[Recorded by Electronic Apparatus]
Tuesday, December 3, 1996
.1540 
The Chair: I call this meeting of The Standing Committee on Citizenship and Immigration to order. Pursuant to Standing Orders 110 and 111, we will be studying Order-in-Council appointments.
It is our pleasure to welcome today Mr. Jean Prévost, a full-time member of the Convention Refugee Determination Division at the Immigration and Refugee Board.
Welcome, Mr. Prévost.
.1545
[English]
If you have a statement you would like to read out, you can begin.
Mr. Jean Prévost (Full-time member, Convention Refugee Determination Division, Immigration and Refugee Board): Thank you very much, Madam Chair. The reason I would like to make a statement here is because my appointment dates back from October 28, and since I have very little experience in the area I thought I would make a statement that I think is a pretty good idea of who I am and my past experience.
[Translation]
When I was approached for the position, I was told that the Immigration and Refugee Board was interested in candidates with experience in areas other than legal, immigration and community activities, and that they were interested in candidates who had gained some professional experience over the years that would enable them to be good listeners, to fully analyze all facts and to make clear and specific recommendations.
I was also told that the candidate must be a team player, be impartial, tactful, mature, have a great deal of integrity and interpersonal skills. That appealed to me and I sent my curriculum vitae to the appropriate person.
So I am an ordinary citizen, not an expert. I have the necessary experience and background, the ability and interest in learning the legislation, rules and jurisprudence in order to enforce them fairly and appropriately. Thank you very much.
The Chair: Thank you, Mr. Prévost, and welcome.
We will start with Mr. Nunez. I would like to remind members that the only relevant question here, as I have already mentioned, are those concerning appointments by Order in Council. I don't think I have to reread Mr. Fraser's Standing Order.
Mr. Nunez, you have ten minutes.
Mr. Nunez (Bourassa): You do realize we have another interpretation of the Standing Order.
The Chair: Yes, but I am the Chair, at least for the time being.
Mr. Nunez: Yes, but one day you might leave us.
Congratulations on your appointment, Mr. Prévost. I read your very short curriculum vitae very attentively. I say ``short'' because you don't even mention your education.
Mr. Prévost: My what?
Mr. Nunez: Your studies, your education.
Mr. Prévost: Yes, I see.
Mr. Nunez: It does, however, say that you were Vice-President of the Liberal Party of Canada and Communications Director for the Liberal Party of Canada during the 1979-1980 federal election, which you won, and that of 1984, which you lost.
Mr. Prévost: You have to know how to win and how to lose with style, Mr. Nunez.
Mr. Nunez: But nowhere in your curriculum vitae does it say that you have any experience with immigration, refugees and ethno- cultural communities.
Since you are a communications and public relations consultant, my first question is the following: how much input did the party have in your appointment?
Mr. Prévost: This will surprise you. As I said earlier, I was approached to see whether or not I was interested in the position and whether I planned to apply for it. The person who approached me about the position has a great deal of experience with panels. It is someone who has set up various panels, who sat on the Civil Aviation Tribunal, who became president of that same tribunal and who is now Canada's representative on ICAO, the International Civil Aviation Organization.
That person thought I would be a good candidate because throughout my career, I had done a number of things, and I was asked to think about it and to send my resume if I was interested.
.1550
I answered that I was indeed interested in all issues relating to human relations, and I sent my resume. Two or three weeks later, I received a phone call from the Board's representative and I met him. I spent three hours with him. We talked about all sorts of things, then I left. After that, I received a call in October offering me the position. That is how it happened.
Mr. Nunez: Did you contact anyone from the Department of Citizenship and Immigration?
Mr. Prévost: The only person with whom I had any contact was the person who interviewed me, Mr. Jean-Pierre Gaboury, who is Assistant to the Vice-President for the Ottawa and Maritimes regions. At the time, he represented the Fairweather Commission.
Mr. Nunez: But I am talking about the department.
Mr. Prévost: No, that is all.
Mr. Nunez: Since 1994, you have been a member of the committee that selects the advertising agencies for federal departments. Could you expand on that? Are you still on that committee or not?
Mr. Prévost: No, I am no longer on the committee. But I can explain that, if you like.
Mr. Nunez: Yes.
Mr. Prévost: The government set up a committee to provide a very objective assessment of advertising agencies' applications.
Here is how the process works. You have two representatives from the Department of Public Works, two representatives from the private sector and two representatives from the relevant department. Each department has its own particular communications objectives, strategies and needs. These are generally published in the newspapers, and advertising agencies look for that type of advertisement: in Ottawa, it is the Advertising and Public Opinion Research Sector - and send in presentations on specific projects. We are part of a group that prepares the short list.
Mr. Nunez: But who appointed you to that committee?
Mr. Prévost: Again, I was called because they knew me. They knew my background and someone from the Advertising and Public Opinion Research Sector called me to say that I had been recommended to them. By whom? I don't know.
Mr. Nunez: Is it someone from the government?
Mr. Prévost: Yes, it was someone from the Department of Public Works who called me, because he knew me.
Mr. Nunez: But why in 1994 and not before?
Mr. Prévost: In 1994?
Mr. Nunez: It's written here.
Mr. Prévost: Yes, fine. I do not know. They called me in 1994. They were probably waiting for the earlier contracts to expire.
Mr. Nunez: To go back to my earlier question, do you have any experience with immigration, refugees and cultural communities?
Mr. Prévost: None. As I was saying earlier, when I was approached, I was told they were looking for people who had a background in areas other than legal, community and immigration work. That is why I applied.
Mr. Nunez: But have you ever read the Geneva Convention?
Mr. Prévost: Yes, I have.
