An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act

This bill was last introduced in the 39th Parliament, 2nd Session, which ended in September 2008.

Sponsor

Stockwell Day  Conservative

Status

This bill has received Royal Assent and is now law.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Immigration and Refugee Protection Act to add provisions relating to a special advocate to Division 9 of Part 1 of that Act. The special advocate’s role is to protect a person’s interests in certain proceedings when evidence is heard in the absence of the public and of the person and their counsel. The special advocate may challenge the claim made by the Minister of Public Safety and Emergency Preparedness to the confidentiality of evidence as well as the relevance, reliability, sufficiency and weight of the evidence and may make submissions, cross-examine witnesses and, with the judge’s authorization, exercise any other powers necessary to protect the person’s interests.

The enactment eliminates the suspension of consideration of the reasonableness of a security certificate that occurs when the person named in it makes an application for protection.

The enactment also provides that, when a person is detained under the security certificate regime, a judge of the Federal Court must commence a review of the detention within 48 hours after the detention begins and then, until it is determined whether a certificate is reasonable, at least once in the six-month period following the conclusion of each preceding review. A person who continues to be detained after a certificate is determined to be reasonable and a person who is released under conditions may apply to the Court for a review of the reasons for their continued detention or for continuing the conditions if a period of six months has expired since the conclusion of the preceding review.

The enactment permits the appeal of a determination whether a security certificate is reasonable and of a decision resulting from a review of a person’s detention or release under conditions to the Federal Court of Appeal if the judge certifies that a serious question of general importance is involved.

It also permits a peace officer to arrest and detain a person who is subject to a security certificate if the officer has reasonable grounds to believe that the person has contravened or is about to contravene their conditions of release.

The enactment enables the Minister to apply for the non-disclosure of confidential information during a judicial review of a decision made under the Act and gives the judge discretion to appoint a special advocate to protect the interests of the person concerned.

It also contains transitional provisions and makes a consequential amendment to the Canada Evidence Act.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Votes

  • Feb. 6, 2008 Passed That the Bill be now read a third time and do pass.
  • Feb. 6, 2008 Passed That this question be now put.
  • Feb. 4, 2008 Passed That Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, as amended, be concurred in at report stage.
  • Feb. 4, 2008 Failed That Bill C-3 be amended by deleting Clause 1.
  • Nov. 20, 2007 Passed That the Bill be now read a second time and referred to the Standing Committee on Public Safety and National Security.

October 22nd, 2009 / 11:50 a.m.
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Liberal

Rob Oliphant Don Valley West, ON

Thank you, Mr. Chair.

Mr. Minister, you're the Minister of Public Safety and you said that some of the work our committee has undertaken, since this review that you felt should have been done, is trivial and of a partisan nature. I'm wondering which work our committee has dealt with in the last two and one-half years that you would consider trivial. Is it Bill C-3, to amend the Immigration and Refugee Protection Act? Is it our work on contraband tobacco, the witness protection program, the study of security issues concerning the Minister of Foreign Affairs, our taser study, agri-chemicals and agri-retail, arming of the CBSA officers? Is it Bill C-12, regarding emergency management? Is it Bill C-279, DNA identification? I could go on.

It has been significant work that this parliamentary committee has dealt with, none of which has been trivial, all of which may be partisan to some degree. But I would argue that it is unfair for you to assess this committee's work as either trivial or partisan.

Because I know you can run out the clock with that statement I want to ask you: were you aware that our committee was in the final process of finishing our report, and actually we changed our agenda, when you introduced this legislation on June 1 so you would not take advantage of our interest and expertise in this area?

It was not one year away, as you just suggested in your testimony.

May 28th, 2008 / 3:35 p.m.
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Conservative

Diane Finley Haldimand—Norfolk, ON

Thank you very much, Mr. Chair and honourable members.

Je vous remercie, monsieur le president et honorables députés.

Today I have the honour of placing before the committee my department's main estimates and supplementary estimates (A), both for the fiscal year 2008-09, for which I seek the committee's approval.

I propose to cover only some of the major items in my remarks, and address any areas of particular interest to the committee in the time allotted for questions. But before I proceed, I would like to put our commitments in the main and supplementary estimates in context.

Our government is committed to helping newcomers build a better life for themselves and their families. Our vision is to ensure that the people who have gone through so much to get here can get the jobs they need to succeed, because their success is our success.

That's why in 2006 we began investing an additional $1.4 billion over five years for settlement funding, for programs that help newcomers find jobs and get settled in their new communities.

We also made it more affordable for immigrant families to come here. We did this by cutting in half the right of permanent residence fee, saving a family of four almost $2,000.

We're lifting caps on the provincial nominee programs because we want to make it easier for provinces to bring in the people with the right skills, the right education, and the right work experience for local needs. Lifting these caps will also help us to overcome regional differences when it comes to access to skilled labour.

We are also allowing foreign post-secondary students to work off-campus now for the first time ever.

The interest in this change has been immediate. In 2005 there were just under 1,200 such students who worked off campus, and last year that number had exploded to more than 17,000.

