Citizenship and Immigration Committee on Nov. 20th, 2012

[The Chair, Conservative, David Tilson]

Good morning. This is meeting 61 of the Standing Committee on Citizenship and Immigration. It is Tuesday, November 20. We are studying clauses 308 to 314 of Bill C-45, which is budget implementation bill number two.

We have three guests before us today. One is in Washington: Mr. J. D. Gordon from the Center for a Secure Free Society.

Good morning, Mr. Gordon. Can you hear me?

[J.D. Gordon, Senior Communications Advisor, Center for a Secure Free Society]

Yes, I can, sir. Good morning, MP Tilson. How are you doing this morning, sir?

[The Chair, Conservative, David Tilson]

Just great, thank you.

We also have two guests before the committee here in Ottawa.

First, Emily Gilbert is an associate professor with the Canadian studies program at the University of Toronto.

Good morning, Professor Gilbert.

[Dr. Emily Gilbert, Associate Professor, Director, Canadian Studies Program, University of Toronto, As an Individual]

Good morning.

[The Chair, Conservative, David Tilson]

We also have Richard Kurland, who has been here zillions of times. I always enjoy it when he's here. I don't know where he stands on things, but I always enjoy his presentations. It's good to see you, sir.

Mr. Kurland is a policy analyst and lawyer, and he has been here before on Bill C-31 and the immigration backlog.

We'll start off with you, Professor Gilbert. You have up to eight minutes to make a presentation.

[Dr. Emily Gilbert]

Thank you. It's a pleasure to be here. It's my first time so I hope I do what's expected of me.

I have a few comments to make about the proposed legislative changes, which seem fairly innocuous and bureaucratic. When going through them, there didn't seem to be much to sink my teeth into to begin with, but further investigation suggested there are many things to be concerned about with these changes.

The reasons for the changes are not clearly set out in the legislation itself, but turning to the background document we get a sense that these changes are being proposed as part of the beyond the border action plan on perimeter security and economic competitiveness that was signed in December 2011 by Prime Minister Stephen Harper and President Barack Obama. The electronic system being proposed is to establish a common North American approach to screening travellers that will be in line with the electronic system for travel authorization, ESTA, that is already in place in the United States. Our ETA, electronic travel authorization, being proposed is very similar, I think, or is expected to be similar to the ESTA coming out of the U.S., so it's important to look at the relationship between these two processes.

I have several questions around the ETA being proposed, that we require a visa waiver for non-nationals travelling to Canada. The first questions are around the kind of information that will be collected.

Currently, carriers have to provide advance passenger information, which includes name, date of birth, citizenship or nationality, passport, and other travel documentation, as well as the passenger name record, which includes address, itinerary, and ticketing information. The question is what kinds of information in addition to this may be procured with the proposed ETA. There are big questions already around the ways information is being acquired and questions around its reliability.

Back in 2007 an Auditor General's report showed almost 40% of the passenger name record information that was being collected was not accurate. Another more recent report by the Canada Border Services Agency back in February 2012 also indicated great problems with the information being collected. This raises a big concern about the kind of information that is being collected already, and how this information may be used in this proposed new system.

The legislation also suggests an electronic processing system will be used, but it's not clear who will have access to this, whether this will be government driven, or whether the carriers will have access to it, and how this information will be shared among national agencies in Canada.

I'll turn now to the way the information may be shared with the United States. Since this is being introduced as part of the beyond the border plan, the big concerns are around the information sharing that may happen with the United States as a result of the ETA.

Again, the background paper identifies its aim is to establish a common North American approach to screening travellers. It's important to see what this means in light of the Canadian system around gathering information and how we understand visa waivers. Travelling may be coming more harmonized with that of the United States.

For example, we still have visa waivers for many former Commonwealth countries. Whether those will be sustained in the future or whether we will move more in line with the United States and their decisions around who requires a visa or not to enter the United States is yet to be seen. That's one concern, that as we move to greater harmonization around our processes, we'll also move to harmonization around the kinds of countries we require visas for.

Then there is the whole process around information sharing between Canadian and American agencies. The beyond the border agreement sets out the information that will be shared. A key component of the beyond the border agreement is that there be further information sharing between the two countries. There are big questions about how, when, and why that information will be shared, and under what circumstances it will be shared.

The American version, the ESTA, which was set up in 2007, is very vague regarding who has access to this information. The American version states:

Information submitted by applicants through the ESTA Web site is subject to the same strict privacy provisions and controls that have been established for similar traveller screening programs. Access to such information is limited to those with a professional need to know.