Mr. Nunez: Have you had any training or are you getting it now?
Mr. Prévost: That's all. I read the Geneva Convention.
The Chair: He already has some training, Mr. Nunez.
Mr. Nunez: What training?
The Chair: Our committee.
Mr. Nunez: Oh, yes! You met a committee or a person?
Mr. Prévost: As I mentioned to you, I met someone, Mr. Gaboury, who was the representative of the Fairweather Committee.
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Mr. Nunez: Could you give us the name of the person at ICAO?
Mr. Prévost: Yes, if you like. Her name is Ms. Ghislaine Richard. She is the Canadian representative.
Mr. Nunez: Canada's representative at ICAO?
Mr. Prévost: That's right. She is Canada's representative at the International Civil Aviation Organization. Their new head office has just been inaugurated in Montreal. I was expecting your question and I asked her for permission to give her name just in case, and she said she would be pleased if I did. There.
The Chair: That's fine, thank you.
Mr. Nunez: As a commissioner, what will your contribution be to the Immigration and Refugee Board, since you do not have any specific knowledge of immigration, refugees or cultural communities?
Mr. Prévost: That is an excellent question. I attended a number of hearings and I realized that to be fair, and especially to be able to make a proper ruling, you must know how to listen. You must be good at analyzing facts, getting the main points and making decisions. Mr. Nunez, I have been doing that for 25 years and I am confident I will be able to do it well in this case as well. You also need good writing skills, and writing is also something I have done for many years.
Based on what I've seen, since I have attended hearings and carefully prepared cases and assessed whether I could analyze evidence, I can assure you I will be a very good commissioner.
Mr. Nunez: Why did you not mention any education in your CV? We don't know what you studied or whether you went to university, because nothing is written about it?
Mr. Prévost: It is to be humble. I thought...
The Chair: You took it out of your CV.
Mr. Prévost: That's right. You see, I thought that at some point, when you are 57, people do not remember which universities you attended, or the degrees you got no longer exist, and I thought that since I had been the president of a few companies, since I had associates in New York, since I have done business worldwide, since I had been on the board of several companies, you could just assume that I had a strong academic background.
In any case, that is what people do nowadays. The new style of CV is to be clear, brief and specific and say what you are trying to do now, and not what you did 20 years ago. That's all.
The Chair: Mr. Nunez, you can ask one last question.
Mr. Nunez: But did you go to university, yes or no?
Mr. Prévost: Yes, I went to Loyola.
Mr. Nunez: Fine.
Mr. Prévost: Thank you.
[English]
The Chair: Ms Meredith.
Ms Meredith (Surrey - White Rock - South Langley): Thank you, Madam Chair.
I'm in a little bit of a conundrum here, because I normally would point out the difficulty for somebody who has had extreme experience with advocacy groups and immigration groups to be unbiased in their decision-making process, and I find you have no background and no association whatsoever with advocacy groups, multicultural groups or what not. I find that refreshing, because we've seen a pattern of people who have come from that venue appearing on the board. I see that as a nice, fresh approach.
The difficulty I have is your connections to the government. A problem I have with boards such as this is they become patronage appointments and are a reward for your hard work and endeavours on behalf of the government party, the Liberal Party. So that troubles me a little bit.
I feel it's good that the boards need to be looking at citizens at large who bring a different concept into the decision-making process, but I want to ask you this. Do you feel your appointment is a return for your contributions to the Liberal Party?
.1600
Mr. Prévost: Let's put it this way: thank goodness many of us get involved in politics. It's not a duty, but it's a major interest. It is a way someone can contribute in a major way. I did what I did with the Liberal Party with a great deal of enthusiasm. To be a vice-president of a party, you must be proud of your party and you must be proud of your accomplishments.
If you look closely at my curriculum vitae, you'll see I haven't been involved in a major way since we lost the election of 1984. The group I was affiliated with - namely Pierre Trudeau, Marc Lalonde, André Ouellet and so on - have all left, and now we have young members of Parliament and ministers I did not know in those days, or knew very little of.
Therefore my appointment was basically based on what I described earlier. This person who had a great deal of experience in these tribunals approached me and gave me a description of what they were all about, and I felt I could make a major contribution. As a matter of fact, I feel this could be the start of a second career, and I would like that very much.
Ms Meredith: Thank you for your candid response to that. I do sincerely hope that as a member of the community at large you will bring that consideration into the determinations.
I have been concerned over the last number of years that the people we see representing the IRB particularly do belong to a venue of community that deals specifically with the refugee and immigrant population. It's refreshing to have people from the community at large to give a balance, not necessarily to always give the other side, but to give a balance to the decision-making process.
I wish you well, and I hope you enjoy this second career of yours.
Mr. Prévost: I just might add one thing, if I may. I'm approaching this with renewed enthusiasm, and it reminds me of how I felt and the vigour I had when I first started in advertising. I intend to put an awful lot of time and an awful lot of effort into this, and I hope I do a good job. I'm looking forward to it, to be honest with you.
Thank you very much.
The Chair: Mr. Dromisky.
Mr. Dromisky (Thunder Bay - Atikokan): Part of my question was addressed in the latter statement you made regarding the way you perceive this role and where you think your -
Mr. Prévost: It must be my grey hair.
Some hon. members: Oh, oh!
Mr. Dromisky: No, no, it's not the comments you made regarding the young people in the House of Commons at the present time. It's the role you have to play and how you perceive it. You've already indicated you're addressing it with great enthusiasm and you feel there's a great challenge.
You haven't had any opportunities up to this time to deal with any clients whatsoever, have you?
Mr. Prévost: What do you mean by clients?
Mr. Dromisky: Any of the people coming before the board.
