PREFACE

On December 8, 2011, the Committee determined that a security study regarding the immigration system was necessary. The Committee decided to study what actions the Government has implemented or what plans should be taken to enhance the security of Canada’s immigration system, as well as what gaps exist, and provide recommendations to the Government as to what further actions should be taken to improve the security of Canada’s immigration system. From February 14 to December 3, 2012, the Committee heard from numerous witnesses on the topic; they brought a wide range of views to the issues. The Committee wishes to thank all witnesses who took the time to appear before it.

During the period of this study, the Committee reviewed three bills relevant to the study’s terms of reference: Bill C-31, now the Protecting Canada’s Immigration System Act, Bill C-43, the Faster Removal of Foreign Criminals Act and Division 16, Part 4 of Bill C-45, the second budget implementation Act.

The Committee travelled to Vancouver, Montréal and Toronto to see the conditions in the Immigration Holding Centres (IHCs) and in one provincial correctional facility (Rivière-des-Prairies). The Immigration and Refugee Board of Canada (IRB) in Toronto provided the Committee with an overview of detention review during which the reasons for continued detention are evaluated.

INTRODUCTION

The Committee wished, with this study, to understand what policy and programs are in place to ensure the security of Canada’s immigration system and to provide recommendations if any gaps were found. Citizenship and Immigration Canada’s (CIC) mission is to develop and implement policies that will facilitate the arrival and integration of people while ensuring that Canadians’ health, safety and security are protected. [1] Since 2003, the Canada Border Services Agency (CBSA) shares responsibility for the enforcement of the Immigration and Refugee Protection Act (IRPA). During this study, the concept of security in the immigration system went beyond the notion of identifying individuals who may pose a threat to Canadian society. Protecting the security and integrity of the immigration system was a key theme throughout the study. The Committee heard testimony and recommendations to strengthen the immigration system which most believed to be open to levels of abuse. Witnesses were asked to describe the current situation, with questions also addressing specific topics such as biometrics, war criminals, security clearance checks, border security, visas, detention and removal.

A. Current process

When an individual applies for a visa to come to Canada, an immigration officer must review the information provided against criteria that would determine whether that person should be refused entry into Canada. Required information in the forms includes previous travels, previous requests to travel to Canada (and the outcome), information about siblings, convictions and employment. All of this information is assessed and cross-referenced by the officer to ensure that there is no misrepresentation and no grounds to refuse entry into Canada. The next steps involve security clearance checks: the Royal Canadian Mounted Police (RCMP) and the Canadian Security Intelligence Service (CSIS) assist CIC and the CBSA to perform criminal and security checks when requested. Depending on the type of visa, medical checks, proof of language abilities and financial assets are also examined. A selection decision is eventually reached, (often under exceptional circumstances after an in-person interview) and, if the applicant meets all the requirements, a visa is issued. The final decision to issue a visa rests with the immigration officer.

Sections 34 to 42 of IRPA detail serious facts in a person’s history that render a foreign national’s entry into Canada unlikely.[2] They include concerns regarding security (which includes espionage and terrorism), violation of human rights (which includes war crimes), “serious criminality” and “criminality”, organized criminality, health grounds, financial reasons, misrepresentation, non-compliance with the Act and being a family member of an inadmissible person.

The CBSA also examines the person arriving at the border and has the authority to deny that person entry if he or she has become inadmissible since the visa was issued. The CBSA is responsible for the detention and removal programs.

The CBSA detains individuals if their identity is not established upon arrival, they constitute a danger to the public, or they pose a flight risk when facing deportation.[3] Currently the CBSA operates three detention centres: one in Vancouver, one near Montréal, and one in the Greater Toronto Area. All other detainees, either high-risk or where there are no IHC, will be held in provincial jails when they must be detained for more than a day, as per various agreements. After 48 hours, the Immigration Division of the IRB must review the reasons for detention and assess if any alternative can be found, such as release with terms and conditions or release under the supervision of a guarantor.[4] If the IRB determines that detention should continue, the decision must be reviewed after 7 days and then every 30 days.

When a foreign national or a permanent resident suddenly is no longer welcomed in Canada, the CBSA asks the IRB to hold an inadmissibility hearing. The Immigration Division of the IRB may conclude with the Board member ordering the removal of the individual.

There are three types of removal orders: departure orders, exclusion orders and deportation orders.[5] They differ in their consequences. A person with a departure order who complies with the order may return to Canada without seeking authorization. A person with an exclusion order must ask for an authorization to come back within the year or can come back without authorization after two years (except for those who committed misrepresentation). A departure order that is not respected will become a deportation order, after which an authorization must be obtained if the individual wishes to return to Canada at any time.

A key issue identified in this study was that Canada does not keep track of visitors exiting its territory. However, in the case of removals, individuals are instructed to identify themselves at the airports and border crossings so that their departure can be verified and recorded in the CBSA database.[6] Unfortunately, in the case of voluntary departures, not everyone complies nor understands the significance of this measure so it is impossible to tell how many people are still in Canada when they no longer should be. In cases where the person is a fugitive or a danger to the public, the removal will be enforced by the border officials.[7] Costs incurred must be reimbursed before the person can come back to Canada.[8]

The CBSA places the highest priority on removal cases involving national security, organized crime, crimes against humanity and criminality. As a result of the Balanced Refugee Reform Act[9] (BRRA), the CBSA also places a priority on apprehending and removing failed refugee claimants.[10]

The remainder of this report will describe the additional security practices and initiatives that are currently in place, provide a more detailed look on detention practices in the context of immigration, and recommend ways to move forward.

