Citizenship and Immigration Committee on Oct. 15th, 2012

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

This has no relevance whatsoever.

[The Chair, Conservative, David Tilson]

The government is itching to talk about that. We will be holding hearings on Bill C-43, which the House of Commons is going to vote on tomorrow. This committee will be studying that bill.

It does involve security, but I don't think we should hear that specific topic yet. You can come another time and make a presentation then.

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

I had a feeling she would—

[The Chair, Conservative, David Tilson]

Try to stay away from Bill C-43, because we will be getting that in another hearing.

[Debbie Douglas]

Let me finish then by talking about security in terms of the impact minimum sentencing will have on those who have grown up in Canada who might find themselves in situations, often because of petty crime, where because of the sentence that has been handed down, they may be seen as someone who should be removed from Canada.

That is certainly a concern for us for people who are by all intents and purposes Canadian. They've grown up here. They have very little, if any, attachment to another country, and for whatever reason they have not become a Canadian citizen. There are many reasons for this, including family breakdown, and the fact that some children become wards of the state. Unfortunately, it is only now that many of our provincial organizations are starting to pay attention to immigration status and issues of citizenship, whereby many of these people, in particular, young men from racialized communities, and in our case young black men, are finding themselves headed toward deportation to countries where they have no connections because they are deemed to be a security risk. This certainly is something the committee should be taking into account when looking at security measures. We need to ensure we are not punishing everyone because we were trying to secure our borders, and those who for all intents and purposes should be Canadians are being expelled from our country.

[The Chair, Conservative, David Tilson]

Thank you, Ms. Douglas.

Mr. Grant, good afternoon again. You have up to ten minutes to make a presentation to the committee.

[Angus Grant]

Thank you. Can you hear me?

[The Chair, Conservative, David Tilson]

Yes we can, sir. They're all saying yes.

[Angus Grant]

Okay.

Thank you, members of the committee, for inviting me today. I'm honoured to take part in the conversation you are having, which is an important one.

In the context of your discussion on security in Canada's immigration system, I want to address the specific issue of how security threats are dealt with in the immigration section, specifically under section 34 of the IRPA.

I am a lawyer, as the chair mentioned, and while I still have a small practice, I'm devoting my time right now mostly to doctoral studies on precisely this topic, on the application of security provisions both in Canada and in other jurisdictions. I've recently published a paper on the topic in the Georgetown Immigration Law Journal.

I want to begin by telling a story, which perhaps many members of the committee have heard, about Habtom Kibraeb, an individual in Halifax, who on a winter day in February 2010 walked to a car and committed suicide. It was a tragic event. It saddened many people in the Halifax community.

What I want to talk about with respect to Mr. Kibraeb is that prior to coming to Canad,a he had taken part in the independence movement of the Eritrean people in their efforts to create their own country and separate from the highly oppressive regime in Ethiopia.

The efforts he took part in were universally recognized as being for human rights and a democratic purpose. In fact, Canada was one of the first countries to recognize the legitimacy of the Eritrean liberation movement, and we opened up an embassy in the new Eritrean state very shortly after it was created.

There was no talk at the time the independence movement was being carried out about violations of human rights. In fact, it was the opposite. The struggle was intended to create a more positive human rights situation for the Eritrean people.

Fast forward 20 years, and Mr. Kibraeb was in grave danger in his home country, so he came to Canada. After he did, he was found by Canadian immigration authorities to be a terrorist threat. He was found, under section 34, to be inadmissible to Canada.

This was not a question of danger to Canada and not a question of the security of our borders, and it should not be portrayed as such. Nevertheless, he was captured under the rubric of section 34, which is about security. No one ever alleged that he was a danger to Canadians or Canada; it was all about the activities he had taken part in and the movement he had supported, as I said, some 20 years earlier.

Please don't take what I am saying to suggest that Canadian immigration authorities or officials are responsible for the tragic death of Mr. Kibraeb. What I want to talk about today, and what the story really illustrates, is that when immigration security decisions are made in a way that captures the wrong people, it ruins their lives. This happened with Mr. Kibraeb, but I've seen it personally happen to many individuals. This is what I want to talk about today.