Just recently, I was proud to announce a major expansion of the post-graduation work permit program. International students will no longer be required to work in an area directly related to their program of study or to obtain a job offer prior to being issued a work permit. In addition, the duration of the work permit has been extended to up to three years across the country. Previously, the program allowed international students to work for only one or two years, depending on the location.

This expansion of the program is great news for foreign students, and it's great news for Canada. Foreign students will now be able to get a work permit and then get a job. This will help to increase their independence and will give them much needed Canadian work experience. And it will give Canada an immediate source of talented Canadian-credentialled workers.

We have also kept our commitment to create a foreign credentials referrals office. This office helps would-be immigrants find out where and how to get their foreign credentials evaluated before they even get to Canada. It also provides a wealth of information about local labour markets, including current job postings and suggestions of related professions.

By identifying any gaps between the immigrants' credentials and Canadian standards, would-be newcomers can get to work upgrading their skills before they even get here, especially with the wide range of international partnerships that our post-secondary institutions are developing around the world. And that's good for all of us.

This information is also available to immigrants who are already here, through the website and the 320 Service Canada locations across the country. Since its launch less than a year ago, credentials.gc.ca has had over 250,000 hits, and by far the majority of those have been from overseas. So it's working.

On top of that, we've expanded pilot orientation programs started in India, China, and the Philippines by Human Resources and Social Development Canada and the Association of Canadian Community Colleges. These programs not only help immigrants check out their credentials, but also help them know what to expect when they get here, right down to how to buy a house or which bus to take to get their social insurance number.

So, Mr. Chair, our actions have shown our commitment to newcomers and their families.

With respect to the main estimates before us, the committee will note that the total main estimates for 2008-09 are just over $1.3 billion, an increase of just over $132 million, or 11%, from the previous year. This is due primarily to additional funding approved for three key initiatives: first, continued support of the Canada-Ontario Immigration Agreement and additional settlement funding for other provinces, totalling just over $156 million;

second, enhancements to the temporary foreign worker program, totalling $5.2 million.

and finally, the establishment of and operating funds for the Foreign Credentials Referral Office, totalling $2.4 million.

Mr. Chairman, I realize this is earlier in the year than you normally review supplementary estimates, but, as the President of the Treasury Board recently noted, by tabling these estimates earlier, the government is taking another step to enable Parliament to review the numbers earlier in the year and ensure the timely processing of budgetary commitments.

With respect to the supplementary estimates, I'd like to draw your attention to the following items in the estimates, which reflect appropriations totalling just over $21 million.

First, I wish to note that the department is requesting authority for an amount of approximately $8 million to provide first-year funding to modernize the immigration system and manage the backlog. This will allow the department to implement various administrative and efficiency measures.

Second, the department is requesting authority for an amount of $7.1 million to provide first-year funding for CIC to begin planning the implementation of biometrics in the temporary visa stream.

Third, CIC requests authority for an amount of $3.9 million to hire and train additional officers to properly assess complex caseloads stemming from new operational requirements on CIC as a result of the implementation of Bill C-3, dealing with security certificates.

Finally, Mr. Chair, the department requests transferring operating funds of $2.3 million from Foreign Affairs and International Trade Canada to cover the costs of the increase in applications from foreign participants in the international youth program. Through a network of bilateral and multilateral arrangements administered by DFAIT, this program provides young Canadians with an opportunity to gain work experience in other countries, and it enables international youth to gain work experience in Canada.

These are some of the major items.

I understand that the committee may wish clarification or explanation of the many other items in the main and supplementary estimates I have presented. My officials and I would be happy to respond to any questions the committee may have in this regard.

My officials and I would now be happy to respond to any questions the committee may have in this regard.

Thank you.

Criminal Code
Government Orders

April 17th, 2008 / 3:45 p.m.
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NDP

Penny Priddy Surrey North, BC

Mr. Speaker, I think many people will look at the conditions in the bond and sign it but not understand what the conditions will mean in what they are able to do in their lives.

Let us think for a minute. People frequently travel back and forth across the border between Canada and the United States. They will get to the border, the border officials will check their name and they will find they have a peace bond against them. They will likely be refused. They may have family in Europe, the continent, India or wherever. Many people go back and forth to visit family. I have, as others have. They will be refused.

They need to make a living. Will this be reported to their employer? When they go to change jobs and people do proper reference searches, which they should do, of course, what will show up is that the person has been detained and has had to sign a peace bond to be out in the community. For employers, who may have a variety of people to pick from, and certainly in many areas they do, then the person with the peace bond will, most likely, not be selected. It has now affected his or her employment.

What if this is a mom who is in the hospital delivering her baby. She may require some medical assistance, assistance from social services around parenting or a public health nurse. If people look at her file and find that she has a peace bond against her, will that influence the way that people hover and watch the way she raises her child, although potentially she may have done nothing wrong?

My colleague raised a very important question about travel and employment. If people do have a peace bond, I do not think that many of the people who will be doing a reference check or a check for medical or social services will wonder whether the person was really innocent even though she or he has a peace bond. Most people will assume that the person is guilty and that she or he has done something wrong. That negative stigma and that file will stay with the person.

What can people do about it? My understanding is nothing. Actually, they can go to jail for a year by refusing to say anything, but in that case they would not find themselves with the peace bond. However, their only other option is to say nothing and potentially go to jail for a year. They do not have an appeal process. They do not know why they have been picked up and detained. As in Bill C-3, they have very little recourse to protect themselves.

