also have Nathalie Des Rosiers, who is the general counsel of the Canadian Civil Liberties Association. Good afternoon to you.

You each will have up to 10 minutes to make a presentation to the committee, and then committee members will ask questions.

This committee will end at 5:30.

Ms. Des Rosiers, you have the floor.

[Nathalie Des Rosiers, General Counsel, Canadian Civil Liberties Association]

Thank you, Mr. Chair.

The Canadian Civil Liberties Association wants to thank the committee for inviting us.

I will begin my remarks in French and will then continue in English.

The Canadian Civil Liberties Association is a non-profit, non-partisan organization that was founded in 1964 to protect civil rights and freedoms in Canada. It provides education, representation and intervention programs to decision-making bodies like this one and to courts. It mainly works with volunteers and lawyers across Canada.

My comments will focus on three issues that were raised in response to your report.

I would like to begin by discussing the need to set up an independent accountability regime for the Canada Border Services Agency. I will then talk about the thorny and divisive issue that is the treatment of individuals suspected to have committed war crimes or crimes against humanity. In conclusion, I will quickly go over certain aspects of the security clearance regime.

I want to begin by specifying that the association is always interested in the protection of procedural justice standards with a view to ensuring that people are treated fairly across Canada. The Border Services Agency is being given more and more constraining powers. However, the agency's supervision system is something of an anomaly in Canada. The Canadian Security Intelligence Service and the Royal Canadian Mounted Police have an oversight regime. Of course, I want to highlight the efforts being invested by the government—and this issue has been considered by the House—to improve the RCMP's oversight regime. However, the Border Services Agency has no such regime in place. There is an internal complaint process, but that is insufficient in a context where increasingly constraining powers are being used.

In a democracy, increased powers or discretion should automatically be paired with a certain monitoring oversight. It is important to see that as part of the effort to increase the confidence of Canadians in the border regime.

I'll come back later with examples to show how necessary this might be, but in short, there is a gap in our accountability framework. CSIS has independent supervision, and the RCMP will have an even better one, but CBSA does not. Many people call us; we have encouraged them to use the internal mechanism for complaints, and it has not been satisfactory.

In our view it would just be part of the regime of increasing powers at the border to ensure that indeed there is some accountability framework. We are not asking for oversight because we suspect foul play or bad form; it's just the right thing to do in a democracy. It's just good governance.

In our view it's not necessary to create a new agency—it wouldn't be very popular to talk about that now—but we might be able to enlarge the mandate of some of the current agencies. I urge you to reflect on this as you move forward in your recommendations.

Secondly, there is the difficult issue of persons suspected of war crimes or crimes against humanity. CCLA, like other human rights organizations, is fully engaged in the fight against impunity. It's absolutely essential that people who may have committed crimes of war or crimes against humanity be brought to justice and tried properly. Similarly, people who are innocent of such crimes should be vindicated and should be cleared.

The obligations of Canada on this score are important, and I urge the committee to engage as parliamentarians and to ask for more information on this context. That will be my pitch to you. I think what CCLA recommends is that we should have a policy to extradite or prosecute people suspected of crime, not simply to deport them. I think that simply deporting them is like passing the buck. It's not owning up to our responsibilities to ensure that crimes against humanity are fully prosecuted.

We certainly want an immigration regime that's good for Canada, and it also has to be good for the world. Every day Canadians around the globe are subject to injustices at the hands of dictatorships, and it's incumbent upon us to make sure that war crimes or crimes against humanity are fully prosecuted.

CCLA will be intervening in the Ezokola case. I know that Mr. Waldman will be there as well. This hopefully will clarify some of the standards of proof that are necessary to exclude someone from the protection of being a refugee because he or she is suspected of war crimes or crimes against humanity. I would urge you to continue to consider the necessity to ensure that there is some fundamental justice in the way in which these decisions are made.

