Evidence of meeting #28 for Public Safety and National Security in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was gps.
A recording is available from Parliament.
Conservative
Rob Moore Conservative Fundy Royal, NB
Thank you, Mr. Chair.
Thank you, Ms. Jackman, for your testimony.
With the three individuals you were representing, other than the technical breaches that you mentioned can occur with the monitoring, were there any other serious breaches of their conditions—breaches you would consider serious—over the term of their monitoring?
Immigration and Refugee Lawyer, As an Individual
None whatsoever.
In fact in the case I'm still involved in, the security certificate case, the government has conceded that.
Conservative
Rob Moore Conservative Fundy Royal, NB
I'm trying to reconcile something. You mentioned that in some cases this can be crueler than detention, yet our previous witness from Correctional Service Canada said the only way the electronic monitoring works in some conditions is that the consequence of a breach of one or more of the conditions of the electronic monitoring is a return to detention. The threat of a return to detention is what these individuals are fearing and why they are maintaining the conditions of their electronic monitoring. Can you reconcile that for me? It seems as if certainly for your clients and the individuals that Correctional Service Canada was following in its pilot project, the threat of detention was there and they chose electronic monitoring over detention. Can you reconcile that?
Immigration and Refugee Lawyer, As an Individual
I think most people would choose it over detention, but it depends on what's with it. If you put a GPS on a kid and say we'll let you out as long as you're home by 11 o'clock, and there's a non-association clause or something, the GPS is going to tell you that the person is home by 11 o'clock, not who they're communicating with. So it has limited value, but in that case it may not be oppressive. However, even then, I think it should be on a short period of time, and in that case the people don't call every time they go in or out of their house to let someone know where they're going.
In our cases it was coupled with other conditions, so they were under house arrest, they could only go out with a supervisor, they had to call CBSA every time they were going, and initially they had to get approval from CBSA to go out. So there was constant contact with government officials, and that interfered with family life. For example, they wanted to go grocery shopping and CBSA said not now; they wouldn't tell them this, but it was because someone reported sick or something so they couldn't go shopping. The kids saw it as penalization of them.
So it's more than one thing.
Conservative
Rob Moore Conservative Fundy Royal, NB
Those sound like a lot of other conditions that are extraneous perhaps to the discussion we're having on electronic monitoring. No one said being subject to a removal order or being someone who is out on conditional release would be a lot of fun. Obviously it's pretty serious consequences. Detention is one of the options, but it seems pretty clear to me that this allows people to be in society with their family, yet closely monitored. In the cases the previous witness cited, as well as the case of your three clients, there were no major breaches. So I would look at those as successes.
Now you mentioned there are instances where you see the use of the electronic monitoring as being quite useful, and you used as an example to keep pedophiles from parks or places where they're not supposed to be. Can you elaborate on why you see that as a useful use of this tool?
Immigration and Refugee Lawyer, As an Individual
It's because in those cases there are specific geographic areas that you can mark on a map, and then you can track the person. If they go near those areas, you know they're in breach. In that kind of instance, there's a purpose to it. I think with kids who are hanging around with gang members at night, curfews can be useful, and that's a way of ensuring the curfew is met.
I'll give you an example. The CBSA started voice reporting. So instead of people having to report weekly or monthly to the CBSA office in person, they will do voice reporting. What the CBSA has done, because voice reporting is simple, is they're doing it to everybody. Everybody is getting called in, even though no immigration judge has imposed that as a condition on them, because they can do it. What will happen with GPS—because this has happened every other time—is that they will end up using it for people where it's not needed. I think you may make a case for needing it with kids who are involved in crime, or with people who are mentally ill, or with pedophiles, but you can't make a case for it's being needed with most people. Most of them are law abiding, they'll comply with conditions, and they have no criminal record, so why are you putting it on them? I don't understand.
Conservative
Rob Moore Conservative Fundy Royal, NB
Thanks, Ms. Jackman.
I don't think the argument is to make it apply to everyone, but we are looking at instances where this would be appropriate.
If someone doesn't call in and they decide to avoid their next mandatory appointment, how do we know where they are without electronic monitoring?
Immigration and Refugee Lawyer, As an Individual
Officers tend to find people quite quickly—a lot of them.
You'd have to look at the stats. For sure there are people who have gone underground, and that may be a problem. In those kinds of cases, if you think this might be the kind of person to go underground, then a GPS might be useful in that instance, but not across the board. As I said, it should be for a fixed time.