Criminal Code
Government Orders

April 17th, 2008 / 3:40 p.m.
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NDP

Penny Priddy Surrey North, BC

Mr. Speaker, forgive my eagerness to speak to the many flaws in the bill.

As I say, this bill supposedly has a provision for the arrest of a person involved in an imminent terrorist threat, thereby disrupting the terrorist activity. We support the idea that we should disrupt an activity like that, but if someone is planning a terrorist act, the Criminal Code already allows for him or her to be arrested and held for up to 72 hours.

The bill also says that persons will have a peace bond for something that they may not even have done. We have never seen this before with peace bonds. Why do we need this? Under the Criminal Code mechanism, if no evidence is found leading to charges against the person, he or she must be released. That is what the Criminal Code says.

However, Bill S-3 goes one step further, and that is the problem. These individuals are released under conditions. There could be a variety of conditions. They may be perfectly reasonable for somebody who is convicted of being involved in terrorism, but not when there is no evidence of doing anything wrong.

It is extremely unjust. As Craig Forcese said, “One would imagine that a peace bond is likely to be ineffectual in relation to a suicide bomber”.

The last point I would make about this, and civil liberty groups have sharply criticized this as well, is that if a person is detained, a file is opened on that person. If a file is opened, it stays with that person and impairs his or her freedom to travel and apply for a job. It is a negative stigma that stays around the individual.

Let us keep in mind that we are talking about people who may have done absolutely nothing wrong. New Democrats will not and cannot support a bill that will punish people who are not guilty of any criminal activity.

As I mentioned earlier, many members of other parties in this House are also opposed to this legislation. I am speaking now specifically for my Liberal colleagues, as many of them took a very principled stand and voted against this legislation when it came to the House earlier in the session. They did the right thing. They stood up, but what will they do now?

I expect that they may do what they have done all along since the member for Saint-Laurent—Cartierville won the leadership of the party. They may sit on their hands. I find it particularly egregious that Liberals would support the bill when I know many members of their caucus share the same concerns I have voiced here today.

Voting for Bill S-3 is not like voting for the budget as a strategy to avoid an election. Standing shoulder to shoulder with the Conservatives and voting for Bill S-3 is giving approval to major changes and it strikes at the heart of Canadian values. I am calling on my Liberal colleagues today to do the right thing and vote with the NDP against the legislation.

I understand that members of the Bloc Québécois are on the same side of the issue as we are expressing, so a Conservative-Liberal alliance will be what it will take to pass Bill S-3. I hope Liberals have the courage to take a stand. As I have already said, ensuring public safety is about protecting quality of life. A good quality of life depends on a balance between freedom and security.

The investigative hearings are flawed. They do not accommodate the guidance of the Supreme Court of Canada. This is vulnerable to misuse. The recognizance with conditions provision is fundamentally opposed to a core value in our justice system: that a person must be guilty of doing or plotting something in order to be punished.

Therefore, both provisions of Bill S-3 are flawed beyond repair, but the NDP's main reason for opposing the legislation is that in point of fact it is unnecessary. The Criminal Code can be used to attain the goals that I have spoken of today.

Many groups have spoken to the standing committee. I think we will be hearing from other speakers later in the day who have talked to Muslim and Arab groups, who know there are particular people who may be more vulnerable to these kinds of conditions under Bill S-3, just as they were under Bill C-3.

It is simply unacceptable to take something that has been a core value of this country for so long, which is that one must be guilty of something for us to punish that individual, and throw that away and say no, we just have to think that someone might think about doing something. It is unacceptable to say that we do not actually know that someone will do something, but we are still going to find that someone guilty and punish him or her by placing conditions upon that person.

It is simply unacceptable. It hits at our core values. As Canadians and as parliamentarians, we should absolutely reject any kinds of changes that go down what is a very slippery slope toward taking away the freedoms of Canadians.

Criminal Code
Government Orders

April 16th, 2008 / 5:10 p.m.
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NDP

Penny Priddy Surrey North, BC

Mr. Speaker, I am rising today to speak against Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions). I think I will be making some of the points that have been made by my colleague who spoke just before me.

I am proud that the NDP is once again taking a stand against the Conservative government for going too far. It is not being proud to take a stand against the government, but I will take a stand against a government that I think has gone too far in pursuing its national security agenda. We all believe it is important, but it is being done at the expense of civil liberties.

Ensuring public safety is essentially about protecting Canadians' quality of life. Quality of life can be defined in many ways. If we talk to our family members or next door neighbours, they would define quality of life in a variety of ways, perhaps by where they live, where they work, by their environment, whatever that might be.

In deeper conversation, though, I think two things would come out. There is the importance of finding a balance between security and freedom.

Security means feeling safe, feeling that our country and our communities are safe, feeling that we can safely go out on the street, and feeling that the federal government, our country, is protecting us. As well, Canadians want to see that security balanced with freedoms, because freedoms are something that Canadians hold dear as a principle of being Canadian.

