Citizenship and Immigration Committee on Oct. 1st, 2012

[The Vice-Chair (Ms. Jinny Jogindera Sims (Newton—North Delta, NDP)), NDP, Jinny Sims]

I call the meeting to order.

This is the Standing Committee on Citizenship and Immigration, and today we are here, pursuant to Standing Order 108(2), to discuss the study on Standing on Guard for Thee: Ensuring that Canada's Immigration System is Secure.

Our first two witnesses are Mark B. Slater, professor, School of Political Studies, University of Ottawa, and by videoconference, Peter Edelmann, a lawyer. We're looking forward to both your presentations, gentlemen. You have 10 minutes each.

Mark, we're going to start with you.

[Dr. Mark Salter, Professor, School of Political Studies, University of Ottawa, As an Individual]

Thank you.

It's Professor Salter, not Slater. That was somebody else. Thank you.

[The Vice-Chair (Ms. Jinny Jogindera Sims), NDP, Jinny Sims]

Oh, my apologies. It must be my teachable moment here.

[Dr. Mark Salter]

No, not at all.

I'd like to thank the committee for the invitation to speak today. Today I'd like to speak about one of the central concerns of this report, and that is visa policy. In particular, I'll speak about the relationship of visa policy to security.

Visas, as you know, are one of the primary tools in Canada's immigration management regime. Even though the final decision remains with the border guard at the border, visas are an important way that border decisions are processed.

I would argue, and I think we all agree, that neither security nor liberty can be gained in zero sum and that they are not separate. We cannot balance security and liberty. We cannot be free without being secure, and we cannot be secure without being free. Those are both goals at the same time, so the question for me, when it comes to visa policy, is this: how can we make the most secure visa system while retaining our uniquely Canadian version of liberty?

At present, Canada's visa requirements are determined on a country-by-country basis. The Ministry of Citizenship, Immigration and Multiculturalism makes an individual country report based on a number of factors: growth, migration figures, the security of the travel documents, fraud, rates of refugee claims, and the like. However, these country category visas are blunt instruments. In the words of Minister Kenney, the visa

...is a very blunt instrument.... It undermines Canada’s commercial and diplomatic interests. It’s a necessary tool to use in a managed immigration system but you want to only [use it as a last resort.]

To give a clear example of this, I can point to the Czech visa crisis. In March 2009, Canada imposed visa restrictions on Czech Republic nationals because of a large influx of refugee and asylum claims and a corresponding rise in the number of fraudulent claims and the number of abandoned claims. While a large number of these claimants were Roma who claimed persecution by the Czech state, and who indeed received asylum when their claims were processed through the IRB, Canada argued that the large influx led to a greater amount of fraud, and that a visa needed to be applied.

I'd like to note that the proportion of asylum claims did not diminish; it was simply that the number increased.

This led to two kinds of turbulence for the Canadian government. First, it led to a diplomatic perturbation, kerfuffle, tension—I don't know what the appropriate diplomatic language is—and has led to an issue between Canada and the EU because, although Canada is free to impose a visa on the Czech Republic, the Czech Republic, because of the Schengen agreement, is not free to impose a visa back on Canada unless all the EU puts a visa on Canada.

This may seem academic—I'm a professor, so I suppose all things seem academic to me—and it may seem abstract, except that Canada needs the ratification of the Czech Republic and all EU members for the ratification of the comprehensive economic and trade agreement, which is crucial for Canada. The EU is Canada's second-largest trading partner after the United States, and this visa issue is in the way of that ratification.

Second, I would argue that the visa issue puts into question Canada's upholding of its international legal obligations by pre-emptively restricting the ease of mobility for Czech nationals and thus restricting their ability to claim asylum. I'm happy to answer more questions on that later.

To repeat, I think that country visas are blunt instruments, but then we need to ask what the alternatives are. Officials have intimated that there is in the works a “next generation visa program” that will sharpen visas and allow Citizenship and Immigration Canada to reach below the national threshold and make individual assessments based on what we call tombstone data—name, date of birth, place of birth, gender—and on biometric data, including photographs and fingerprints.

First, I would like to know what the plan is, and I hope you will ask that question also, because it is not clear to me. We have heard hints about it, but I don't know what the shape of it looks like, so I'm going to go on what other countries do and ask the question about how this next generation visa could possibly work.