Mr. Prévost: Claimants?
Mr. Dromisky: Yes.
Mr. Prévost: No, not as yet. I expect to be sitting in January. They do train and prepare us very well so that when we go in and sit and assume our role, we are extremely well prepared and very efficient. So I'm still in training, but I'm enjoying it.
Mr. Dromisky: What about your perceptions of what you thought the role would be versus what you're going through in the training? Are there any differences or great contrasts or any areas that you find puzzling?
What I'm really trying to find out is a little bit more information about your preparation for the role.
Mr. Prévost: Well, as for my preparation for the role, I've tried to describe it in here in terms of what my background was.
Mr. Dromisky: Yes, I understand that - as a universal scholar, you might say, or a man of the world with your background and so forth. But I'm zeroing in on the specific role in terms of the administrative duties, decision-making and so forth, and the kind of training you're going through at the present time. How does that compare to what you perceived the role to be?
.1605
Mr. Prévost: How I perceived the role before I went in, or how I perceive the role when executing or dispatching my work?
Mr. Dromisky: You probably had some preconceptions about the kind of role you're going to have. Now you going through a training process. Have those preconceptions you had of that future role been altered or changed in any way?
Mr. Prévost: I can see that it's a very serious court. The people I've met are extremely dedicated to the job they're doing, to the excellence of the job they're doing, and to the fairness of the job they're performing. They realize they're dealing with the lives of individuals, and I think they're very sensitive to that. But at the same time they realize that parliamentarians make the laws and the tribunal executes the law, so within their framework of reference, I think they're very conscious of it.
As I said, I've sat in on a number of occasions. I realize the seriousness of the work that I have to perform, and it's really been no surprise. My family background is a judicial one. My father was at Court of Queen's Bench and I've had uncles at the Supreme Court and so forth, so I'm quite familiar with the nature of the law itself, the nature of tribunals. I understood that this was to be very serious work, so there have been no surprises.
Mr. Dromisky: I have to clarify why I asked those questions, Madam Chair.
Mr. Prévost: I would appreciate that.
Mr. Dromisky: It's simply because the people we've had here in the past have had the kind of background Ms Meredith has been referring to. They have been dealing with special ethnic groups in the community, advocacy groups, multicultural groups and organizations and so forth. So they come in here with a certain amount of baggage, which, whether they want to admit it or not, will have a direct bearing on how they perceive their role. I find your response very refreshing, because you don't have any of that baggage. You have a different kind of background. The kind of response you gave me was interesting. Thank you.
The Chair: Ms Minna.
Ms Minna (Beaches - Woodbine): Thank you.
Madam Chair, this isn't a question to our witness so much as a comment. Initially I was going to make it with our colleague Ms Meredith, but I think I will include my colleague Mr. Dromisky in it.
Everybody in this room is a member of a multicultural community, so we all have baggage of one kind or another, regardless of what we'd like to say. Second, the fact that a person may have had a great deal of experience - as I had for twenty years in the area of settlement programs for immigrant communities - does not mean they have baggage and a bias, and therefore are not objective in the work they do. These people are professionals and intelligent people. I would suspect that understanding what this country is made up of probably helps a great deal in being able to do the analysis rather than take away. Sometimes it can turn out the other way around, because you know too much and you can decipher much more quickly where the problem is.
I just want to say that I have some difficulty with the way the other candidates who come from so-called multicultural communities seem to be portrayed at this meeting. That's all I have to say.
Mr. Dromisky: We only mean it in a very positive way.
Ms Minna: I just wanted to table that, Madam Chair. Thank you.
Ms Meredith: Everyone's entitled to their opinion.
The Chair: Thank you very much.
[Translation]
Since I would like to end at 5:00 p.m. and there are still two more witnesses, I will allow you one last question.
Mr. Nunez: I would like the IRB to request a standard CV that would include education. These CVs are sometimes very short, sometimes very long, and I think there should be a standard format.
The Chair: Yes, but Mr. Prévost told you that was the new way of doing things. May I remind you that you have already talked about that, Mr. Nunez?
Mr. Nunez: Secondly, why were you appointed for two years? Is it because you do not have many friends in the government? Other commissioners are appointed for four years.
[English]
The Chair: I am going to rule that out of order. Thank you very much.
[Translation]
Thank you very much. We wish you luck in your new position and the best of luck in the new challenge you have accepted on behalf of Canada.
.1610
Mr. Prévost: Thank you very much, madam Chair.
[English]
The Chair: Members, I need agreement on something. We're sitting through two slots on Thursday, and it was suggested that we could order a light dinner such as sandwiches. I want to be very clear to all those Canadians listening to us that it will be sandwiches for the evening of Thursday, December 5, 1996, as the committee will be sitting over the dinner hour. Is everybody in agreement? We will have witnesses from 3:30 p.m. on.
Mr. Nunez: I have a problem, because I have to leave at about 6 p.m. Why don't we have a meeting in the morning?
The Chair: We have a problem finding rooms at this time, and the only way I could do it, in order to table something in the House of Commons the following week, was to sit through Thursday. I apologize for that, and I did apologize earlier, but it's the only way we can manage to put something together to table before the House rises.
Do you all agree that we could have sandwiches?
Some hon. members: Agreed.
The Chair: Okay. Thank you.
We will now invite
[Translation]
Ms. Chantal Tie, executive director of Ottawa South Community Legal Services, and Mr. Michael Bossin, lawyer for the Community Legal Clinic. Welcome.
Pursuant to Standing Order 108(2), we are now reviewing the rules pertaining to refugees settling in Canada without any pieces of identification.
[English]
We will begin with the witnesses. Welcome.