It's a difficult question. There's no doubt that different cases raise different facts. Not everyone can be extradited, because there are places where they won't be tried fairly and places where they would be tortured or suffer persecution, but prosecution should be our duty here. I urge you as parliamentarians to demand reporting mechanisms from the ministry to ensure that the decision not to prosecute or not to extradite and instead to deport is reached only as a last resort and only in the clearest of cases.

In our view there's a lack of transparency here that you may want to explore further in your report. We owe it to the world to carry this responsibility forcefully.

Finally, I'll talk about security clearances and norms of procedural fairness generally.

CCLA has a long tradition of ensuring that. We need to treat people fairly in Canada. That's what we're all about, and we have to continue to do that. I think it's important that we have similar norms of justice no matter who it is that is being treated in Canada. Any time there is a depletion of the justice requirement, I think we should be worried. We should insist that norms of fundamental justice continue to be maintained throughout the system. I urge you to put that as a principle of your recommendations.

Last week we issued a report on police checks. Essentially it was about the way in which many people who are found not guilty have information about withdrawn charges or even the verdict of not guilty being disclosed in the context of police checks for employment in vulnerable sectors and so on. It has prompted lots of calls throughout Canada. We've had many calls. I raise it here because many of the calls were about security clearance. I thought I would share with you some of the stories and the issues that have come up.

Basically, we have come to the conclusion that the security clearance regime must be reviewed. We suggest that the Privacy Commissioner or another organization be given the mandate to carry out that review, so as to ensure that the information management process is adequate and that there are sufficient processes for correcting information.

People are sometimes victims of poor information management, in a way. However, that seriously affects their ability to work and travel. We think that the correction processes, retention practices and procedural justice standards involved in the security clearance regime must be strengthened and made more transparent for Canadians and those living in Canada.

We've had several calls, then, about the way in which.... From the consultations we did with the police sector and the security sector, in my view the issue is not so much a question of polarized debate. It's more a question that clarity is needed. There is some ambiguity in the law, and I think it needs to be clarified. Everybody would be better off if they knew better what their obligations were in terms of privacy—

[The Chair, Conservative, David Tilson]

We—

[Nathalie Des Rosiers]

I will conclude on that.

[The Chair, Conservative, David Tilson]

Thank you very much.

Mr. Waldman, it's your turn.

[Lorne Waldman]

Thank you very much. I'll try to be brief. I'm going to pick up on a few topics that Ms. Des Rosiers touched on.

First and foremost, I would like to address the issue of the accountability regime. In the Arar report, Commissioner O'Connor recommended many years ago, in 2005 or 2006, that there be oversight of the activities of the Canada Border Services Agency, especially in relation to national security operations. Unfortunately, those recommendations, although government initially said they supported them, haven't been implemented. It highlights a broader problem that my colleague just mentioned. The Border Services Agency has very broad enforcement powers. They have very broad powers of arrest, search and seizure, and detention, and these powers are not subject to any independent oversight by any oversight body.

We often get complaints from clients about the conduct of CBSA officers. The complaints may or may not be well founded, but if there is a serious complaint of misconduct, it's important that there be a mechanism for verifying. In our democracy, where we have the rule of law, that's the only way we can ensure accountability. Really, there is no independent accountability regime vis-à-vis the Canada Border Services Agency, and this is a very serious problem.

I'm now involved in a dispute with the Border Services Agency over their authority to force one of my clients to attend an interview. They insisted, and I'm now going to court. It's the only way I can resolve this dispute, because there is no independent mechanism for arbitrating. It seems an expensive way of trying to determine the limits and scope of authority of the Border Services Agency.

In terms of my friend's comments on war crimes, I'll just pick up on one point.

I agree with the idea that the immigration act has to be enforced, and I also agree with the idea that it's the duty of our government to ensure that people who are wanted and who failed to appear for deportation should be apprehended, but sometimes the methodologies used are counterproductive.