Canada will collect data. What will it compare this data to? There are two primary ways in which the United States and Australia use the data they find in this kind of tombstone data and biometric data recovery: compare it to watch lists or generate profiles. Both of these policies fail. Neither profiling nor watch lists work as a deterrent, either for terror or for asylum—let me be clear. The shoe bomber, Richard Reid, fit every criteria of a profile that you would wish. He even had the beard. He was travelling on a brand-new passport, recently applied for. He was travelling on an international flight without luggage. He had no return plans. He was cross-examined for six hours the first day and seven hours the second day. He still got on the plane and managed to light his shoe on fire. That's because the profile system gets you so far, but because he was seen as a British citizen and therefore not of high risk, that didn't go further. Secondly, Abdulmutallab, the underwear bomber, was on a watch list and yet still was not apprehended.

I'd like to tell you the story of a former student of mine from the American University in Cairo, who had the same name as a 9/11 terrorist. One thing we know about the 9/11 terrorists is that they are dead, but that did not stop his name from being on the watch list. My student was unable to attend the model United Nations because his name was the same as that of a terrorist. Now, I'm not saying that there is a large number of such people, but we need to be very careful about the degree to which we inherit other agencies' intelligence. You should be sure that, as citizens of the same country as Maher Arar, we would be particularly sensitive to this.

What we know about the American system for creating their terrorist watch list is that there are thousands of people dedicated to putting names on the list and perhaps a dozen dedicated to getting names off.

It seems to me that if Canada is going to use watch lists, it has two choices: we adopt somebody else's, in which case we inherit their errors without gaining any of our own security, or we use a private watch list, because some of those are available. But the dynamic with those lists—such as World-Check—is that names go on the list and they never, ever come off. Those lists are generated for banks and other kinds of financial institutions that measure risk, not guilt.

It seems that if we use profiling we are at risk, and if we use watch-listing we have a problem, so I would like to pose three questions that I hope the committee will answer during its investigations.

First, what is the plan for the next generation visa? I feel that I'm involved in this area of public policy and I have no idea.

Second, how would it avoid the problems of false positives, false negatives, and the general increased cost?

Third, I hope the committee will ask when the Government of Canada is going to invest in more science and social science investigation so that we can gain data about the efficiency and efficacy of these border security programs. I know of no government program that right now is funding research into the increased efficiency or efficacy of border security programs.

My conclusions would be three. First, without proof that these sharper next generation visa policies can effectively or efficiently target asylum claimants, potential fraudsters, or terrorists, Canada will lose economic and diplomatic advantage for no increased security.

Secondly, the next generation visa will attempt to pre-emptively stop asylum claimants without any process of appeal or justification.

Third, and finally, Canada has no independent, non-governmental policy capacity to evaluate border security strategies. As such, Canada, since 2002, is reacting in terms of its border strategy rather than acting. I think the difference between the shared border accord and the western hemisphere travel initiative demonstrates that clearly.

I'd like to thank the committee again for taking visas seriously as part of border security. I think it's important and it's under-studied.

Thank you.

[The Vice-Chair (Ms. Jinny Jogindera Sims), NDP, Jinny Sims]

Thank you, Professor Salter, for your presentation.

Now I'll turn it over to Peter Edelmann for his 10 minutes.

Peter.

[Peter Edelmann, Lawyer, As an Individual]

Thank you very much.

Thank you for the opportunity to address the committee.

As you may know, I'm a criminal defence and immigration and refugee lawyer here in Vancouver.

I began my career at the Immigration Prevention Centre, in the Montreal region, while I was studying law. That's where I really discovered immigration security issues.

As I speak Spanish, I work a lot with Spanish speakers.

I'll start with an example of one of my clients from El Salvador. He was a police officer in El Salvador. He was involved in the investigation and ultimate incarceration of I think more than 200 gang members. He was hunted down by the gangs and ultimately had to flee, because his country, the police, couldn't provide protection for him.

He came up through the United States, where he was found not to be an asylum-seeker because of some technicalities in the law of asylum in the United States. He ultimately has found a home in Canada. Although he did not become a protected person here, for reasons I won't get into, he hopes one day to become a police officer here.

I think it's important to understand the situation in El Salvador. Why am I talking about a small country in Central America? El Salvador, aside from being a corridor for the transit of drugs, which is directly related to our policies of drug prohibition in Canada and the United States and other places, is also currently in a battle with very powerful gangs. Two of those gangs are Mara Salvatrucha and 18th Street. The 18th Street gang refers to a street in Los Angeles, California, in the United States. The Mara Salvatrucha gang also started in the United States.