The process prevents people who otherwise can't return to their country—and everybody recognizes this because of the threat they face in their country—from working in Canada. It forces them to go on social assistance. It cuts them off from any health care benefits they may have had. Most importantly, it forces them to live in constant fear that they are going to be returned to a country where they know they will be killed. It forces them to face the prospect that they will be wrenched from their family members, many of whom are here with them and not subject to the inadmissibility proceedings. For all family members involved, this is obviously a wrenching situation.

It's simply an incontrovertible fact that the inadmissibility provisions under section 34 capture a wide swath of individuals beyond those who may pose a security threat to Canada. The provisions of section 34 are clear. The plain wording captures any member of the African National Congress. In fact, we have seen that, and efforts are being made to obtain a waiver for ANC members. Also, because of the plain wording of the provision, any member of the U.S. armed forces is categorically caught.

Members should know the wording of section 34, but I'll repeat it. It is that anyone who has engaged in or instigated “the subversion by force of any government” is categorically inadmissible to Canada.

What happens in these situations? Discretionary decisions are made to let in some people and not let in others, to kick out some people and not kick out others.

I find this process to be fascinating and troubling because of the way it plays out very frequently.

The fact of the matter is that the way the inadmissibility provision under section 34 has been interpreted, there is no temporal dimension to it. It applies to anyone who has been affiliated with an organization that has sought to subvert a government, whether that government was a repressive one or a democratic one. For example, someone who today joined a party or an organization which a hundred years ago sought to subvert another government would nevertheless, in the plain wording of the act, be inadmissible.

As I said, the crux is that these fundamental decisions that are being made about the security of our country and the lives of individuals who may have a risk to their lives back home are discretionary in nature.

I want to propose three things that this committee should take into account in looking at these factors and discretionary decisions.

First of all, I think it is absolutely incumbent on this committee to propose to Parliament that broad waivers are afforded to the classes of individuals, such as the African National Congress, we know pose no threat to the Canadian public but who may have participated in events that put them on the wrong side of section 34.

This has been done in the United States. The United States has a waiver for individuals who belong to organizations that are not terrorist organizations and do not pose a threat to the United States, but who, in the same way in the United States, have run afoul of the terrorism legislation in immigration law.

Secretary Napolitano in August issued a broad waiver of this variety, so that anyone who was a member of one of these non-concerning organizations does not have to worry about being sent back to persecution and potential torture because of their involvement in one of these organizations.

Second, we need to do a better job of training individuals who make these discretionary decisions about what poses a threat to Canadian national security and what doesn't. We need to do a better job of training them as to the complexities that arise when people come to Canada from conflict situations all over the world.

It's very easy to cast the net broadly, but it's much more difficult and much more important to bring that net in, in a way that doesn't capture people who all of us would agree do not pose a threat to Canada. This could be done in part through this broad waiver scenario and in part through other specific training about what kinds of decisions should be made and who is and who is not a threat. That could be improved on, and I could go into more detail on that.

Finally, the waiver provision under subsection 34(2) would be changed somewhat under Bill C-43. I won't tread on Bill C-43 territory, but the provision remains in the new legislation, albeit somewhat changed.

I am firmly of the view that this decision should not be made by the minister. It's currently, and always has been, in the minister's hands, but I would urge the committee to consider a suggestion to change the process. I would argue that no minister, Conservative or Liberal, has probably ever enjoyed or done a particularly good job of making these waiver decisions. They are inherently difficult for a politician to make. They have to worry about the prospect of providing a waiver to someone who has been caught in the terrorism legislation.

Also, the backlog of decisions under subsection 34(2) is simply an abomination. The waiting times are up to 10 years for people whose lives are in limbo. There is a lot of social science evidence to suggest that the waiting time that people face on immigration decisions can amount to a larger torture than people experienced in their home countries. To have to wait 10 years for these decisions, to be perfectly frank, is abhorrent.

I'll stop my comments there. I look forward to a larger conversation about these issues.