That's all they say, so it's not clear what that “need to know” is, how that's decided, and on what basis.

It does say that the Department of Homeland Security and the Department of State, as well as federal, state, local, tribal, and foreign government agencies can have access to this information. There's a question in the Canadian case as to whether we also will have these different organizations having access to the information, and whether we will be making this information available to the Department of Homeland Security or the Department of State in the United States. I think that's a big question around how the information will be shared across the two countries.

We have many examples in Canada of information sharing that has gone wrong. The case of Maher Arar is always brought up as one key example. The federal inquiry did reveal many problems with the way the RCMP acquired information and how it was shared. The United Nations cited this as an example of human rights infringement around the information sharing that took place.

Also, privacy issues have been identified as a key concern in the limited public engagement that there has been with the beyond the border agreement. Privacy issues have been number one in issues identified by the public vis-à-vis the beyond the border agreement.

None of these are clearly set out in the legislative changes that are proposed. There is no sense of how these will be addressed or taken care of, so again I think we need to be very careful about how these things will unfold.

The other question is around inadmissibility criteria. Again, there are questions of whether there will be harmonization around the criteria for allowing someone who is part of a visa waiver country to come to Canada. The Canadian and U.S. versions are similar to a great extent, but they're not exactly the same.

Again, the question is, will we be taking on these different kinds of rules that the United States has? For example, they specify mental health issues. We do not specify mental health in the current Immigration and Refugee Protection Act. Whether that is something that will be taken up is yet to be seen. There are examples of people already being denied crossing at the Canada-U.S. border because of mental health reasons. There are questions around how that information is being made available to border agents.

Between Canada and the United States, we have a joint statement of privacy principles that has been signed through this beyond the border agreement. Whilst this does set out a framework of common rules for approaching how we will share information in future, there is very little in terms of how this will deal with the distinct constitutional and legal frameworks that we have in Canada and the United States. It's very strong in principle and statement, but not very clear in terms of procedure.

Another big issue has to do with appeal and redress. There is no statement about how people will know why they are inadmissible if they are so deemed, how they will be informed about these reasons, and how they will make any kind of appeal or have opportunities for redress if they are not admissible to Canada under these new rules that are being introduced. I think that needs to be clarified in the legislation around appeal, which is something that we set out as due process in Canada—

[The Chair, Conservative, David Tilson]

Professor Gilbert, we're over the time. Could you wind up, please?

[Dr. Emily Gilbert]

Okay. I will wind up right now.

I'll just say that there are many issues that are raised by these legislative proposals. The most important one, as I've tried to stress, is how this brings Canada and the United States closer together and what this will mean for information sharing between the two countries, how it will happen, when it will happen, and what conditions there are around that information.

[The Chair, Conservative, David Tilson]

Thank you, Professor Gilbert.

Mr. Kurland.

[Richard Kurland, Policy Analyst and Lawyer, As an Individual]

Mr. Chairman, it's always an honour and a pleasure to be here in front of committee. Thank you.

[The Chair, Conservative, David Tilson]

That's why we love you.

[Richard Kurland]

I'm going to build on Professor Gilbert's observations. Rightly she pointed out that consumer protection is a requirement here. Privacy must be guarded.

I wish to highlight a problem that I've seen here. I'd like to ring the alarm bell about another group that will be adversely impacted by the proposed law: members of Parliament. When members of Parliament begin their multi-year journey serving Canada, some are unaware that a large part of their time will be dedicated to mobility issues, immigration issues.

I wish to caution that the absence of a framework for individual redress of the kind that already exists in the United States will lead to more work at the offices of members of Parliament. There is no federal consumer protection law allowing individual redress. Where will people go? To their member of Parliament, and it will always be an urgent crisis situation. They can't make their flight, or their relative can't come, or they're stuck somewhere.

I wish to point out that if there is no User Fees Act connection, it will be the members of Parliament who will provide the service that should be provided under the User Fees Act. I'll say a quick word and I'll close shortly. The User Fees Act is a friend. There is no better ally to a member of Parliament than the User Fees Act, because that law sets a service standard. That service standard is triggered by doing nothing on the part of the consumer or the member of Parliament. It is a save-work act. If this legislation goes through not connected to the User Fees Act, this will be a make-work act for members of Parliament, so beware.

[The Chair, Conservative, David Tilson]

You always get our attention when you speak.

[Richard Kurland]

Thank you, Mr. Chairman.

[The Chair, Conservative, David Tilson]

Mr. Gordon, from Washington, thank you for appearing before us this morning. Sir, you have up to eight minutes.