Why are these powerful forces now overwhelming the authorities and the safety situation in El Salvador? In large part it's as a result of policies of removal and deportation both from Canada and the United States, but primarily in the United States, where we saw gang members being removed back to El Salvador, Honduras, and other countries in Central America, and the citizens like my client who would arrive here and, for example, hopefully one day become a police officer here, would be able to stay.

Now, we have no indication to say that immigrants or people arriving from other countries have a higher rate of being involved in gangs, but for those who are involved in criminality or in other forms of behaviour that challenge security, one of the solutions we use is to send them back. The impact of that in other countries is absolutely devastating. What I'd like to talk to you about today is the fact that it is directly related to Canada's security. It's directly related to a vision of Canada's security as to whether or not we see our security as creating, or whether we even have the ability or the desire to create, a gated community in which we have the illusion of being secure.

In my submission, that's not the vision that Canadians...or that it is a long-term vision. I would submit that, in the end, security is always going to be a trade-off. There is always a trade-off with any kind of security. There is no absolute security and there never will be.

You heard the professor talk about security and liberty. There are obviously other trade-offs as well. This committee has talked a lot about exit controls. Whether or not they could increase security in the immigration system, checkpoints are clearly very powerful security tools. Checkpoints are used in many countries as very powerful security tools, not just limited to borders but throughout the country. In many countries, there are military checkpoints throughout the national territory, and it's a very powerful security tool.

Now, there's obviously a cost associated with that tool. There's a cost in terms of economic costs, there's a cost in terms of time, of inconvenience, and the resulting loss of privacy and freedom that comes with those trade-offs.

But we shouldn't have any illusions...that there's always a trade-off when we're talking about security. So when we talk about imposing exit controls, or when we talk about removing individuals who pose a danger to Canadians, we have to understand that there are trade-offs.

I would hope, and I would encourage the committee, when we're considering Canada's short-term security interests today, that you also consider what our long-term vision for Canada's security is. What kind of world, what kind of Canada, do we want our grandchildren to live in? Do we want to have a gated community where we live behind walls in fear of what's on the other side, in fear of letting people pass through the walls, or in the hopes that in some fictional world we might be able to keep all of the bad people outside the walls?

I'm going to submit to you that this is not a realistic vision, that many of the security problems or the problems we have in our society are inside the walls, and that those we send outside those gates are not going to go away. They do directly affect Canadians in the sense that our friends and relatives live in those countries. Our neighbours' friends and relatives live in those countries, as do your constituents'. I would imagine that you'd be hard pressed, even with the small number of members on the committee, to find a single country in the world where you could send a dangerous individual and there would not be constituents in your ridings affected in terms of their friends and families being put at risk, and their security affected.

Ultimately, although these are complicated questions, I would hope that when we consider the security of Canada we also have a vision for the bigger picture in terms of the impact and in terms of what the long-term vision for a secure Canada looks like.

I am happy to answer questions, but those would be my opening remarks.

Thank you very much for your time.

[The Vice-Chair (Ms. Jinny Jogindera Sims), NDP, Jinny Sims]

Thank you, Peter. You have saved us almost three minutes here, so we will have a longer time for questions.

The first round of questions will go to my colleague John Weston.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Thank you, Madam Chair.

I want to thank my colleague from British Columbia as well. I am also from Vancouver, and I represent the riding of West Vancouver—Sunshine Coast—Sea to Sky Country.

Thank you both for joining us today.

The themes that you both raise are themes in which everyone in the room invests and cares about with passion—the long-term vision, Peter, and certainly the balance between security and freedom. I think everyone agrees that there are certain people who we don't want to invite to our borders.

Certainly, Peter, the notion of a gated community is beyond the imagination of our Conservative government, which this year has issued over 500,000 visas and in 2010 issued 920,000—a huge increase over the number of visas being issued by the previous Liberal administration.

This is a country that is catering to visitors, to tourists. Certainly we are very keen on foreign investment. Forbes magazine calls us the best place in the world to invest. In terms of immigration, 250,000 were welcomed to our shores from all over the world. So we're robustly welcoming the world, and the world is coming to our shores.

My first question is for Mr. Salter.

You asked whether we had a plan in terms of security and immigration. We do have biometrics, for instance. We have also centralized the process for obtaining information in all our foreign offices. Claims can now be processed wherever they are submitted. Do you encourage those measures? Do you feel that they will strengthen Canadian security? Do you have any other ideas for protecting us better?

[Dr. Mark Salter]

Thank you.

I will answer in English, so that I can be more specific.

My colleague, Benjamin Muller, will be here on Wednesday, I believe, and he is far better equipped to talk about biometrics than I, so I will leave that question for him.