[Translation]
Mr. Michael Bossin (Lawyer, Community Legal Clinic): Thank you for your invitation. We have a brief that is only in English. I apologize for that, but we were just informed this morning that we would appear today.
As you mentioned, we are lawyers for the Community Legal Clinic, in Ottawa. I would like to introduce my colleague, Chantal Tie.
As you know, there is a large Somalian population in Ottawa, most of whom are refugees. We met many who had been accepted as refugees, but who cannot get any pieces of identification. That is why they cannot get the status of permanent Canadian resident.
[English]
We have seen these clients suffer much hardship, particularly because of long-term separation from their families.
Last February Chantal and I, our clinics and another clinic in Ottawa, on behalf of 16 Somali persons who are in that category - refugees who either cannot get documentation, or who provided documentation which was not considered satisfactory - commenced an action in the Federal Court seeking a declaration that the provision in question, section 46.04(8) of the Immigration Act, is discriminatory and contrary to the charter. So that is where we are coming from, and we appreciate the opportunity to talk to you today.
We have three major concerns with the proposed changes to the regulation: one, that they will cause great hardship to many people; two, that they are discriminatory, and Chantal will deal with both of those issues; and third, given the current legislation in Canada, the five-year waiting period that is part of the proposed regulatory changes is not necessary.
Chantal.
Ms Chantal Tie (Executive Director, South Ottawa Community Legal Services): I would like to first emphasize that the root of the problem is section 46 of the Immigration Act, which requires what are called satisfactory identity documents. I believe the proposed regulatory change has been tabled because the government recognizes that there is a problem, and is proposing this as a solution to the problem. My comments apply to the actual statutory problem, which is section 46, as much as to the exacerbation of the problem this proposed regulation will cause.
.1615
The section itself is clearly discriminatory - that's the basis of our case - and this regulatory change does not make any difference to that discriminatory treatment. Our case involves only Somalis, but other groups are affected by the requirement for identity documents. There's no government in Somalia. Nobody can obtain identity documents. The source records don't exist any more, and there is nobody there to re-create identity documents. Many of the buildings were destroyed and all the records in them were destroyed.
Under the Charter of Rights and Freedoms, every individual, including refugee claimants in Canada, has the right to be treated without discrimination on the basis of national origin. The Federal Court has already ruled that to require specific documents from somebody in order to proceed with landing, when those documents are not available in the country of origin, is discrimination. In 1993 the Federal Court said that is discrimination. It's very clear. There's no dispute about that in law. The effect is that if you are from Somalia, you cannot be landed. That effect is discriminatory, and it's discriminatory because of where you come from, because you're from Somalia.
Other issues are raised by that effect, and that is that almost all Somalis - in fact I haven't met too many who aren't - happen to be a different colour and race. So the consequence is that we're denying landing to people who are black.
What's the disadvantage? So a discrimination is made. We're making a distinction between those from Somalia, who could never get identity documents, and those who aren't. What's the nature of the problem that's been created? Probably the most serious problem is that there is long-term and permanent separation from family members. I'll take you through an example to illustrate the extent of this.
One of our clients arrived in 1990. He received his refugee status in 1994. Under section 46, he is not eligible. He cannot be landed because he does not have an identity document. He has to wait five years under this program before he's eligible to apply for landing under the program. We are now at 1999 - assuming he was granted refugee status in 1994. If we are generous and say that it will take one year for him to get processed for landing, he's landed in the year 2000.
According to the regulatory change, he cannot be landed with his dependants unless they are here in Canada with him. That means he has to wait until he's landed before he commences his sponsorship application for his children abroad. At that point only the children abroad who qualify to be sponsored can be sponsored. That means that only those children under 19 years old at the time he is eligible to sponsor, which is in the year 2000, will be accepted.
So he left his family in 1990 to make a refugee claim, and we're now in the year 2000. That's ten years later. Any child who was over the age of ten at the time he was separated will no longer be sponsorable. So he is permanently unable to be reunited with any child over the age of ten.
.1620
At the height of the Somali crisis, the death rate in the refugees camps was approximately 25%. So on an annual basis one-quarter of the people in the camps were dying of starvation, malnutrition or other diseases associated with dislocation and refugees. Those most at risk are children, especially the ones under 10 years old.
If in fact there are some children left to be sponsored and he sponsors them, they might arrive here.... If he's processing his sponsorship application through Nairobi, which is where most of the sponsorship applications for Somalis are processed, he is looking at an average processing time from the time he submits his application - it's sent to Vegreville and sent back to Nairobi, which opens the file approximately six to eight months later.... He's looking at a minimum of two to three years before his children are issued visas and can arrive in Canada. So we're talking about thirteen years under this legislation before this man can be reunited with what might remain of his family.
So we have several discriminatory effects aside from what may happen here in Canada. When a refugee is here in Canada and they are not landed, they have a special SIN number. It's very difficult to get employment, they are not eligible for student loans and bursaries, and they are not eligible to start small businesses in order to support themselves. So there are long-term effects on the refugees who are here in Canada - long-term psychological effects, economic effects and others.
All of these hardships are being inflicted upon Somalis. All of them are being inflicted because there is a problem with section 46 of the Immigration Act, which is discriminatory in itself.
In closing, I would like to remind the committee that in our opinion this law is clearly discriminatory, and it's discriminatory on its face. The Federal Court has told us that. I believe the government has a positive obligation not to enact legislation that is discriminatory. It should not leave it to the vulnerable groups who are the victims of that discrimination to bring challenges in the courts to strike legislation down. Taxpayers have a right to expect that their governments will obey the law and not force people to resort to the courts to make them obey the law.