[J.D. Gordon]

Thank you, Mr. Chairman. I would like to thank the committee for having me join you today for this important testimony. I'd also like to thank MP Rick Dykstra for his kindness and hospitality and Julie Lalande Prud'homme for organizing this for us.

I recently participated in a Center for a Secure Free Society forum called “The Future of North America”. We had it right there on Parliament Hill a few weeks ago. In fact, it was in that very room. We had Jim Gilmore from Virginia, a former governor; Roger Pardo-Maurer, one of my colleagues who is a former deputy assistant secretary of defense for the western hemisphere; Joseph Humire, the executive director of the Center for a Secure Free Society; John Carpay, from the Justice Centre for Constitutional Freedoms; and Candice Malcolm, who organized it for us there.

It's good to be back just three weeks later to formally testify on the same topics we talked about there, which had to do with border security, immigration, economics, security, and the balance between liberty and security.

The U.S., Canada, and Mexico are inextricably linked. Whatever happens in one happens in another. The U.S.-Canada border alone is five and a half thousand miles long, and seven thousand if we count Alaska. With trade amounting to $1.5 billion a day and roughly $500 billion a year, our bilateral trade remains one of the key factors in our shared prosperity.

That said, we also have shared threats in the form of transnational criminal organizations, non-state actors like al Qaeda and the homegrown terrorists it inspires, and state-sponsored terrorism like Iran and its proxy, Hezbollah.

The U.S. and Canada remain engaged in valiant efforts to stabilize Afghanistan, fighting off the Taliban efforts to reconquer the government and turn the country into a terrorist safe haven. Radical Islam remains one of our chief shared threats, as correctly noted by Prime Minister Stephen Harper.

We have been at war since 9/11, and it was not a war of our choosing. As long as we remain at war, the U.S. and Canada will remain targets of extremists. Plots are foiled continuously, and our law enforcement authorities must be right one hundred per cent of the time, given the severe consequences of mass terrorist attacks. Failure is not an option.

Also, we have to combat fraud, tax avoidance, human trafficking, and a shadow economy that immigration policy can help fix. The immigration policy remains a key component of strong security and fraud avoidance for both countries. Borders are important, and security at the borders is vital for us as well. It is the most obvious to the public. But so is the procedure for granting visas worldwide, monitoring who comes in, why they come in, how long they're here, and whether they leave.

The U.S. and Canada have made some mistakes in admitting terrorists and would-be terrorists into our countries. Algeria and Ahmed Ressam comes to light as a prime example. Here was a man who came to Montreal, Canada on a fake French passport in the early nineties. When it was discovered that it was a fake passport, he suddenly changed his story. He said that he was looking for political asylum, which was granted. Over the years he got involved in petty theft, crimes, and fraud. He eventually went to Afghanistan to join al Qaeda terrorist training camps at Khalden. Despite the fact that he went to terrorist training camps in Afghanistan, he was readmitted into Canada.

In 1999 he tried to cross the border. He did cross the border, actually, from Victoria, B.C. to Port Angeles, which is up in the Olympic Peninsula across from Seattle, Washington. He had a trunk full of explosives 40 times more powerful than a car bomb. His destination was Los Angeles airport. He planned to blow it up on the millennium, the “Millennium Bomber".

In the U.S. we've had problems, as well. Most of those 9/11 hijackers should never have been in the country to begin with. We even had a more recent problem. A young Bangladeshi man named Quazi Mohammad Nafis was in the United States on a student visa. He planned to blow up the Fed in New York. We've had problems both in the United States and in Canada about who we admit to our countries.

We also have problems at our border with Mexico, of course. It's a little bit of a different problem, but some of the same issues overlap. At the Mexico border, we've implemented a system called “strategic fencing” at the places where we absolutely have to have it because people come in droves. There's generally a three-tiered fencing system in certain parts along the U.S.-Mexico border.

We've also increased the use of sensors and cameras, recently including surveillance drones. That's been a successful program.

We've been able to dramatically reduce the number of people coming across the border illegally.

We hope this is never necessary on the northern border with Canada, particularly given our better cooperation, I'd say, with the Canadian government, and just the length of the border that we would have to do that for.

I have three recommendations.

Number one is to improve pre-screening overseas. We have to really determine who is coming to the United States and who is coming to Canada, because they affect both of us. When Canada admits people on a political asylum basis or, say, under a student visa, that has an impact on the United States, because they could easily cross the border. At the same time, we have $1.5 billion a day in trade between our two countries, so we don't want to impede the free flow of goods between our countries. We don't want to make the border security checkpoints any more cumbersome. Pre-screening is the top recommendation I'd have.