SECURITY: WHAT HAS BEEN DONE AND WHAT IS ON-GOING

A. The Canada-U.S. Perimeter Security and Economic Competitiveness Action Plan

On February 4, 2011, the Prime Minister of Canada and the President of the United States (U.S.) issued a declaration entitled Beyond the Border: a shared vision for perimeter security and economic competitiveness.[11] The subsequent action plan[12] includes joint priorities and areas of cooperation such as information sharing,[13] establishing a common approach to the screening of travellers and putting in place entry and exit systems.

1. Electronic Travel Authorization

The Jobs and Growth Act, 2012,[14] amends the requirements prior to entry into Canada for foreign nationals by requiring foreign nationals to obtain a new document called the electronic travel authorization (eTA). The traveller will have to provide data online that will be assessed automatically. The examination will determine if the person is admissible to Canada and meets the requirements of the IRPA. The eTA will be issued by the system. The application that cannot receive an automatic approval will be sent to a triage centre in Ottawa, staffed 24/7.[15] The immigration officer can either issue the eTA after verification or inform the applicant to go to the nearest mission for an interview with an immigration officer.[16] This initiative will, in time, be coupled with the interactive advance passenger initiative (IAPI) that will inform airlines directly of the status of the passenger’s eTA.[17]

Information on how the eTA will be implemented was first provided to the Committee in the course of this study. In describing the Government’s plans for a common approach with the U.S. for screening travellers, Assistant Deputy Minister Claudette Deschênes stated, “We will require that visa-exempt foreign nationals, except U.S. citizens, apply for an electronic travel authorization before flying to Canada.”[18] This measure is expected to extend security screening to those who don’t require a temporary resident visa to come to Canada.

More details about this initiative were made available to the Committee during its study of the subject matter of Bill C-45. Officials from CIC stated that the eTA will be in place by the spring of 2015.[19] As the initiative will be further developed in regulations, CIC has committed to working closely with the Office of the Privacy Commissioner.[20] The databases against which the applicant’s information is screened would be the field operations support system (FOSS), the global case management system (GCMS) and the lost, stolen and fraudulent documents database.[21] The eTA program is currently intended only for foreign nationals travelling by air.[22] An individual’s eTA is expected to be valid for multiple years and will be withdrawn if the foreign national becomes inadmissible.[23] CIC is planning to deploy additional resources[24] to ensure that persons directed to a visa office to clarify the eTA refusal will not wait more than two to three days.[25] Cost savings were estimated at $30,000 per individual whose legitimacy and intent may have been questioned and the eTA refused, had this person reached Canadian shores and made a refugee claim.[26]

The U.S. implemented the Electronic System for Travel Authorization (ESTA) as part of the legislative reforms included in the Implementing Recommendations of the 9/11 Commission Act of 2007.[27] The ESTA applies only to nationals of the 37 countries that are part of the U.S. visa waiver program that don’t require a visa for short term visits. The U.S. ESTA began as a voluntary measure but became mandatory in 2010. According to a study prepared for the European Commission, the ESTA automated approval process is fast (within a couple of minutes) and only 0.5% of applicants are denied authorization to travel.[28] The same study found that screening for people of concern at a point further from the U.S. is of benefit to the U.S. government, as well as to those denied an ESTA, who still have the option of applying for a visa. Disadvantages cited by the study include the outreach necessary to inform travellers of the new requirement and some implementation challenges faced by airlines and passengers.[29]

Witnesses commented on the eTA, with majority support for the use of the new eTA as a tool to enhance security.[30] One witness stated the eTA’s usefulness depended on the watch lists with which the information would be compared.[31] He explained that there were deficiencies in the use of both abstract risk profiles and watch lists of known inadmissible persons. He also expressed concern about the potential use of the data. One witness stated although the eTA was not a perfect tool, it would act as a deterrent. [32] One witness saw the initiative as a benefit for travellers coming to Canada as it is expected to facilitate rapid clearance of the majority of individuals. [33]Another witness stated that the eTA coupled with biometrics provided a way to address the problem of assumed identities and false documentation.[34] One witness expressed concern about the information that would be collected, especially since in a similar initiative, inaccuracies mined the reliability of the data.[35]

2. Entry and Exit Information Systems

The Beyond the Border Action Plan calls for the development of a system to exchange biographical information[36] on the entry of travellers, including citizens, permanent residents, and third country nationals, such that a record of entry into one country could be considered as a record of exit from the other.

Many witnesses testified that Canada does not have exit checks and therefore does not know how many people have overstayed time permitted by their visa or how many people without authorized status remain in Canada.[37] Two witnesses discussed the issue of a temporary foreign worker arriving in Canada but not appearing at the authorized workplace.[38] There is currently no obligation for the employer to report this either to CIC or to Human Resources and Skills Development Canada. Another witness underlined as a rule of thumb that if within the number of undocumented persons in Canada, 1% present a security risk, there is a significant threat to Canada.[39]

One witness stated that the exit-entry data exchange that is to be part of the new border agreement with the United States needs a regulatory framework that ensures that the data collected is sufficiently protected.[40] More broadly, one witness indicated that persons who travel regularly to regions where terrorism flourishes are persons of concern regardless of their status in Canada.[41]

Witnesses were generally positive about the potential for the entry-exit system to address residency fraud.[42]

Recommendation 1

The Committee recommends that the Canada Border Services Agency implement an exit control system for visitors.