There are the freedoms to which we are entitled, the freedoms which people have fought for and the freedoms which we enjoy on a daily basis and often do not even take the time to perhaps think about or make a list of or talk to people about. Although if we turn on the television most evenings, we would certainly be able to see countries in which many or most of those freedoms are not available to people.

For some reason, the Conservative government is either unwilling or unable to find that balance, as it has proven by introducing Bill S-3 and by the security certificate legislation that we debated in this House in January, which has some similarity to this legislation.

With both of these pieces of legislation, the Conservatives are taking the wrong approach, or an unbalanced approach, to fighting terrorism in Canada. Do we need to fight terrorism in Canada? Of course we do, but there are many tools at our disposal currently in the Criminal Code that could be used as opposed to introducing yet another set or piece of legislation.

Our country already has many appropriate mechanisms in place for charging people, for trying people and for punishing those suspected of participating in terrorist activities. These mechanisms are contained in the Criminal Code of Canada, a very significant piece of legislation which ensures that our country is protected, as I said earlier, from those who seek to do harm to others while ensuring fundamental rights are protected.

The NDP always has opposed and always will oppose any attempt to undermine those fundamental rights and freedoms upon which our judicial system was founded. Our system was founded on responsibility and freedom, which go hand in hand.

That is why we oppose the security certificate legislation. That is why we are opposed to Bill S-3. I do not think we are alone in this at all.

Many Liberals, and even some Conservatives, may privately admit that Bill S-3 is a seriously flawed piece of legislation. Certainly we saw many Liberals saying that over Bill C-3. However, knowing that this bill is fundamentally flawed and fundamentally wrong-headed did not stop the Conservatives from introducing Bill S-3 through the other door in the Senate, so to speak, the back door in the Senate, and it will not stop the Liberals, I expect, from allowing the legislation to pass.

Once again, the NDP--and I believe the Bloc, as I have just heard some of the comments--is left as the voice of reason, fighting to protect Canadian values that some other parties only pay lip service to.

Let us look at one key component of Bill S-3: the establishment of investigative hearings. These hearings would force an individual we suspect--we do not know anything, we just suspect--might have information about terrorist activity that has happened, or may happen, to testify before a judge. It forces individuals against whom we have no charge to testify before a judge.

This marks a major shift in Canadian law, which is based on a right to remain silent.

If the individual refuses to speak, he or she will be arrested and sent to prison for as long as a year, on no charge except that he or she might, we think, based on something somebody else said, know something. I am not sure whether most Canadians would consider that to be a balance between freedom and security.

As I say, the individual might go to prison for as long as a year. To some people this may not seem unreasonable at first glance. Certainly the NDP believes that anyone with knowledge of terrorist activity should be investigated and questioned. We would not deny that at all. However, we already have provisions in place under the Criminal Code of Canada for questioning those involved in criminal activity. Otherwise, we would have nobody brought before a judge and nobody arrested.

We do have the means within the Criminal Code to question people involved in criminal activity. If people think someone is involved in a terrorist activity or that something might happen or they might know that something is criminal activity, I would suggest that we have within our system a way to deal with that.

We do not need a special provision for interrogating witnesses that has a one year prison sentence as a consequence for appearing uncooperative. An individual goes before a judge. He or she may not have any information whatsoever or may wish to remain silent. Let us say that somebody says the individual appears to be or is uncooperative. We then have the right to send him or her to jail for up to a year.

That is outrageous. That is not acceptable. It is indeed acceptable to question under the Criminal Code people suspected of terrorist activity. It is not acceptable for people to be placed in jail for a year with no charge whatsoever because they appear to be uncooperative.

This undermines our current judicial system, which ensures that those who have knowledge of crimes but refuse to divulge that information face criminal charges themselves. That is what our criminal system says. Those who have knowledge of crimes and refuse to divulge it will face criminal charges.

Investigative hearings would grant new powers outside of what is normally allowed under the Criminal Code. It is an extraordinary tool that is subject to dangerous misuse. We can all stand in this House and say that it would never be misused. I do not know how often we have stood in this House or in other places of government or in our communities and said, “That is not how we meant it to be used”. It is there and there is the possibility for misuse.

Denis Barrette of the International Civil Liberties Monitoring Group appeared before the Senate committee examining Bill S-3 and spoke of the possible dangers involved in investigative hearings. He pointed out that investigative hearings allow for the compelled testimony of individuals involved in protest or dissidence entirely unrelated to our everyday understanding of terrorism. It may not be the intention, but it allows for that.

Mr. Barrette is right. Bill S-3 exposes many law-abiding Canadians to frivolous harassment and possibly even incarceration. It is a very slippery slope and one which the NDP will not condone.

This is not the only problem with investigative hearings. When the Supreme Court of Canada studied investigative hearings in 2004, it was clear that testimony gathered during the proceedings must not be used against the witness. I need to repeat this. Testimony gathered during the proceedings must not be used against the witness.

Bill S-3 does not follow the Supreme Court's direction. The legislation currently before us states that information gathered in an investigative hearing cannot be used in a criminal hearing, but the Supreme Court was clear that information gathered through an investigative hearing cannot be used against the individual in any kind of proceeding, criminal, extradition, or otherwise.