The second recommendation would be to increase intelligence sharing. The U.S. and Canada have already shared a military command in the form of NORAD to protect our continent from the nuclear menace of the Soviet Union in days gone by. We still have NORAD and we still have a very strong military partnership and military alliance. I think information sharing between our two countries is absolutely vital.

The third recommendation I would have is that Canada take a whole-of-government approach whereby Parliament would have different committees to deal with not only immigration but also defence issues and trade issues and that they all come together and think about what is best for the country and for our continent to keep us secure. I think that the electronic travel authorization is warranted. I think it makes sense. It will help secure our countries and will help defeat fraud and ensure that people in Canada pay their fair share of taxes.

The last thing I would mention is that when I was the Pentagon spokesman for the western hemisphere, I served under Secretary Rumsfeld and Secretary Gates for four years at the Pentagon.

One of the primary things I did was speak for the United States government regarding what was happening in Guantanamo. I've been there some 30 times, and I have brought seven or eight Canadian press there at least a dozen times. I got to know some of their thoughts about terrorism writ large in our hemisphere. One of the cases that really struck me as odd was the Omar Khadr case, in that Omar Khadr and his family, called the “first family of terrorism” by many in Canada, were able to get into Canada and stay there even though they fundamentally didn't show any respect for Canada whatsoever. Khadr's parents would stay in Canada to have children so they could enjoy the free health care and take advantage of the largesse and the kindness of the Canadian government and at the same time would go back to live in places like Afghanistan and Pakistan because, as Khadr's mother would say, she didn't want her kids growing up to be like Canadians. It was actually quite offensive. Most people there have probably already seen the interview on CBC in which they talked about that. We can get into that later, but I think Canada needs to take a hard look at who they admit and why they admit them. That way we'll be much safer as a continent.

Thank you very much.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Gordon.

We'll now have questions from the committee.

Ms. James is first.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you, Mr. Chair.

Welcome to all of our guests.

Mr. Kurland, your statement was very brief, but I'm going to go in a different direction and ask you the first set of questions.

With regard to the electronic travel authorization and the fact that someone would be flagged as inadmissible, who would you think would be flagged as inadmissible?

[Richard Kurland]

There are a variety of classifications. For example, there are people who have a similar name or same name and a similar or same birth date. I'm thinking, for example, of someone with the last name Mohammed born January 1, 1985. People from some regions in the world don't have the same birth certificate documentation, and they will arbitrarily select a birth date that will be recorded in government systems. This necessarily means the system will generate a red flag for those kinds of files.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you.

You brought up an interesting aspect of how something could go wrong and someone could be completely innocent. Yesterday's witnesses actually testified that in most cases a red flag would be for criminals, people who lied, fraudulently represented themselves on documentation, and so forth.

Your particular instance brings up a good question. I'm going to ask you that question, because I think it's important. In previous sessions it was portrayed that the computer system that does the electronic travel authorization would be the final say, and that's not the case in this particular piece of legislation. In fact, unlike in the United States where there is a lengthy appeal and a huge expense, it would actually be a visa officer who would review the entire file of a person that you just indicated. Were you aware of that?

[Richard Kurland]

Even better, I've had clients go through the American system to test it out. I had to resolve their no-fly issues.

I am amazed at the efficiency and speed of the U.S. system. It's a government travel department in the United States, and you send, through their website, your documentation regarding your birth or your issue. They acknowledge it immediately. It's actioned within 24 to 48 hours.

[Roxanne James, Conservative, Scarborough Centre, ON]

So this is their version of the ETA, which we're moving to.

[Richard Kurland]

It's their system, but they have service standards that we do not.

Yes, we're on the right track. There's nothing wrong with gathering an extra layer of tombstone information like this. It makes management of government and, in some instances, private sector, easier and cheaper. It's a good thing.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you.

One of the issues that has been a significant problem is residency fraud, although the electronic travel authorization is one piece of the puzzle that we're trying to solve.

I think you've testified on border securities and biometrics and so forth, which we're moving toward. Do you think this piece of the puzzle, the electronic travel authorization, will actually help to identify residency fraud cases?

[Richard Kurland]

No, and here's why. We're already collecting the identical information in more than one Canadian system, the advanced passenger information system, for one. Residency fraud is combatted these days through the matrix of memoranda of understanding that are signed with other countries where we actually exchange case-specific information to combat residency fraud. It's easy to do these days.