Mr. Bossin's going to deal with whether -
The Chair: Mr. Bossin will only have three minutes, because I really want to give time for questions. Thank you.
Mr. Bossin: I'm going to talk briefly about this five-year waiting period. I want to address the government's justification for imposing the five-year period, and why I don't think it's necessary.
In its own statement the government says it wants to strike a balance between providing protection to people and safeguarding ``Canada and Canadians against those individuals who would abuse Canada's generosity by concealing their identities in order to hide a criminal past.'' The government says it wants an opportunity to detect those with histories of criminality and human rights abuse. As well, the five years allows those refugees to establish their ongoing willingness to respect the laws and norms of Canadian society.
I want to point out that we share those goals. We are not in support of abuse. We think criminals and people who are human rights abusers ought to be kept out. But is it necessary to make undocumented refugees wait five years in order to ensure that Canada is protected from such individuals? There is an implication in this regulatory change that if we grant permanent status to undocumented refugees, we are somehow giving them a shield and can no longer expel them, that we cannot address those who have lied, who have histories of human rights abuses, who are criminals.
Nothing could be further from the truth. In our Immigration Act there are provisions in place that allow for the removal of persons in every one of those circumstances, even if they are landed. So if someone lied about their identity and who they are when they applied for landing, even if they're landed, we can take them to inquiry and deport them. If they were a senior official in a government such as Afghanistan or Somalia where there were gross human rights violations, even if they were landed we can send them to inquiry and we can deport them. If they have a criminal past they did not disclose, even if we land them it doesn't protect them because we can still send them to inquiry and deport them.
.1625
In respect of our laws and norms, if we grant them landing and then they go out and commit a serious criminal offence in Canada, they're not protected by being landed: we can still put them into inquiry and deport them.
So why are we denying all of these people landing? Why are we making these people, 80% of whom the minister herself acknowledges are women and children, all suffer? What is the rationale for that? In my submission there is no rationale. We can land them all and we can still get rid of the bad apples; we can still do whatever we want to get rid of those who lied, who have a criminal past, or who somehow misrepresented themselves. Our submission is why make everyone suffer on that basis, for that rationale? And our submission is that there is no rationale.
The Chair: Thank you very much.
[Translation]
Mr. Nunez, you have ten minutes to ask your questions.
Mr. Nunez: Thank you for your brief, which was most interesting. You are very familiar with the problem and I think you have some practical experience with it.
You met Somalians who were claiming refugee status. You can give some very specific testimony, which you did today.
You raised a number of problems that are of concern to the Bloc Québécois, namely the five-year waiting period and the fact that the Criminal Code and Bill C-44 already have provisions to stop criminals from entering Canada and to expel them from Canada if they commit crimes here or if they did not provide all the required information when they entered Canada.
Your assessment of this situation is very accurate. But what do you suggest?
[English]
Ms Tie: I'll take that. First of all, I think it's very important to remember that these are not people we don't know; they are people who do not possess a piece of paper. I have extensive experience at the Immigration and Refugee Board, and even at expedited hearings the issue of identity is always before the board. In fact, at expedited hearings, when there is clear evidence of gross persecution of a particular group, identity is often the only issue. Many of the claimants have other ways of proving who they are. Having a passport is not the only way by which people prove who they are.
The fact is that until 1993 we didn't require people to have a passport to be landed, so this is a purely self-created problem. One of the claimants who has not been landed has seven brothers and sisters, all of whom are Canadian citizens, and who can clearly identify this person and prove who they are. It's not a question of proving who you are, but it is a question of having a secondary document that indicates who you are. So there are many ways to prove who you are. The government has been inflexible in accepting those ways, and I think the government needs to interpret the section in a much more flexible manner to provide for other means of proving their identity or to accept the other means of proof that are available.
[Translation]
Mr. Nunez: Am I to understand that you are against all regulations?
[English]
Ms Tie: No.
Mr. Bossin: I don't think we are opposed to people, as in the regulation, having to sign a declaration concerning their identity. That I think is a way whereby if later information comes forward that this person is not who he or she says he or she is then there is a sworn statement that has been contradicted by other evidence or information.
.1630
The problem that exists in Canada is there are certain people who come from certain countries who cannot, simply cannot, obtain documents. That's been recognized in this regulation. What do we do with them? We think there ought to be some way, some safeguards such as swearing a declaration. We're not opposed to that. What we're opposed to is this five-year waiting period. We see no point in that. We see no rationale for that.
Ms Tie: I have a great deal of difficulty with the five-year waiting period. Is it the minister's understanding that a war criminal is going to be caught shoplifting and we'll suddenly know who they are? It is totally irrational. There is no connection between.... After five years have elapsed, how is it that we suddenly know who this person is and we can land them? I don't understand the connection. I have a great deal of difficulty understanding this.
[Translation]
Mr. Nunez: With regard to section 46 of the Immigration Act, which you said was discriminatory, what is the federal court view on it? Is it before the Supreme Court or just before the Federal Court? What have they said and in which cases?
[English]
Ms Tie: There's a case called Menghani in the Federal Court Trial Division in which a potential immigrant to Canada was required to produce a particular high school leaving certificate that was unavailable in India. He was not able to produce it. He took it to the Federal Court and the Federal Court said that requiring somebody to produce a piece of paper that is not available in their country of origin is discrimination on the basis of national origin.
They said quite clearly in the Federal Court decision that they have to look at what's the objective. If the objective is to establish that this person went to school, then there are other ways to establish it. If the objective is to establish the person's identity, as in this case, then there are other ways to establish identity. That's the point we're trying to make.
[Translation]
Mr. Nunez: But the case did not get to the Supreme Court.