[The Chair, Conservative, David Tilson]

Thank you very much, Mr. Grant and Ms. Douglas. You've both given excellent presentations.

We do have questions.

Mr. Opitz.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Mr. Grant, I'd like to know how you know that somebody does or does not pose a threat just based on association with a particular group. How do you determine that on your own?

[Angus Grant]

I can tell you that in many inadmissibility hearings I've had with CBSA officers, that has not been a topic of conversation. I think everybody acknowledges—the board charged with making the decision, the minister's counsel in charge of prosecuting the decision, and the defence—that no one says there is a threat to Canadians. In fact, the matter that has led to this person coming before an inadmissibility referral or decision had nothing to do with Canada or any threat posed to Canada.

I'm speaking mostly about individuals where it is not controversial. There are many of these individuals. It's not a small group. It's not an isolated incident when this happens.

The fact is that the breadth of the provision captures people who it's uncontroversial they pose no threat.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

I would say that may be in your experience, but oftentimes there are people who do pose a threat, and this is one of the things we're talking about. It's the security. It certainly is an evolving thing in this country and others and we are trying to improve it as best we can, given that time moves forward and there are new technologies that we will try to put in place.

As my colleague pointed out earlier, Mahmoud Mohammad Issa Mohammad, who in fact did carry out terrorist acts for the Popular Front for the Liberation of Palestine, has been here since 1987 and has been launching a series of judicial appeals in a process that has cost Canadian taxpayers at this point about $3 million. Has legal aid, in your opinion, ever spent $3 million to defend a serious criminal?

What's the most, in your experience, that has been spent in such a situation?

[Angus Grant]

I couldn't hear the end of your question, but I did hear the beginning of it.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

The end of the question is that this fellow has cost Canadian taxpayers $3 million, and he's a guy with a terrorist past with the Popular Front for the Liberation of Palestine. Legal aid has spent $3 million to defend this guy, who has clear links to terrorism.

Do you think that this is an appropriate cost? In your experience, have you ever come across that kind of cost to defend somebody in his category?

[Angus Grant]

I'll answer the second question first. No, that would be an extreme outlier of a decision.

My answer to the first part would be a question for you, as to whether or not you believe in the presumption of innocence. If you do, you need to have a process to actually test whether an individual has engaged in these kinds of acts. If you don't, well then I'll leave that to you. But I personally do believe in the presumption of innocence and in the rule of law, and in a process that can fairly and efficiently ascertain whether or not someone is such a threat.

As I said throughout my comments—

[Ted Opitz, Conservative, Etobicoke Centre, ON]

That's okay, sir. Because I have limited time, I'm going to carry on.

That's 25 years of presumption of innocence, and even though that's still before our courts, it's carrying on.

What do you know about biometrics?

[Angus Grant]

My expertise is not in biometrics, and that's not what I'm here today to talk about.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Do you understand the concept of biometrics, such as, photographs, face recognition, fingerprints, something that will help determine a person's identity? Do you think that's the way to go conceptually?

[Angus Grant]

I do know that photographs [Inaudible--Editor]

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Okay, but do you think that kind of implemented program is the way to go to identify people definitively?

[Angus Grant]

I'm not going to comment on the biometric issue. Again, that's not why I'm appearing today. It's not my focus. It's not the focus of my legal practice; it's not the focus of my doctoral work.

[Ted Opitz, Conservative, Etobicoke Centre, ON]

Okay.

Ms. Douglas, I'm going to address a similar question to you, because you've met that.

How do you determine who should be in detention or not? Oftentimes people have come to this country and have not cooperated in identifying themselves. We don't know who they are. We don't know where their true intentions lie. Until we can de facto identify these people, why should we let them out to be around your friends and neighbours? Would you keep somebody in your own home, with your own kids, under those circumstances?

[Debbie Douglas]

That's why we're recommending that we begin a plan of setting up a formal alternative program. What we will do, then, is identify the conditions that people must meet, under which—

[Ted Opitz, Conservative, Etobicoke Centre, ON]

But, madam, you're not answering my questions.