It is unclear, given this obvious disregard for what the Supreme Court of Canada has said on this matter, whether Bill S-3 would survive a challenge, as we have said about Bill C-3, but whether or not Bill S-3 is constitutional is not the issue being debated today. I call on my colleagues in this House to join with the NDP and defeat this legislation so that a Supreme Court challenge is never required. That is part one of Bill S-3.

The second part is recognizance with conditions. This is a very controversial part of Bill S-3, recognizance with conditions, or what is called preventive detention.

I am extremely disappointed to see preventive detention included in this legislation because it violates a basic tenet of our justice system, as I said earlier, that a person must be proven to be guilty of doing something or plotting something in order to be detained. That is not the case in Bill S-3.

Recognizance with conditions would allow law enforcement officials to arrest and hold people with no evidence against them. Furthermore, upon release, these individuals would be subject to conditions similar to a peace bond, but unlike a peace bond, the individuals released with conditions may have done nothing wrong. The purpose of this provision, we are told, is to allow law enforcement--

Criminal Code
Government Orders

April 16th, 2008 / 4:15 p.m.
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Fundy Royal
New Brunswick

Conservative

Rob Moore Parliamentary Secretary to the Minister of Justice and Attorney General of Canada

Mr. Speaker, I am honoured to rise today to participate in the second reading debate of Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions).

Bill S-3 was first introduced last October. The Special Committee on the Anti-terrorism Act reviewed the bill and made three amendments. The bill was passed by the Senate on March 6, 2008.

In order to ensure that all due consideration be given to this bill, it is important that we fully consider the bill, its background and the importance of this bill to Canada's law enforcement agencies. This is what I will be focusing my remarks on.

First, I will provide an overview of the bill. This bill seeks to reinstate two important powers that were created by the Anti-terrorism Act but which sunsetted on March 1, 2007. These powers are known as the investigative hearing and recognizance with conditions.

Briefly and simply put, the investigative hearing is a tool that provides the opportunity to have a peace officer bring a person before a judge to be questioned in relation to a terrorism offence, past or future. Its purpose is to enable law enforcement to investigate terrorism offences that have either been committed or that will be committed. Thus, one of its main purposes, although not its sole purpose, is to prevent the commission of a terrorism offence. All of us in the House recognize that is an extremely important objective.

The recognizance with conditions is a tool that allows a peace officer to bring a person before a judge who, after being presented with the proper evidence, may order the person to enter into a recognizance with certain conditions to prevent the commission of a terrorist activity.

Let me provide the background information that led to these provisions sunsetting in 2007.

As everyone in the House is well aware, the Anti-terrorism Act, or Bill C-36, received royal assent on December 18, 2001. Before the Anti-terrorism Act became law, Parliament heard from many witnesses on a number of issues. One of these issues had to do with the two powers that are now contained in this bill.

Witnesses voiced concern over the creation of these new powers which were previously unknown in Canadian criminal law and which appeared to constitute a threat to individual rights and liberties protected by the Canadian Charter of Rights and Freedoms. In view of those concerns, Parliament agreed to subject these powers to annual reporting requirements and a sunset clause.

In addition, section 145 of the act required that a committee or committees of Parliament begin a comprehensive review of the provisions and operations of the act within three years from the date that the Anti-terrorism Act received royal assent. Consequently, on December 9, 2004, a motion was adopted by the House of Commons authorizing the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness to begin a review of the Anti-terrorism Act. Its Subcommittee on Public Safety and National Security began its review in February 2005. The Senate adopted a similar motion on December 13, 2004 establishing a special committee to undertake a separate review.

In late 2005, Parliament was dissolved and an election was called. The work of the committees was put on hold. When Parliament resumed in early 2006, the special Senate committee was authorized to continue its review. In the House of Commons, a new Subcommittee on the Review of the Anti-terrorism Act of the House of Commons Standing Committee on Public Safety and National Security began its review of the Anti-terrorism Act.

Both committees sought and received extensions to table their final reports on the review of the Anti-terrorism Act. However, in October 2006, the House of Commons subcommittee released an interim report that addressed exclusively the use of the provisions that we are discussing today. It recommended a five year extension of these provisions, subject to a further review. However, it also recommended that the investigative hearing provision be limited to the investigation of imminent terrorist offences, not past ones. In addition, some technical amendments were also proposed.

Although this report was released in October 2006, the work of the special committee in the Senate was still ongoing. The statutory provision allowing for the renewal of these provisions by passage of a resolution through Parliament did not allow for amendments to be made to the provisions. In effect, time was running out.

In the fall of 2006 and the spring of 2007, the government thus moved toward presenting a resolution to have Parliament extend both provisions for a period of three years. On February 27, 2007 the House of Commons voted 159 to 124 against the resolution that was introduced in the House, and as a result, both provisions expired on March 1, 2007.

It is interesting to note that while this was happening, on February 22, 2007, the special Senate committee released its main report on its review of the Anti-terrorism Act. Two of its recommendations related to these provisions.

First, as was the case for the House of Commons subcommittee, it recommended these provisions be extended for a period of three years, subject to the possibility of a further extension, following resolutions passed by both houses of Parliament. Second, it recommended that the annual reporting requirements also require the Attorney General of Canada to include a clear statement, an explanation, indicating whether or not the provisions remain warranted.