Recommendation 2

The Committee recommends that Citizenship and Immigration Canada require individuals to report to a local Citizenship and Immigration Canada office at the end of the validity of their visa if they have not either left Canada or applied for an extension.

B. Bill C-31 — Protecting Canada’s Immigration System Act[43]

Bill C-31 was referred to the Committee on April 23, 2012 and was studied during a total of 15 meetings. It received Royal Assent June 28, 2012. It has amended IRPA in significant ways, such as introducing a new regime for designated foreign nationals who are part of an irregular arrival. These new terms are explained below in the section on human smuggling, which this bill intends to deter. Bill C-31 also modified the refugee determination system in Canada with the consequence of placing more emphasis on removals. Bill C-31 introduced an additional requirement of submitting biometrics with a temporary resident application.

1. Biometrics

Bill C-31 created in IRPA the legislative authority to collect biometrics, such as facial photographs and fingerprints, from applicants for temporary resident visas, work, and study permits.[44] Officials from CIC explained that the biometric measure will be implemented incrementally starting in September 2013, applying to more and more countries over time, until nationals of all non-visa exempt countries are required to submit biometric data with their applications for temporary stays.[45] The intention is that biometric information will help confirm the identity of applicants overseas and at the border as well as to prevent abuses of the immigration system, such as repeat refugee claims or the unauthorized return of people inadmissible to Canada.[46] In terms of policy and procedure, the Committee heard that individuals providing their data should be informed about the purpose of the collection and how it will be used to avoid any unintended use as cross-matching.[47]An official from CIC told the Committee that the design of the biometrics program provided for the use of a dedicated channel for the exchange of the sensitive personal information, independent of the Internet and potential cybercrime.[48]

The Privacy Commissioner reminded the Committee that the Privacy Act imposes obligations each time the federal government gathers personal information.[49] An official from the Office of the Privacy Commissioner said that extensive consultations with CIC had occurred regarding the introduction of biometrics in the temporary resident program.[50] He explained that although technology can be a useful tool in establishing identity, in immigration programs this often leads to the collection of vast amounts of data in large databases which poses privacy risks.[51]

The Committee heard a range of testimony on implementing biometric technology to improve immigration security. Two witnesses suggested that biometric technology was simply the latest in the evolution of tools for identification;[52] another thought its use was inevitable, as it is quickly becoming the global standard for establishing identity.[53]

Witnesses in favour of using biometric technology thought these concerns could be mitigated or overcome, or felt that the potential security gains outweigh privacy infringements.[54] One witness from the biometrics industry informed the Committee that technology has improved to the point where it can handle large volumes and is more accurate.[55] In his opinion, Canada was benefiting by introducing biometrics using third generation technology.[56] He informed the Committee about the Biometrics for National Security Community of Practice, led by Defence Research and Development Canada (research facilities under the responsibility of National Defence), that brings together key stakeholders from federal departments and agencies. The Committee heard that this community of practice has undertaken a number of biometrics studies looking at the performance of various technologies in different operational settings, and provides a forum for the sharing of best practices.[57]

Those closely involved in implementing CIC’s biometrics program assured the Committee that they had been working closely with the Office of the Privacy Commissioner and that the initiative respected the related laws and policies set by the Government.[58]

Finally, two witnesses told the Committee that Canada’s plans for using biometric data could go further. One suggested that facial recognition software could be used in airports to control identity and compare against a look-out list, such as that for repeat offenders, with upgrades to surveillance cameras and minimal additional training.[59] Another witness encouraged the program to cover all immigrants, rather than the temporary resident stream only.[60]

Recommendation 3

The Committee recommends that Citizenship and Immigration Canada develop policy and procedures with respect to the collection of biometrics prior to the collection of the data and that the policy clarify that the data collection must be for a limited purpose, and must be clearly understood by the individual providing data.

Recommendation 4

The Committee recommends that Citizenship and Immigration Canada should collect biometric data from all non-Canadians.

Recommendation 5

The Committee recommends that the Canada Border Services Agency verify all biometrics (photographs and fingerprints) at point of entry for all non-residents’ entry into Canada.

Recommendation 6

The Committee recommends that Citizenship and Immigration Canada cross reference the collected biometrics against shared databases.

Recommendation 7

The Committee recommends that Citizenship and Immigration Canada, the Canada Border Services Agency and the Royal Canadian Mounted Police, who will share the responsibility for the collection, use and storage of the biometric information, develop and implement stringent security protections for the databases, to withstand potential cyber-attacks.

Recommendation 8

The Committee recommends that the Government of Canada encourage independent research on the use of biometrics.

Recommendation 9

The Committee recommends increased cultural awareness training for officers of Citizenship and Immigration Canada and officers of the Canada Border Services Agency for the purpose of identification.

2. Human smuggling

Bill C-31 amended section 117 of IRPA that defines human smuggling, changing the emphasis from improper documentation to the broader concept of knowingly contravening IRPA.[61] Individuals organizing human smuggling now face mandatory minimum sentences and there are aggravating factors when determining penalties for trafficking in persons and disembarking persons at sea.

According to the government, these provisions of the bill aim to crack down on human smugglers and to facilitate prosecution, responding to concerns that Canada is increasingly a target of organized smuggling rings.[62] One professor specifically praised the changes proposed to the offence for smuggling in IRPA, suggesting they more effectively capture the full scope of what migrant smugglers do and the mental fault (mens rea) they bear.[63] However, some commentators argue that Canada already has very tough penalties for human smuggling and that measures such as those proposed by Bill C-31 will only drive up the costs that human smugglers can charge, and encourage them to use more dangerous routes into Canada, putting lives at risk.[64] Others suggest that while the organizers of human smuggling stand to profit the most from human smuggling operations, they likely never come to Canada and may not be deterred by increased punishments for the agents they hire to facilitate a human smuggling operation.[65]

During the study of Bill C-31, detention provisions were addressed by many witnesses. The Government responded to these concerns by amending the detention review regime applicable to “designated foreign nationals” so that the first review occurs within 14 days and subsequent reviews occur every 6 months. For more information on detention, please see the section below.