I should say that in the case of the most wanted list for war criminals, that really has produced situations such that people who could have been deported now may not be able to be deported. That's because we live in an age when the publicity that occurs when governments like Canada's make statements is huge, and the Internet makes this information accessible. I'm involved in a case now with one of the persons who was on the list, who is now in a situation in which we have asserted, and an immigration official has agreed, that he would be at risk if he were deported. The idea of a most wanted list publishing the names of people who are wanted for war crimes was ill-conceived. I don't have the same concerns about other types of most wanted lists.

The third issue that I want to speak about briefly, and then I'll stop and leave it open for questions, is the question of detention. I thought that was one of the focuses of today's meeting. I've been doing immigration law longer than I would care to admit—it's been over 25 years—and I've seen the incredible increase in the use of detention by immigration authorities.

Some of that is necessary because we're in a world today where many people are coming to Canada, and it's more difficult to find out who they are. The prevalence of false documentation is higher. Certainly it may be necessary to detain people until we know who they are, because if we don't know who they are, we can't really ascertain whether or not they pose a danger to society.

It may be necessary to detain people who pose a danger to society, but we're seeing detention used in a lot of other circumstances in which people don't pose a danger and we know who they are. This is of particular concern first because of the impact of detention on the individuals.

You visited the Rexdale facility, which is a minimum security facility. I don't know if you had an opportunity of going to the Toronto West Detention Centre, which is a maximum security facility where a lot of the immigration detainees are held. I can tell you it's a very demoralizing, depressing place for a person to be detained, because it's a holding facility for people awaiting pretrial. There are no facilities for any kinds of activities there, and immigration detainees don't get any access to any of the facilities. We have people who are being held in immigration detention for one or two years in conditions like that.

Of even more concern to me is the issue of detention of children. There are children who are being detained, and if you went to Rexdale, I'm sure you saw children there. It's completely unacceptable that children are being detained, and they're not getting any kind of access to services that should be made available to them. I'm very concerned about the impact that detention is having on children who find themselves in detention because their parents are being detained.

I'll stop here. There is a lot more we could say about detention. The one other point I want to make is that detention is extremely expensive, and the government should be considering all of the different alternatives to detention. I've used electronic monitoring as an alternative to detention. We have a bail project in Toronto, an alternative to detention, but it's not being used enough, and it should be used more.

We have to creatively look at different ways to ensure that people who should be under some kind of monitoring are kept under monitoring, but in ways that don't require them to be detained in the immigration facilities because of the expense and because of the impact on the individuals.

That's all I'll say for now. Thank you.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Waldman.

Go ahead, Ms. James.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you, Mr. Chairman. Congratulations on your appointment as chair once again.

Thank you to both of our guests for your presentations.

I'm going to direct the first part of my questions to Ms. Des Rosiers.

I need to have a bit of clarification on something you said. I think you said you preferred extraditing war criminals to deporting them. Are you saying that if someone who has come to Canada is a war criminal or terrorist or whatever the case may be, and that person has physically left Canada—are you asking us to bring them back to try them here?

I'm not fully understanding that.

[Nathalie Des Rosiers]

The obligation is to prosecute people at the place where there are the resources to prosecute them. At times, it could be that you need to send them to the place where they are ready to prosecute them.

It's the reverse of what you're saying. It's not bringing them back, it's bringing them to a place—

[Roxanne James, Conservative, Scarborough Centre, ON]

You're saying if there is a known war criminal or a known terrorist, and we deem that he's here on Canadian soil, you're saying we should try him here for his crimes in another country, as opposed to deporting him back to that country to face charges there?

[Nathalie Des Rosiers]

You have both options.

[Roxanne James, Conservative, Scarborough Centre, ON]

Which is the one that you're saying, though? I need to ask because it will lead into another question, so I'm curious to know.

[Nathalie Des Rosiers]

I suggested that the government have both options. The idea is that people are presumed innocent. You have to have evidence.