[English]
Ms Tie: The government didn't appeal the decision. There was no appeal of the decision, so it is the law.
[Translation]
Mr. Nunez: Everyone accepts passports, but if you go a little further, what do you feel would be an acceptable document?
[English]
Ms Tie: There has been a bit of a problem because the act actually says ``other satisfactory identity documents''. However, since 1993, when that section came in, it appears to be that all the Somali cases were placed on hold because there was no policy for Somalis. In our case, half of our claimants have what we claim are satisfactory identity documents. They have certain things like cartes d'identité from Mogadishu, which are original documents. They have medical diplomas, which are original documents. All of this documentation is not being accepted, whereas in my experience they are accepted for other countries.
The other half of our claimants, the other six, have absolutely no identity documents. So since the passage in 1993 of section 46 we have a dual problem. First, the law doesn't seem to be applied fairly to those refugee claimants from Somalia who do have identity documents. Second, there are a large number who don't have any at all. So there's a two-pronged problem.
[Translation]
Mr. Nunez: That regulation applies only to Somalians and Afghans. Do you know what the situation is with Afghanistan? Is it the same problem? What is your view on it? Is there discrimination? Should it apply to every country where the problems are similar to those in Somalia? What is your view of the situation?
[English]
Mr. Bossin: I think the Afghans have the same problem as the Somalis. In fact, there are any number of reasons why sometimes people cannot get documents from their own country. Typically, refugees are afraid of the authorities in their own country and often cannot ask the authorities for a passport, for example. Sometimes there are no family members back home. There is civil strife in many countries beyond Somalia and Afghanistan, which make it very difficult for people to obtain documents. In a way, the government says this is a benefit to Afghans and Somalis. I think the Afghans and Somalis think, ``No, thank you; we're not really benefiting from this because we now have to wait five years.''
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It's a very arbitrary list they've made. I think the fact is that this can arise tomorrow in country X, which we don't know about, and those people will be put in the very same situation. I think that one has to have a rational case-by-case approach to these situations and ask if in this case it is possible or impossible to obtain the document. If it's not possible you cannot make it an absolute requirement that the person produce the document. That's what the court said in Menghani. We just think there's a fundamental unfairness there. I think all of these cases have to be approached with an open mind and a fair mind. These arbitrary five-year rules that only apply to this country and this country frankly to me don't make much sense.
Ms Tie: I think it's also important to remember that because the two groups included here are the Somalis and the Afghans, if they are landed pursuant to this regulation they lose forever the right to sponsor those children who they could have sponsored if they had been landed according to when they filed their application for landing. They lose that right forever if they age. Because nothing's happened for three years they're already aging.
The Chair: Ms Meredith.
Ms Meredith: I want to ask you some questions but I also want to challenge some of your answers.
You implied rightly or wrongly that this regulation, this approach by government, is discriminatory directly towards Somalis who happen to be a different colour, and that all Somalis are prohibited from coming into this country and being landed. I hate defending the government, so this is really hard for me to do, but according to the numbers given this morning there were 808 persons in 1995 who did have documentation and were landed. In 1994 there were 451. In 1996 there were 213. So I think it's unfair of you to make that kind of general broad statement when there are those coming from Somalia with documentation.
But having said that, I want to get an idea from you as to what documentation the government is not accepting. My understanding from this morning's meeting with the officials is that a good number of people coming from Somalia and Afghanistan don't have documentation when they arrive in Canada. How do they get to Canada without travel documentation? There are no direct flights from Somalia to Canada or from Afghanistan to Canada. They are obviously travelling through several countries to get to Canada. How do they travel if they don't have documentation?
Ms Tie: It is very common to use false documents to arrive here and then to acknowledge when they make a refugee claim that they used false documents.
Ms Meredith: So the fact they are arriving with false documents.... My understanding from this morning's conversation is some do arrive with false documentation but a lot arrive with no documents. Even false documents would give the Canadian authorities an opportunity to track to see whether or not this individual originated from Somalia or from a country under turmoil, as opposed to some other place. So I can see their concern when people arrive without any documentation, which does not allow the Canadian authorities to track where these claimants are coming from and whether there is a valid argument for their claim as refugees seeking protection.
Mr. Bossin: Using Somalia as an example, a typical situation is people will travel without documentation by land or by boat from Somalia to Kenya. So they arrive in Kenya without any documents at all, and in Kenya they will purchase a false document - be it of any nationality - that will get them to the United States or get them to Canada. Even if you could trace this back to wherever that false document was purchased, it really does not answer the question of nationality.
This issue comes up when all these people make refugee claims and often the examination of these individuals is exhaustive as to how they can establish who they are and where they come from. There are ways. I've seen people questioned about Mogadishu and all sorts of aspects of Mogadishu, for example, and aspects of Somali life that only a Somali would know. It's not a passport, but it is a way after hours and hours of questioning to make a valid determination as to whether or not this person is who he or she says they are.
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I think both of them accept that this raises security concerns when someone arrives at Canadian borders without any valid documentation. But I think we question whether or not the process that has been set out in this regulatory change really addresses that concern.
Personally, I don't think it does do that. I think it puts a lot of people in great hardship and doesn't change the situation one bit for those bad apples we want to keep out.
Ms Meredith: But if you're not going to require some documentation or proof that the people are who they say they are, how are you going to know who might be using the terrible tragedy in Somalia as a vehicle for getting in?
I say that from a personal concern. An individual spoke to me of a concern. This individual had contact with a person from Djibouti who had a Djibouti passport - it was shown to them - but was here as a Somali refugee claimant. I was informed that there were a number of them; this individual wasn't the only one.