3. Removal

During the course of this study, few witnesses spoke to the subject of removals specifically. One witness stated that, despite the impediments that can cause delays in removals, it is a key enforcement action for security-related cases.[66] He and another witness stressed that removals should take place quickly after a negative refugee protection decision.[67] This testimony was heard prior to the study of Bill C-43 in which appeal rights are denied for persons inadmissible on grounds of serious criminality, which is discussed below.

Bill C-31 introduced modifications to the BRRA[68] that established a new administrative framework for the refugee determination process. In particular, the Minister of Citizenship and Immigration may now list designated countries of origin ( DCO) that are deemed safe and persons from DCO who make a refugee claim in Canada will have accelerated proceedings before the Refugee Protection Division (RPD) of the IRB. These timelines for the presentation of documents accompanying the Basis of Claim and for the hearing are developed in regulations.[69] Furthermore, a person coming from a DCO is not entitled to an appeal before the Refugee Appeal Division and is not entitled to an automatic stay when an application is made for judicial review by the Federal Court regarding the negative RPD decision.[70] Failed claimants from DCO will only be eligible for a pre-removal risk assessment after 36 months since their negative RPD decision. The list of DCO is available on CIC’s Web site.[71]

Despite widespread agreement that fast resolution of refugee claims is desirable, the new timelines were not as consistently supported by witnesses. Certain witnesses before the House of Commons Standing Committee on Citizenship and Immigration at the time thought the proposed timeline for a refugee hearing was adequate. However, witnesses who were also lawyers said that the timelines did not allow claimants the necessary time to find counsel, obtain supporting documents, and prepare their claim.[72] They predicted an increase in claimants representing themselves, material of poor quality being put before the IRB and consequent adjournments, and deserving refugees being denied and deported because they failed to present their case properly.

Table 1 shows the number of removal cases and timeliness of removals from 2005–2009.

Table 1: Removal Cases and Timeliness of Removals

Source:       CBSA, Detentions and Removals Programs – Evaluation Study, November 2010.

Recommendation 10

The Committee recommends that the Canada Border Services Agency remove failed refugee claimants more quickly.

Recommendation 11

The Committee recommends that the Canada Border Services Agency allocate more resources for removals.

C. Issuance of Temporary Resident Visas

The purpose and rationale behind the requirement for a temporary resident visa is to provide the opportunity to ensure foreign nationals meet the admissibility requirements before they arrive in Canada. Exceptionally, nationals from specific countries do not need to apply abroad for a temporary resident visa to come to Canada; these countries are listed in the Immigration and Refugee Protection Regulations at section 190. This list can be modified through regulations. In September 2012, nationals from St. Lucia, St. Vincent, Namibia, Botswana and Swaziland were removed from the visa-exempt list. Minister Kenney in a news release stated: “These changes are necessary to protect the integrity of Canada's fair and generous immigration system by helping us to reduce an unacceptably high number of immigration violations.”[73] The regulatory impact analysis statement that accompanied the publication of the amendment in the Canada Gazette indicates that unreliable travel documents and a high incidence of asylum claims made in Canada motivated this particular action.[74] Given the concerns raised during this study, the Committee undertakes to conduct an in depth study of the issuance of temporary resident visas.

D. Information sharing

An official from the Office of the Auditor General of Canada indicated that the 2011 audit of the issuance of visas showed that timely and reliable information is not always available to visa officers when they must make an admissibility determination on an application: there may be little information available from security partners.[75]An official from the CBSA explained to the Committee that after CIC makes a referral, the CBSA compiles information from open-source and classified information, as well as information from the RCMP or CSIS.[76] He also stated that the CBSA was taking steps to address the Auditor General’s recommendations in regards to accessing all relevant information quickly, by developing databases within CBSA with open-source information and analysis.

The Committee heard that Canada currently participates in a five-country conference which includes the United States, the United Kingdom, Australia and New Zealand for which protocols have been established to share tombstone data that is stored on a server hosted by Australia.[77] Information beyond the biographical data that may be necessary for decision-making is shared on a case-by-case basis in compliance with the Privacy Act.

Canada, through the RCMP, is also a member of Interpol:[78] an international network that allows information sharing among police forces. An official from CIC assured the Committee that the fingerprints collected from the applicants for temporary resident visas would be sent to the RCMP to be checked against its own database that holds the fingerprints of individuals convicted in Canada, refugee claimants and previously deported persons, and would not be sent to Interpol.[79] She also stated that standard information sharing agreements have clauses that restrict third party access and ensure refugees’ lives are not endangered. The RCMP also hosts the Canadian Police Information Centre (CPIC):[80] an official from the CBSA stated that this allows sharing of information “to identify individuals during the course of police and regular business law enforcement.”[81]

One witness, who spoke about the information that supports the decision-making process by a CIC visa officer, suggested that the CBSA, the RCMP and CSIS are hampered by silos — in particular institutional and cultural barriers.[82] Dialogue and information-sharing were the solutions proposed to address the situation. Another spoke more broadly, indicating that it was necessary to include all levels of law enforcement.[83]

Outside the scope of CIC’s mandate, several witnesses mentioned that intelligence gathering abroad by Canadian agents would enhance the security decisions made later when screening an application.[84] One mentioned that there is a risk in relying on information provided by allies, as they have their own interests, which may or may not be Canada’s interests.[85] A witness identified the need for better intelligence sharing of reliable information.[86] Another suggested that human intelligence can include community engagement here in Canada, which would help authorities gain a better understanding of foreign regions and the context from which individuals apply to come to Canada.[87]

Recommendation 12

The Committee recommends that Foreign Affairs and International Trade Canada share information with officers of Citizenship and Immigration Canada to assist them in the screening of applicants in regards to inadmissibility.