But on the question of centralization of information, we are in a challenging time, in that many of the countries that provide the breeder documents we base our intelligence analysis on do not have robust document infrastructure. For example, in the United States alone there are over 300 kinds of identity documents. That's just in the United States, which has a very robust government. But when we go to places like India, Indonesia, or Malaysia, those breeder documents can be extremely insecure.

My concern is that we mistake personal interaction for automatic risk assessment, if that makes sense. It seems to me that if we use watch lists or profiling to say that it is “this set of names” or “this set of behaviours” that sets off a flag, then that seems to give us the impression of increasing our security because we've run a check, but it does not in fact actually increase security.

Does that make sense?

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Well, let me interrupt, Mark. I don't know if you have kids, but there are kids in your life somewhere. You want to protect them from bad people. If there were a possibility that terrorists would come in, you would be advocating, I'm sure, for ways in which we would keep terrorists from our shores.

As a professor in public policy, you must agree that not all our policies are acceptable to all people all the time, and certainly you will be able to cite cases where they fail us—as you have—but you still need policies. You still need concrete, practical ways.

[Dr. Mark Salter]

Oh, yes.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Our government is consistently seeking those ways. That's one reason why you're here today: so we can listen to what you have to offer.

We've brought in biometrics. That's coming soon. That's been lauded by people, by law enforcement people and others.

The centralization of data is another big step forward that enables our very professional immigration personnel around the world to share information. We're working as appropriately as we can with the United States and other allies on intelligence services to keep out the terrorists.

What would you do to protect your children or your friends' children from people who malevolently seek bad things for that future generation of which you spoke?

[Dr. Mark Salter]

I apologize. I have not been clear. I'm not undermining that attempt.

I'm saying specifically that it is my impression that eyes on the file are better than automated risk assessment programs. It is better to have an individual making a judgment rather than putting in an algorithm.

It seems to me, if you look at the research on other ways of doing profiling, that there's a room very much like this one where border guards get together and the programmers ask, “What counts as risky?” They say, “Oh, lawyers coming from Nigeria—they're risky.” You ask, “Really? Why?” Well, they say they've had several...so okay, they put “a lawyer from Nigeria”, and that goes into the risk profile. Then the computer raises a red flag and says, “This person is dangerous.” Why? Because he fits the profile.

For me, I'm saying specifically—to put more eyes on the ground is a bad metaphor—that to put more boots on the ground is better than automated risk assessment.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Let me use an extreme illustration to reinforce my—

[The Vice-Chair (Ms. Jinny Jogindera Sims), NDP, Jinny Sims]

You have less than three seconds.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Okay.

A person with a gun is typically considered more dangerous than one without, but not all people with guns are dangerous. We typically profile the gun-carrying person as someone who shouldn't get on an airplane—

[The Vice-Chair (Ms. Jinny Jogindera Sims), NDP, Jinny Sims]

Thank you.

[John Weston, Conservative, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Thank you.

[The Vice-Chair (Ms. Jinny Jogindera Sims), NDP, Jinny Sims]

A very brief answer, please.

[Dr. Mark Salter]

Profiling has not worked in terrorism cases thus far, and I feel...I am anxious. To replicate an automated risk assessment program that gives the illusion of security without actual security.... I think I'm much more in line with your argument for more security; I just feel that people make better judgments than computers.

Thank you.

[The Vice-Chair (Ms. Jinny Jogindera Sims), NDP, Jinny Sims]

Thank you very much.

I'm taking the next round of questions, just so everybody knows.

My first question is directed to you, Peter.

On the broad subject of immigration and security, you may be aware that we're now considering Bill C-43 in the House, which the government contends will lead to the faster deportation of non-citizens who commit serious crimes.

On our side of the House, we recognize the need for an efficient and responsive judicial approach to removing serious criminals who are not citizens. We have made it clear that we are willing to work with the government to make sure our communities are safe and that criminals of all backgrounds cannot abuse our appeal process.

That being said, we have some serious concerns with the legislation before the House. We are concerned that it doesn't strike the right balance between rights and security. We are also very concerned that it is concentrating even more arbitrary power in the hands of the minister.

As an expert in immigration law, I wonder if you could give your general impression of Bill C-43.

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

Just on a point of order—

[The Vice-Chair (Ms. Jinny Jogindera Sims), NDP, Jinny Sims]

Yes?

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

—I know this is kind of awkward because you're chairing and questioning, but I hope you will try to be as objective as possible.

[The Vice-Chair (Ms. Jinny Jogindera Sims), NDP, Jinny Sims]

I will.