One may wonder why the House voted against the renewal of these provisions when both committees reviewing the Anti-terrorism Act had recommended their extension. There were essentially three reasons given during the House debates.

One, the proposed resolution did not take into consideration the recommendations that had been made by the House of Commons subcommittee, nor the ones made by the Senate special committee.

Two, there were suggestions that these provisions were not necessary, given other powers that existed and the fact that they were rarely used.

Three, the government did not respond in a comprehensive manner to all the recommendations made by both committees that reviewed the Anti-terrorism Act.

As I mentioned, these were the three reasons or excuses why members did not vote in favour of this issue.

The issue of human rights safeguards was also raised. With regard to the first question, as I indicated earlier, in the spring of 2007 there was no time for the government to address the recommendations made by the committees reviewing the Anti-terrorism Act, as the deadline for the renewal of the provisions was too close to allow for a modified version of these powers.

Since that time the government has had time to give full consideration to the particular recommendations in relation to the investigative hearing and recognizance with conditions that were made by the committees, and has had time to implement a large number of them in this legislation.

As for the second argument, allow me, Mr. Speaker, to illustrate why it is important that these provisions be brought back through this piece of legislation.

The current absence of the investigative hearing and recognizance powers has created a serious gap in our law. I wish I could say it were not so, but unfortunately, Canada continues to be exposed to the threat of terrorism and there are no signs that this is about to stop. All of us, being honest with ourselves, know that is indeed the case.

As we all know, since the introduction of the Anti-terrorism Act in 2001, there have been horrific attacks on innocent civilians in Colombia, India, Indonesia, Iraq, Israel, Pakistan, Peru, the Philippines, the Russian Federation, Saudi Arabia, Spain, Tunisia, Turkey and the United Kingdom.

Canada and Canadians have been largely identified by leaders of al-Qaeda as targets for future terrorist attacks. Recently, a criminal trial has begun in the United Kingdom, where several persons have been charged with plotting to blow up planes crossing the Atlantic, including some Air Canada flights.

In its 2006-07 public report, CSIS confirms that terrorism remains a threat to Canada and to Canadians and indicates that the threat of terrorism from extremists posed the most immediate danger to Canada and Canadians in 2006 and 2007.

Given this obvious threat, there is no question that police and prosecutors need the powers to investigate terrorism and to disrupt terrorist activity. Representatives of our law enforcement agencies appeared before the committees reviewing the Anti-terrorism Act and indicated clearly that they needed these tools.

For all these reasons, the government believes that it is necessary to reinstate these provisions.

We must not forget that these tools are unique. There are no other powers in the Criminal Code that do what the investigative hearing and recognizance with conditions do.

Today the efforts of terrorist groups are not abating. Terrorists are displaying increasing sophistication and the ability to use diverse technologies to further their deadly activities.

To combat terrorism, law enforcement must be able to investigate effectively individuals and groups who may pose a threat to the safety and security of Canadians.

For these reasons, I ask all members to give serious consideration to the following notorious facts.

One, terrorism is a very serious and very present threat in Canada. Two, and I think this is something we can all agree on, it is best to prevent terrorist activity and not wait to sift through its aftermath. I am going to repeat that one. It is best to prevent terrorist activity rather than sift through its aftermath. Three, the nature of terrorist activity is such that it must be disrupted at the preparatory stage rather than reacting in its aftermath. Important tools that allow disruption at this stage include the tools we are proposing to reinstate through Bill S-3.

The government is convinced of the necessity to reinstate the provisions that are contained in this bill. Our law enforcement agencies need these tools and we have the responsibility to provide them so that they may be properly equipped to adequately respond to any potential terrorist threat.

Let me also respond to the third argument that has been raised to justify voting down the renewal of these provisions, the fact that the government did not respond in a comprehensive manner to all the recommendations made by both committees that reviewed the Anti-terrorism Act.

First, it was impossible at the time for the government to respond comprehensively to the reports of both committees, since when these provisions expired, the Senate committee had released its main report just a few days before and the House committee had not yet released its final report on its review of the Anti-terrorism Act.

Second, since the expiry of these original powers, the government has been engaged in efforts to respond comprehensively to the reports of both committees that reviewed the Anti-terrorism Act.

Earlier this year Parliament responded to the Supreme Court decision in Charkaoui by enacting Bill C-3, which creates a special advocate regime in the context of security certificates. The government also published last summer its response to the House of Commons subcommittee's final report on its review of the Anti-terrorism Act.

In short, this bill is part and parcel of an ongoing comprehensive approach to review the Anti-terrorism Act, an approach, I might add, that warrants full support by all members.

Canada Marine Act
Government Orders

April 11th, 2008 / 10:25 a.m.
See context

Liberal

Massimo Pacetti Saint-Léonard—Saint-Michel, QC

Mr. Speaker, it is a pleasure to join the debate today from a Liberal Party perspective on Bill C-23, An Act to amend the Canada Marine Act, the Canada Transportation Act, the Pilotage Act and other Acts in consequence. This bill is mainly comprised of technical changes and amendments.

Normally, when the House receives bills of this technical nature, members of Parliament will often rely on the bureaucrats to highlight deficiencies in the present act or acts. In this case it is my understanding that the transport committee has made changes based on consultation with all stakeholders and this bill has everyone's support.