Recommendation 13

The Committee recommends that Public Safety Canada ensure that the Canada Border Services Agency, the Royal Canadian Mounted Police and the Canadian Security Intelligence Service share information in an efficient manner.

Recommendation 14

The Committee recommends that Citizenship and Immigration Canada and the Canada Border Services Agency develop a capacity to collect intelligence outside of Canada.

Recommendation 15

The Committee recommends that the Government of Canada establish a framework to determine how Canada can better share intelligence with its allies and how Canada can better expand the intelligence it shares.

Recommendation 16

The Committee recommends that the Government of Canada implement information sharing agreements with as many countries as possible.

Recommendation 17

The Committee recommends that the Government of Canada implement information sharing agreements between the Canada Border Services Agency, Citizenship and Immigration Canada and the Canadian Revenue Agency.

E. War Crimes

Section 35 of IRPA provides that persons who have committed war crimes and persons who have been part of a designated government (either by Canada or by an international organization) that has committed war crimes are not welcome to enter or stay in Canada.[88]This clause supports the Government of Canada’s policy to deny safe haven to suspected war criminals and to contribute to the domestic and international fight against impunity.[89]

Established in 1998, the Crimes against Humanity and War Crimes Program is a collaborative effort between the CBSA, CIC, Justice Canada (DOJ), and the RCMP. This program aims to identify and prevent admission to Canada of persons involved in war crimes. It also has the objective of examining all allegations of war crime suspects in Canada and, when appropriate, to investigate and prosecute them.

An evaluation done by the DOJ in 2008 confirmed the cost effectiveness of using immigration procedures, such as denying a visa or revocation of citizenship, to keep alleged war criminals from living in Canada.[90]

According to one witness, there are war criminals presently in Canada.[91] Several witnesses stressed the importance of prosecuting these criminals, either in their country of origin, in Canada, or at the International Criminal Court.[92] One witness indicated that Canada had been the first country to establish an act to prosecute war criminals (2000 Crimes Against Humanity and War Crimes Act) and that other European countries had used the War Crimes Program as a model for the creation of their own investigative and prosecution units.[93] One witness made it clear that she was not recommending that all alleged war criminals be brought to trial, but a handful of prosecutions would send a clear message that violating human rights or genocide would not be tolerated.[94] One witness stated that evidence and resources had to be assessed with officials of the country of origin to decide where the prosecution should occur.[95]

A couple of witnesses addressed the CBSA’s “wanted list” for people inadmissible on account of being accused of, or complicit in, war crimes or crimes against humanity, which had been expanded to include people inadmissible on security grounds, for serious criminality or for organized criminality.[96] One witness stated that the “wanted list” was “ill conceived” with respect to war crimes and counterproductive because in at least one instance, the negative publicity involving the individual had made return to his country of origin unsafe and an immigration officer found that he could no longer be deported.[97] One witness stated the inadmissibility on grounds of human rights violations such as war crimes was too broad and applied arbitrarily.[98] Another witness commented that he had never seen the existing provision for war crimes fail to address the situation of a convicted war criminal, though he had seen people “wrongly picked up in the net”.[99]

Recommendation 18

The Committee recommends that the Government of Canada sufficiently resource the Crimes against Humanity and War Crimes Program.

F. Bill C-43 — The Faster Removal of Foreign Criminals Act

Bill C-43 was referred to the Committee on October 16, 2012 and was studied during nine meetings. On November 29, 2012, the Committee’s report was presented to the House of Commons. Bill C-43 is the result of an interdepartmental review of the inadmissibility provisions in IRPA.[100] In matters directly related to the Committee’s study, the bill limits the review mechanisms for certain foreign nationals and permanent residents who are inadmissible on such grounds as serious criminality and introduces factors that must be taken into consideration for ministerial relief for those inadmissible on security grounds, violation of human rights or organized criminality. It also amends the Act to provide the authority to the Minister of Citizenship and Immigration to deny temporary resident status to foreign nationals based on public policy considerations.

The Committee had already heard about inadmissibility during this study. In general terms, the inadmissibility provisions were described by one witness as comprehensive and fairly useful.[101] An official from the Office of the Auditor General stated that one of their key findings in the November 2011 report was that visa officers using indicators to identify possible inadmissibility did not have access to updated tools to help them in their determinations.[102] A number of witnesses stated that the volume of applications does not allow for visa officers to screen as thoroughly as they should[103] and that more applicants should be interviewed.[104] One witness stated that visa officers spent too much time justifying their refusals.[105] An official from the Office of the Auditor General also told the Committee that quality assurance practices for the admissibility determination process need to be strengthened: when the majority of the determinations lead to allowing individuals into Canada, it is just as important to review those decisions in order to make sure the system is working.[106] Two witnesses suggested that CIC should be particularly careful in screening individuals coming from specific countries.[107]