So is it unfair of Canada to expect people to show some record? I'm a little concerned that they're not accepting other documents, such as birth certificates, medical records or certificates, or school records. These are things that a person may have as the possessions they're taking with them that would show a background. Is none of that accepted?
Ms Tie: The second part of your question indicated that you heard there were 808 who were landed in 1995, and 213 in 1994.
Ms Meredith: With documents.
Ms Tie: Yes. There have been sporadic landings. The section refers to other satisfactory identity documents. But given the number in the backlog, it's almost insignificant.
I can tell you that after we launched the charter challenge in February 1996 we heard that there actually had been more landings. In fact, as for the claimants who were in our action, their files suddenly got looked at after they hadn't been looked at for three years. I don't think that's insignificant or unconnected.
Ms Meredith: What documentation do people have that the department is not acknowledging?
Ms Tie: For all of the six claimants we have in one of our applications, we have marriage certificates, birth certificates, Mogadishu identity documents and land title deeds for property in Mogadishu and in Somalia in general. We have a whole variety of identity documents that nobody yet has said are false or falsified. These are documents that have been presented to immigration officials and that have not been accepted.
I would ask you, do you have your passport on you now? If some catastrophe struck and you had to flee Canada, would you have your birth certificate on you?
Ms Meredith: Yes, but -
Ms Tie: You do? I don't.
Ms Meredith: No, I don't have a passport. I do have a birth certificate on me.
Ms Tie: Is your passport current?
The Chair: Ms Meredith is doing the questioning.
Ms Tie: That's a general question.
Ms Meredith: But I'm asking seriously whether these documents have to be a passport or a travel document. That's what I'm trying to get at: which documentation is good and which documentation is unacceptable?
You say marriage certificates and all these things are unacceptable, but those are the things that are more likely to tell somebody who they say they are, rather than some forged passport or travel document.
Mr. Bossin: The Immigration Act says it should be a valid passport or other satisfactory identity document. It's a question of how that second phrase has been interpreted.
So you will find cases in which people will have presented marriage certificates that have been accepted. But you'll find other cases in which a marriage certificate has been presented, but for some reason, the officer did not find that acceptable.
There are no guidelines to define the term ``other satisfactory identity document''. So you find inconsistencies in the law and how it's applied.
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I just wanted to, if I could, respond to another point you made. Yes, there will be people who abuse the system. Your example of the person from Djibouti who posed as a Somali is a good example. But let's assume for argument's sake that this person was accepted as a refugee and then even landed. Then it came to light that this person was from Djibouti. We, as a country, can still take action against that person. Having made that person and every other innocent, genuine Somali wait five years served no purpose whatsoever.
So even in your example, if it comes to light, someone finds out and someone informs you that the person has landed, they're still not protected. We can still take action against that person. That, I think, is our point here.
Ms Meredith: The government officials this morning said that the reason they singled out Somalis and Afghans was because of the number. Large numbers of people are arriving without substantive documentation. I think that's why they have singled out those two countries of origin for this treatment. You can look at the transcript of this morning's meeting.
I have difficulty with the way they're handling it for several reasons. First, I think it is sending the wrong message worldwide. If they say no documentation is required and this whole program is sitting there, then it's sending the message to other countries that maybe this is a way in which to manipulate the system.
My feeling perhaps is that the easiest way is for the government to acknowledge that we have these numbers. These people are here, and we want them to integrate into society. We should give them landed status and get on with it, but we shouldn't open up a whole new aspect of immigration regulations implying that coming to Canada without documentation is not a serious matter.
So I'll leave that with you. I think you'd have to go into the transcripts from this morning to see the reasoning for that. Thank you.
The Chair: Government members, do you have any questions? Mr. Dromisky.
Mr. Dromisky: As for the statements you made regarding discriminatory practices regarding a specific group, would you say that it was also true for other groups that, as you implied, are of a certain ethnic background or colour?
Ms Tie: We argue in our case that it's discrimination on the basis of national origin, which on its own is prohibited by the charter. I was just merely indicating that if one looks at the affected group to see who is actually affected, one could argue that there's a significant adverse affect on a racial group as well.
The primary thrust of our case is that it's discrimination on the basis of national origin. So if in anybody's country of origin you can't get a passport or documents, then it would be discrimination against that person. That's if it's beyond their control and has nothing to do with them. It has to do with the situation in the country.
Mr. Dromisky: Thank you.
The Chair: Ms Minna.
Ms Minna: I just wanted to clarify the section of Bill C-86 that deals with the discretionary aspect of documents. In your experience of the cases you've seen, is there a fairly wide gamut of documentation that at one time or another has been accepted as being satisfactory, or is there a narrow band of documents that are generally accepted as satisfactory in addition to passports or in place of them? I'm just trying to get a handle, from your perspective, on how that area is normally applied - you said you had some cases already - and how in this case the same wide band hasn't been applied.
Mr. Bossin: What the government officials are looking for is something that shows your name and nationality. Many documents, your driver's licence for example, do not necessarily show which country you're from. In some cases maybe it will, but in many cases it won't. Those are the documents that are problematic.
Take school certificates. Yes, this is my name. This is the name I used when I made my refugee claim. But the school certificate doesn't necessarily say that you are a citizen of a certain country. The only documents that really do that are birth certificates and passports. Once you go beyond that, you get into this discretionary area.
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My experience is that it really depends on every individual case. There are some officers who will accept something and others who won't. My experience in the case of Somalia is that for a while everything was suspect. For a while the government put up its hands and said ``Whoa! What are we going to do with all of this?''
The other reality is when the government says you can't be landed unless you produce some documents. There are people who are going to get false documents, because they think there's no other way they can prove who they are, which is also a problem. That's what happened in the case of Somalia. After a while nothing was acceptable.