It is common knowledge that transportation in Canada is essential. And when I talk about transportation, I am talking about all types of transportation, including water, road, air transportation and so on.

Transportation has always been an essential part of building this country from the beginning, when our forefathers came here by boat and continued to use seaways as a primary mode of transportation until the invention of airplanes.

Furthermore, let us not forget that water was one of the few efficient ways of travel in Canada's formative years. And then, how can we forget, the building of Canada's railway from east to west which was the cornerstone of unifying and keeping this country together.

Things have evolved and our way of doing things has changed, but the transportation sector is still essential to this country's economy. The Liberal Party has always been a part of the transportation sector's evolution.

There is no denying that the Liberal Party, whether in government or in opposition, has always been a part of laying the groundwork to ensure that we have a network of infrastructure and transportation to allow this wonderful country to reach its fullest economic potential.

Our Canadian ports are fundamental to the development of trade. They enhance the opportunities for every Canadian to access our abundant natural resources across the country, so that they can be sold to foreign markets that can utilize the product for value added or for direct consumption.

Trade is a key factor in the Canadian economy and without the necessary infrastructure and means of transportation, Canada would be unable to reach its maximum potential to benefit all Canadians.

With that being said, as parliamentarians we cannot afford to miss opportunities to promote our Canadian ports. These kinds of initiatives would compel us to utilize portions of our infrastructure funds, in addition stimulate our rail network and a pan-Canadian road network to encourage growth, and to develop an economy that goes beyond a micro-economy and expand it to a regional and national one.

In 1998, under 13 years of successful Liberal government, the Canada Marine Act received royal assent. The Canada Marine Act was the first comprehensive piece of legislation to govern several aspects of Canada's transport legislation.

The Canada Marine Act was a component in the commercialization of the St. Lawrence Seaway, the framework for a strategic gateway and trade corridors, and included provisions for the further commercialization of federal ferry services.

In 2003, a review of the legislation was compiled to ensure that the government continued to make all the ports in Canada economically competitive, specifically ports in British Columbia, Ontario, Quebec and the Atlantic provinces.

May I remind the Conservative government that the bill before us comes from a Liberal bill, formerly C-61. I am pleased that the Conservatives have the ability to recognize good fundamental pieces of legislation that are beneficial to the Canadian economy and place partisanship aside.

If it were not for the NDP and the Bloc forcing an election, good pieces of legislation such as Bill C-23, Bill C-7, Bill C-3, Bill C-11 and Bill C-8, all based on Liberal transport bills which died on the order paper, could have been passed much sooner.

The Standing Committee on Transport, Infrastructure and Communities heard from port authorities, other stakeholders and read written submissions to the committee on Bill C-23. An overwhelming consensus between stakeholders seems to exist, indicating that the committee should move forward and adopt Bill C-23 which is why we are debating this in the House today.

Some of the benefits of Bill C-23 include access to contribution funding. The fact that access to contribution funding will now be permitted, the Canada Port Authority can apply for contribution funding for infrastructure and security for environmentally sustainable projects.

The bill also addresses governance. With the changes in the governance policy in the Canada Marine Act, the port authorities would now be more in control of their destiny as they would have the ability to promote a more stable, long term management framework.

Bill C-23 would also allow for borrowing limits. With this act, the port authorities would now have the ability to borrow and, thus, would directly allow the Vancouver Port Authority, the Montreal Port Authority and the Halifax Port Authority to move to a commercially based borrowing system.

Bill C-23 would also allow for amalgamation. In the act, the Fraser River port, the North Fraser Port, would be allowed to amalgamate with the Vancouver Port, which would allow for a centralized body and would, in turn, be beneficial to all British Columbian ports in terms of efficiency, whether it be financial resources, human resources or other benefits that would arise from centralization.

The bill also addresses enforcement. Bill C-23 would also give the port authorities the ability to enforce minor violations by having the ability to impose monetary penalties, making it easier to enforce and manage minor violations.

Again, it is my understanding from members of the transport committee, and I cannot stress this enough, that all the stakeholders appearing before the committee spoke positively toward the bill. Members in the House should not confuse the positive aspects which came out of the committee that considered, deliberated and debated Bill C-23.

I urge all members to support the legislation for the good of the Canadian economy.

Immigration and Refugee Protection Act
Routine Proceedings

March 4th, 2008 / 10:05 a.m.
See context

Liberal

Omar Alghabra Mississauga—Erindale, ON

moved for leave to introduce Bill C-523, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make consequential amendments to other Acts.

Mr. Speaker, I am pleased to have the opportunity to table a bill to amend security certificates after the Conservative government chose to suffocate debate on Bill C-3, which has just passed. Even Conservative Senator Nolin acknowledged that he had to hold his nose and adopt that bill because of the lack of time provided by the government.

Witnesses before legislative committees provided us with compelling evidence on why the law formerly known as Bill C-3 is flawed. This debate is not over. Canadians deserve a more fulsome discussion. This is my contribution to the debate. It is based on recommendations I gathered from legal experts.