With regard to inadmissibility on security grounds (IRPA, section 34), witnesses raised concerns that the current provision is overly broad and not consistently applied. In terms of how inadmissibility on security grounds is assessed, two witnesses identified specific problems, including the lack of temporality, lack of danger assessment, and disconnect with security threats to Canada.[108] These witnesses said, the broad security provision captures the “wrong” people and has devastating consequences for peoples’ lives. One witness explained the new approach taken by Homeland Security in the United States, which established tiers of security threats, allowing individuals who have participated in low‑threat organizations (Tier 3) admissibility to the U.S. unless a particular individual has a violent background.[109] He said that this approach was not only more just to the individuals in question, but a better use of government resources. Two witnesses pointed to the discretion involved in deciding to refer section 34 cases for an admissibility hearing and the considerable variation in decisions made by immigration and border officers.[110]

One witness spoke about ministerial relief: section 34(2) of IRPA specifies that the Minister of Public Safety may decide to allow a person found inadmissible under section 34 to remain permanently in Canada.[111]

Bill C-43 proposes a number of changes to IRPA. A person inadmissible on grounds of security, war crimes or organized crime would not be allowed to present an application under humanitarian and compassionate considerations. Ministerial relief for persons inadmissible on grounds of security, war crimes or organized crime is formulated in a single section of the IRPA, where specific factors related to national security must be taken into consideration.[112] Appeal rights to the Immigration Appeal Division for persons with serious criminality will be limited to those with a sentence in Canada of less than six months. Appeal rights will also be denied to persons, convicted or not, for acts committed outside Canada, if these acts were committed in Canada would be punishable by a maximum of 10 years of imprisonment. The penalty for being found inadmissible on the grounds of misrepresentation was increased to a five-year ban. Finally, the Minister of Citizenship and Immigration Canada will have the discretion to refuse temporary resident status for up to 36 months on the basis of public policy considerations.[113]

With respect to appeal rights, one witness spoke about her experience of representing persons found criminally inadmissible and how they would often receive a conditional stay of removal at the Immigration Appeal Board; she stated her clients tended to re-offend and breach their conditions.[114] However, another witness stated a conditional stay of removal is an effective enforcement and rehabilitation tool.[115] One witness expressed support for the streamlined process of removal, indicating to the Committee that, in Canada, an offender who receives a custodial sentence of six month has committed a serious offence.[116] As a frontline police officer, this witness stated that to receive a six month sentence, the person usually has committed numerous offences beforehand.[117] However, another witness stated that conditional sentences, usually accompanied by house arrest, were counted in the same manner in immigration law and that Bill C-43 should be explicit about its consequences applying only to custodial sentences.[118]

Recommendation 19

The Committee recommends that Citizenship and Immigration Canada develop a list of priority countries for security screening.

Recommendation 20

The Committee recommends that Citizenship and Immigration Canada, the Canada Border Services Agency and the Canadian Security intelligence Service create a tiers system, which would allow the Government of Canada to establish broad waivers for classes of individuals inadmissible on security grounds who pose no threat to Canada.

Recommendation 21

The Committee recommends that Citizenship and Immigration Canada and the Canada Border Services Agency ensure that their officers involved in section 34 decisions receive specific training.

G. The Global Case Management System

Officials from CIC have indicated throughout the study the importance of the Global Case Management System (GCMS) completely deployed in 2012 across Canada and CIC’s missions abroad. The Committee heard it is a centralized, integrated model that allows for a better use of resources.[119] With its robust search engine that brings up similarities in names which assists officers to identify individuals with multiple names or transliterated names into English,[120] the GCMS has been described as instrumental in investigations into residency fraud, in one case identifying an address that was repeated in citizenship applications.[121] The GCMS is one of the databases to be used during the screening process of the eTA, as explained above.[122] The Committee has been told that the GCMS has become the system of record for individuals whose applications have been processed within this new network.[123]

DETENTION

In addition to its emphasis as part of this study, detention was addressed throughout the study of Bill C-31, prompting the Committee to travel to Vancouver, Montréal and Toronto to see the conditions in the immigration holding centres (IHC) and in one provincial correctional facility (Rivière-des-Prairies). The Committee also heard about detention review from representatives of the Immigration and Refugee Board of Canada (IRB) in Toronto.

1. Background

A. Detention in IRPA and its regulations

There are now three detention schemes in IRPA to address the following possibilities: (1) the identity of the foreign national is not established upon arrival, the individual constitute a danger to the public, the foreign national poses a flight risk and may not appear for an immigration process (such as deportation), (2) the person is under a security certificate or (3) the person is a designated foreign national.[124] For most cases, after 48 hours of detention by the CBSA, the Immigration Division of the IRB must review the reasons for detention and assess if any alternative can be found, such as a bondsperson and release with terms and conditions.[125] If the IRB determines that detention should continue, the decision must be reviewed after 7 days and then every 30 days. For persons detained under security certificates, the detention review is performed by a Federal Court judge, within 48 hours and then every 6 months. For designated foreign nationals, the first detention review by the IRB occurs after 14 days and every 6 months afterwards and not earlier. The Minister, on his own initiative, has the authority to release a designated foreign national if the reasons for the detention no longer exist.[126]

Even after a removal order has been issued, the person may be in detention for some time. Delays that will keep a person in Canada can include, for example, that the individual has asked for a pre-removal risk assessment (PRRA), or does not have a valid travel document.