Ms Tie: It also ties back to the fact that there are no source documents left. In almost all other cases, when refugees come to Canada they may come with false documents, they may come with no identity documents, but they can get them because they can write or call home and someone can send them. There is no one at home for these people. There's no way to get them, because of the total devastation in Somalia. That's why there are so many Somalis without documents, because they haven't been able to get them once they have arrived here.
The Chair: If Ms Bethel doesn't have any questions, I have one.
You made a presentation saying there are only a few bad apples, and that's an important point that you underline in your document. But to get rid of the bad apples, do you perhaps have a suggestion in terms of another process? For instance, you made it sound as though you could easily deport anyone if it is found they've been a security risk or a criminal in this country. I don't think it's that easy.
You didn't talk about the fact of stripping people of their status and so forth, which is not necessarily an easy process in this country. We do have, again, the Charter of Rights and Freedoms that may also protect them in the long run in terms of our stripping them of their refugee status or their permanent resident status. I'd like you to clarify this in the sense that you made it sound as if it was really easy to strip people of the status they've acquired in this country.
Mr. Bossin: The government has made it easier, because when people commit serious criminal offences, you've made it more difficult for them to appeal.
Starting an inquiry is not, frankly, a very difficult procedure, whether you're a landed immigrant or not. Going on to the inquiry, the proof of whether someone committed a criminal offence here or abroad, is the same whether someone is landed or not. The evidence is the same; the process is the same. The only difference comes with respect to the appeal rights. But if you're a convention refugee, you have appeal rights as well, just as if you are landed. I'm not sure the difference is very much at all.
Ms Tie: It's also not very difficult to go back to the Immigration and Refugee Board. If the government determines that someone is not who they said they were and they were granted refugee status on that basis, it's not difficult to go back to the IRB. It's a simple procedure. You can invoke a hearing and serve a notice on them, and they have to appear. If they're not who they said they were, they can very quickly be stripped of their refugee status.
Mr. Bossin: Our point is there is a provision in this act to get out the bad apples. If you don't think it's strong enough, by all means, go back and strengthen it. But this is pretty strong, as far as I'm concerned. I've seen a lot of people...and inquiries are being held every day for landed immigrants who misrepresented themselves or who committed criminal offences. They're being ordered deported.
I'm sorry, but I don't accept your statement that it's not that easy. It's happening all the time. If you want to put more money into enforcement, then it will happen even more easily. There are provisions in this act that give you the power to do all of this. All we're saying is that landing these people does not prevent it from happening.
Ms Tie: It's also important to remember that as far as we're aware, all the cases of war criminals who have come to this country and who have been found to be refugees have later been exposed to immigration officials by the Somali community, who don't want their persecutors in their midst.
The Chair: I have one more question. Were you consulted at all before the regulations were made public?
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Ms Tie: We, personally?
The Chair: Yes.
Mr. Bossin: Do you need help with this?
It's fair to say that there have been consultations for years with the Somali community. We don't come here as representatives of the Somali community necessarily, but we we were not consulted.
Ms Tie: We weren't consulted, but I understand the Somali community was, and this was not one of their proposed solutions.
The Chair: Thank you.
Mr. Nunez, we still have a few minutes.
[Translation]
Mr. Nunez: Fine.
If I understand correctly, section 46 could be contested in court. As lawyers, would you also be able to contest that regulation because it would violate the Canadian Charter of Rights and Freedoms if it were passed as is?
[English]
Ms Tie: Yes, you can also take regulatory changes to the courts if you want to. You can test them.
I should indicate there's a good deal of litigation going on right now over what is and what isn't a satisfactory identify document. There are a number of cases pending before the courts, fighting the issue out of what is a satisfactory identity document. In most cases the government is taking a fairly strict line on what is a satisfactory document. I understand there is a recent Federal Court decision that says a statutory declaration or an affidavit should be satisfactory. We haven't seen any of those accepted yet by the immigration department.
[Translation]
Mr. Nunez: Do you think this regulation is consistent with the Geneva Convention on Refugees?
[English]
Ms Tie: There are serious problems with this regulation when it comes to other international conventions, such as the one on the rights of the child. There are serious problems with separating children from their families for what can be more than ten years, and those are in violation of our international obligations.
I think the UN convention recognizes very clearly that many refugees come undocumented. There's an encouragement to member states to provide identify documents to those people and to promote their integration into Canadian society. This regulation does not do that in any way, because it creates a class of people who are being treated differently, with significant psychological and emotional and economic problems.
The Chair: Ms Meredith.
Ms Meredith: Thank you, Chair. My question actually is for you. I would appreciate if the committee would request from the department a list of what they would accept as acceptable documents.
The Chair: Certainly.
Ms Meredith: In our discussions we need to know why some are okay and some aren't and the reasons why they may not accept some of the documents.
Ms Minna: I already made that request.
The Chair: The point was made that there are also large discretionary powers in terms of the officials and what they can or cannot accept as documents. So we may not see all the list for that matter.
Ms Tie: There are no guidelines, so it's completely ad hoc, and it's a problem. We have documentation written by department officials who say they're not accepting any documents at all from Somalia. So if that's the department's decision, which it clearly isn't, because some are being landed.... That's what their officials have written to our clients: nothing is acceptable from Somalia but a passport, and sorry if there's no government to issue one.
The Chair: Clearly that has changed, considering the fact that these regulations have come in.
I'd like to thank you for coming before the committee, Ms Tie and Mr. Bossin.
Members, thank you. We'll see you on Thursday, at 3:30 p.m. in Room 269 of the West Block.
This meeting is adjourned.