Say someone comes in and makes a refugee claim. It's a family. You know the country they're coming from has really bad conditions. You're concerned at the end of the day that they might be afraid to go back, even if they are found not to be refugees. If you think a GPS would be useful, put it on them at the end of the process when they have to make the pre-removal risk assessment application, not for the whole five years they're in Canada. Limit it to the time that you think it's needed.
Again, it should be justified. It should be before an immigration judge, not a CBSA officer arbitrarily deciding to impose it. It's too intrusive.
Conservative
The Chair Conservative Kevin Sorenson
Thank you very much, Ms. Jackman.
We'll now swing back to the opposition. Mr. Scarpaleggia, please, for seven minutes.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
Thank you, Ms. Jackman.
Could you be a little more precise when you say a Canada Border Services Agency officer can arbitrarily slap a GPS on somebody? I was a little surprised to hear that. I thought it would be a higher-up decision.
Immigration and Refugee Lawyer, As an Individual
I was saying it should be a higher-up decision.
The thing that concerns me right now is that the CBSA officers are imposing voice reporting on people without going before an immigration judge and asking if it's necessary. They're calling everybody and anybody, without any basis for it. They're just calling everyone.
That's what concerns me. That's one of the concerns about the GPS.
If it's going to be there as a mechanism, it has to be through the immigration division, through a judge making a decision.
Liberal
Immigration and Refugee Lawyer, As an Individual
No, I represent Mr. Jaballah. I did in the past represent Mr. Mahjoub and Mr. Almrei.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
You have a couple of clients who are on security certificates, and on a GPS as part of their conditions for release from detention. Is that correct?
Immigration and Refugee Lawyer, As an Individual
Yes. At the moment I have one client who is still on a GPS.
Liberal
Immigration and Refugee Lawyer, As an Individual
Yes, come April he will have been on it for five years. He's married and has six children.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
He's on a security certificate, which means the government authorities feel he is a risky person, someone who needs to be kept track of.
You feel he should have his GPS taken off and replaced with nothing; maybe he would be required to report every now and then. Am I correct? Is that your position?
Immigration and Refugee Lawyer, As an Individual
No, I'm not saying that. There's a significant amount of money tied up by sureties in his case, both conditional and cash. Sureties are the traditional way of ensuring that people comply with conditions. For instance, if your wife puts up $10,000 and you know she doesn't have $10,000 to lose, the premise is the person is going to comply so as to not cause the wife to lose the money.
That's why we have sureties, and there are other means of making sure that people comply.
In my client's case the chief concern was that he could be a communications relay with others who are alleged to be involved with Muslim or Islamic extremists. The key concern is communication. The GPS doesn't address that need. I mean, how do they know who he's communicating with?
What they have is a phone intercept and a mail intercept. That's much more effective than the GPS in terms of knowing who he talks to.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
So they do have a phone intercept and a mail intercept.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
Do you keep going back to court every so often to ask that the conditions be changed, that the GPS be taken off for the reasons you've given us?
How does that process work? Are there periodic reviews?
Immigration and Refugee Lawyer, As an Individual
There are periodic reviews every six months after the last decision, so it's usually about once a year. One of the judges, Justice Dawson, characterized it as a review that, with the person complying, would be cascading towards more fuller liberty than they started out with. It hasn't worked out that way. The conditions have been relaxed over time, but they are extremely restrictive still.
Liberal
Francis Scarpaleggia Liberal Lac-Saint-Louis, QC
You're familiar, obviously, with Bill C-4, which has now been incorporated into Bill C-31, the new immigration bill. Under Bill C-4, one could envisage groups of refugees being in detention, perhaps for as much as a year, as I understand it. Would you see that maybe in those cases where, for example, you have a family that's in detention, short-term electronic monitoring would be a way to keep them out of detention? Do you think the government might go in that direction?
It has been raised in the media that instead of keeping people in detention they could maybe be monitored for a while. Would you be in favour of that? Would you see that as cruel or would you see that as better than being in detention for up to a year?
Immigration and Refugee Lawyer, As an Individual
You're being asked...it's between apples and oranges. They're both bad. As for the year detention, we worked for years, before we went up to the Supreme Court of Canada in Charkaoui, to get rid of the arbitrary detention. We won in front of the Supreme Court of Canada. They said you cannot have a detention without a review. There has to be a review of the need to detain.
So what does the government do? It now proposes a new law that puts people in detention without a review of the need to detain. It's like a slap in the face to the Supreme Court of Canada in terms of its judgment in Charkaoui. You should look at that judgment.
Asking me if it is better to have a GPS than to keep people in jail for a year...if they're not needed in either instance, there's no way I'm going to say yes to that. Unless it's justified that there is a need for a GPS or a need for detention, I don't support either. It's wrong.