During this study, one witness stated that the regular detention review scheme is good and works well.[127] This witness also indicated that there is not much data collected about people in detention and suggested that dealing with mass arrivals of refugee claimants and detained persons who were “unremovable” from Canada poses challenges for this policy area. Two witnesses said that the number of children detained is under reported, especially if the children themselves are Canadian citizens: the children are considered guests of the detainees.[128] Other witnesses spoke against the detention of children, arguing that it violates the Convention on the Rights of the Child, has harmful effects, and impairs their integration into Canadian society.[129]

B. Facilities and current costs

Currently the CBSA operates three detention centres for low-risk detainees: one in the basement of the Vancouver airport (24 beds for stays of less than 72 hours), one near Montréal (150 beds), and one in the Greater Toronto Area (195 beds). All other detainees, either high-risk or where there are no IHC, will be held in provincial jails when they must be detained for more than a day, as per various agreements. Table 2 shows the number of detainees in the last five years and their average time in detention.

Table 2: Number of individuals detained

* includes detainees remaining in detention past end of fiscal year.

Source: CBSA, Inland Enforcement, Post Border. Numbers taken from the National Case Management System, August 18, 2012, provided to the Committee.

(i) Placement Evaluation

The detaining officer conducts an initial risk assessment to determine the appropriate place of detention, with particular attention to the risk of violence. The person’s demeanour is critical in conducting this risk assessment, taking into account factors such as their level of cooperation, combative behaviour, evidence of drug or alcohol use, reports from airline staff concerning in-flight behaviour, etc. High-risk detainees include those with violent behaviour, criminal backgrounds, and those wanted by foreign governments.

(ii) Facilities

A brief description of the IHCs will be followed by a comparative table that demonstrates the variations in the operations of the centres. The two main sources for this information are the CBSA Detention and Removals Evaluation from November 2010 and the information provided on site during the tours in August and September 2012.

The B.C. IHC,[130] located in the basement of Vancouver International Airport, is 400 square metres and was established in October 2001. It initially housed only airport cases, but now includes detainees discovered in‑land as well. The centre is intended for short-term detention only, for a period up to 72 hours. The facility was sparse and institutional, but met detainees’ basic needs and provided limited diversions through television and books. The facility was as described in the CBSA Detention and Removals Evaluation: men and women are housed separately. Children stay with their mothers, while unaccompanied minors are housed separately. The rooms have limited washroom facilities, with each common area having complete washroom/shower and television access. In addition, the B.C. IHC has a family unit. Two rooms, equipped with two beds each and limited washroom facilities, are available for overflow or can be used to temporarily house detainees who require transfer to a more secure area.

The Laval IHC[131] near Montréal was originally built for Correctional Services Canada in 1950, and low-risk immigration detainees started to be held there in 1996 when Citizenship and Immigration Canada took over the facilities. Rooms are normally furnished with metallic bunk beds, except in the wing for women with children.

The Toronto IHC[132] started its operation in its current location in 2003. It was a hotel, the Heritage Inn, that has been retrofitted recently. The admission and discharge areas were seen: detainees are driven into the facility and are processed in a large room. At admissions, new live-scan machines take electronic fingerprints and photographs of the individual. The TIHC has separate wings for men, women and women with children. Men constitute 70% of the population. The first floor is the family wing. The wing with women and children has a new play room that was made possible due to donations. These rooms were not retrofitted yet, with two double beds and hotel-like furniture. In the new rooms of the second and third floors, there are three single beds per room. On the second floor, there is a multi-purpose room, used as a library, for religious gatherings and for family visits. Each wing has laundry facilities.

Table 3: Detention operations in each IHC

Source: Information provided during the Committee’s travel and compiled by the analysts.

The provincial correctional facility the Committee visited was Rivière-des-Prairies near Montréal.[134] It is primarily a remand centre for men (no minors) where individuals are awaiting trial, although convicted prisoners are also held at the facility, in separate quarters. Immigration detainees are not placed with convicted criminals and are therefore not considered by the staff to be co-mingling with convicted criminals. Convicted prisoners serving their sentence in this prison who may have an immigration file are not considered immigration detainees.

The establishment can hold up to 600 men and is built along two corridors: a general corridor that can hold up to 320 individuals in various sectors of 40 people, and a secure corridor that mostly holds those incarcerated for known links to organized crime. At the end of this corridor there is a maximum security area. The general and secure corridors share access to the health wing, which can hold up to 32 individuals. There are pay phones available in each common area. Access to the outdoors is a minimum of an hour a day, and can be unlimited, depending in which sector the individual is placed.

There are three general practitioner doctors that cover the establishment’s needs on a rotational basis and a dentist is available half a day per week for emergencies only. Psychiatric care is overseen by doctors coming from the neighbouring psychiatric institution, Institut Pinel.

There was an attempt in the past to keep all immigration detainees together. Since immigration detainees such as those with links to organized crime or street gangs were mixed in with those that would normally be in the general sector, it created a difficult environment for the latter. It was felt that specific needs and behaviours could not be addressed properly and this approach was abandoned.

IRB hearings have been held in the prison for the last seven years. This arrangement minimizes the risk of escape during transportation and ensures the security of all concerned as cameras follow the proceedings and guards are outside the room.

(iii) Costs

The subject of cost came up at every meeting but only partial information was obtained.

The staff at the B.C. IHC undertook to provide an average cost for detention at their facility but this information was not available at the time of this report. As stipulated by the Memorandum of Understanding (MOU) the compensation CBSA is to provide to the B.C. government for each detainee it holds is $195 per day.

The average cost of detention at the Laval IHC was high, estimated around $400 per detainee per day, as the operational budget was determined to be $8 million a year and the population fluctuating throughout the year. The Laval IHC has an unsigned MOU with the provincial Rivière-des-Prairies correctional institution that has been holding detainees for CBSA for at least the last 10 years. The CBSA is charged $184 a day per individual (this is under revision).

At the Toronto IHC, the cost charged to CBSA is $185 per detainee per day for the use of the facility, meals and cleaning, as per the five-year service contract. When detainees need to be placed in other facilities, they are usually placed in the Don Jail or Toronto West for which costs have not been provided.

(iv) Detainee Liaison Officer

A relatively new aspect of CBSA’s partnership with B.C. Corrections is the detainee liaison officer position, established three months prior to the Committee’s visit in August 2012. The liaison officer goes to the provincial facilities housing detainees as well as to the IHC to check in with the detainees. The officer plays a path-finding role, helps to identify gaps and any special needs, and identifies any inconsistencies between institutions. Detainees are given the liaison officer’s telephone number so that they can be in direct contact. Thus far the initiative has received very positive feedback from B.C. Corrections, the Red Cross and CBSA staff. They explained that one reason for implementing the program was out of concern that the needs of refugee claimants could get lost as reforms are implemented tightening the timelines for refugee determination.

Recommendation 22

The Committee recommends that the Canada Border Services Agency use the term Immigration Holding Centre rather than detention centre, to better reflect the nature of these centres.

Recommendation 23

The Committee recommends that the Canada Border Services Agency review their Immigration Holding Centre service standards and establish a best practices model or operational procedures that could be used for all Immigration Holding Centres.

Recommendation 24

The Committee recommends that, where financially and logistically possible, Immigration and Refugee Board offices and the three official Immigration Holding Centres be at the same locations.

2. Potential Next Steps

The CBSA’s found in its 2010 evaluation of the detention program that alternatives to detention such as the Toronto Bail Program should be used more often.[135] During the Committee’s travels to the various IHCs, substantial differences in operating costs and in structural arrangements became apparent. An official from the CBSA assured the Committee that a national policy on detention in the immigration context existed, that it conformed to international protocols and was applied in a consistent manner across the country.[136]

A. Alternatives to detention

Several witnesses suggested that alternatives to detention should be used more often. The only such program currently working under a formal agreement with the CBSA is the Toronto Bail Program, a community-based supervision program for foreign nationals. One witness explained there was a need for formal agreements between the CBSA and the various organizations and refugee shelters that take in vulnerable populations on referrals from the Toronto IHC.[137] Another suggested that programs similar to the Toronto Bail Program should be available across the country.[138] He also informed the committee that electronic monitoring is another viable alternative to detention in that it allows for tracking, is not too expensive, and — in his experience working with clients — is preferred to detention.[139] One witness told the Committee that Australia has developed a cost-effective alternative to detention for vulnerable populations, building into their programs conditions that address security concerns.[140]

Recommendation 25

The Committee recommends that the Canada Border Services Agency review the use of additional methods of alternatives to detention.

B. Consistency in the detention program

The information provided to the Committee regarding the national detention standards that must be upheld in the IHCs include: a daily minimum of one hour open air exercise, free local telephone calls, access to a qualified religious representative upon request, and special meals provided for medical, dental or religious reasons.

CBSA personnel on site in British Columbia explained that, while there are differences between the three IHCs, the same standards or operating principles apply. These include safe and secure detainees, upholding the legal rights of detainees, and ensuring that all detainees are treated with respect. They acknowledged that no-one likes being deprived of their liberty and explained that they try to make the experience as respectful and dignified as possible. To help ensure that the standards are met uniformly across the country, CBSA employs various strategies, including program integrity visits from headquarters (including visits to provincial facilities holding immigrant detainees), a detentions working group at the management level, and monitoring by non-government organizations, such as the UNHCR and the Red Cross. Red Cross reports are considered at the Director General level in headquarters but are also addressed informally and formally by the regional office, when the issues raised are specific to one facility. Finally, there is a standard training program of 16 weeks for Border Services Officers (working at Ports of Entry) and additional training required for enforcement officers, who have different delegated authorities under IRPA.

MOVING FORWARD

Many initiatives and programs were raised before the Committee during the last year. The reports from the Auditor General of Canada have provided many recommendations to CIC and the CBSA with the goal of strengthening the immigration system. Although departments plan responses to these recommendations, including implementation schedules, the Committee wishes to be kept informed of the progress that is made.

Although Bill C-43 was drafted in response to a review of admissibility criteria, it did not include the health provisions (IRPA, section 38). However, a couple of witnesses echoed the Office of the Auditor General finding that the criteria with respect to the medical screening are in need of review.[141] One witness also advised the committee that, using current procedures, medical results could be tampered with.[142] Finally, one witness stated that the new Interim Federal Health Program would likely create public safety issues.[143]

Recommendation 26

The Committee recommends that Citizenship and Immigration Canada establish a network of approved labs to provide independent analysis of medical tests.

Recommendation 27

The Committee recommends that Citizenship and Immigration Canada review the objectives of screening for danger to public health.

On the whole, witnesses shared a number of observations and made recommendations concerning general, or cross‑cutting themes. Two witnesses suggested that, given the significant (and expanding) enforcement powers of the CBSA, the current accountability mechanism of the internal complaints process is inadequate.[144] They recommended instead that the CBSA be subject to independent oversight, similar to the RCMP and the CSIS. These witnesses suggested that such an accountability mechanism would both improve enforcement activities and provide an important avenue of redress.