(Motions deemed adopted, bill read the first time and printed)

Committee Amendments to Bill C-21
Points of Order
Oral Questions

February 14th, 2008 / 3:10 p.m.
See context

Winnipeg South
Manitoba

Conservative

Rod Bruinooge Parliamentary Secretary to the Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians

Mr. Speaker, I rise on a point of order to seek a ruling on whether two amendments to Bill C-21, adopted by the Standing Committee on Aboriginal Affairs and Northern Development, are in order. I submit that these two amendments are actually out of order because they are beyond the scope of Bill C-21 that was set at second reading.

Bill C-21 was referred to committee after second reading, as we all know, and page 654 of Marleau and Montpetit states:

An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.

I would like to emphasize that the bill was adopted at second reading and had a very narrow scope. Namely, it contained just three specific items: first, it repealed section 67 of the Canadian Human Rights Act; second, it provided for a parliamentary review of the repeal of section 67 within five years; and third, it included a transitional provision concerning the implementation of the repeal of section 67.

Page 661 of Marleau and Montpetit states:

Since a committee may appeal the decision of its Chair and reverse that decision, it may happen that a committee will report a bill with amendments that were initially ruled by the Chairman to be out of order. The admissibility of those amendments, and of any other amendments made by a committee, may therefore be challenged on procedural grounds when the House resumes its consideration of the bill at report stage. The admissibility of the amendments is then considered by the Speaker of the House, whether in response to a point of order or on his or her own initiative.

This passage flows from a Speaker's ruling from 1993 when the members of a committee rejected the decision of their chair, who had ruled three proposed amendments to a bill to be out of order. The amendments were then adopted by the committee and included in the report to the House.

Following a point of order raised in the House in respect of this matter, the Speaker upheld the ruling of the chair and ordered that the three amendments be struck from the bill.

Marleau and Montpetit, on page 662, also cites a 1992 ruling by Speaker Fraser. It reads in part:

“When a bill is referred to a standing or legislative committee of the House, that committee is...restricted in its examination in a number of ways...it cannot go beyond the scope of the bill as passed at second reading, and it cannot reach back to the parent act to make further amendments not contemplated in the bill no matter how tempting this may be”.

The first amendment to which I wish to bring to the Speaker's attention is an interpretive clause, which was added as a new clause, clause 1.2, to the bill. This amendment was ruled inadmissible by the chair because it is beyond the scope of Bill C-21.

During the committee's consideration of this amendment, the member for Nunavut stated:

I don't believe we are asking for too much beyond the scope...I want to take it into the House of Commons for further consideration and see how the ruling would be on that in the House of Commons.

Notwithstanding the acknowledged uncertainty of the member for Nunavut with respect to the admissibility of this amendment, the chair's decision was overruled by the committee, which then adopted this amendment.

The second amendment to which I wish to draw to the Speaker's attention is a non-derogation clause, which was also added as a new clause, clause 1.1, to this bill. While the chair did not raise admissibility concerns with the amendment, this new clause clearly adds a new purpose to the bill and is therefore beyond the scope of Bill C-21.

As I have noted, the purpose of this bill is to repeal section 67 of the Canadian Human Rights Act.

Since the bill is silent on how the Canadian Human Rights Act should be interpreted and applied to first nations, I submit that the amendment to add an interpretive clause and the amendment to add a non-derogation clause exceeds the scope of this bill.

Both of these amendments are beyond the scope of the bill by attempting to prescribe how the Canadian Human Rights Act should be interpreted and applied to first nations people on reserve. Since the purpose of the bill is to bring first nations people the basic human rights that every other Canadian enjoys, I question why the opposition would want to water them down.

What is more disturbing is that the opposition was willing to achieve this goal by overriding a fundamental principle of parliamentary legislative practice. It overruled the chair, who rightly ruled an amendment out of order because it went beyond the scope of this bill. These amendments attempt to bring back much of the intent of section 67, which, of course, the bill proposed to repeal.

I believe this view has been supported by the Speaker in his ruling of February 27, 2007 on Bill C-257, which states:

Given the very narrow scope of Bill C-257, any amendment to the bill must stay within the very limited parameters set by the provisions of the Canada Labour Code that are amended by the bill...They argue that these amendments are admissible for they only make clearer the bill's provisions...However, I fear that their views are precisely what Mr. Speaker Fraser meant in the 1992 ruling...when he warned members against being led into the temptation of amendments not contemplated in the original bill.

On Tuesday, January 29, 2008 in a decision on the admissibility of an amendment that was beyond the scope of Bill C-3, the Speaker ruled:

The amendment was ruled inadmissible by the committee chair on the grounds that it was beyond the scope of the bill. It was contended that on the contrary his amendment was within the scope of the bill because it simply expanded the appeal provision already contained in the bill.

Admittedly, the hon. member’s amendment deals with this same principle, namely the right to appeal, but where it goes beyond the scope of the bill is in relation to the conditions under which the appeal may be made...Consequently, even if the principle remains the same, its scope is clearly expanded.

Any attempt to establish how the Canadian Human Rights Act is interpreted and applied to first nations people should be seen as an expansion of the scope of this bill since this clearly introduces new issues which were not part of Bill C-21 as originally introduced.

I would like to conclude by stating that these two amendments, particularly the nature of the interpretive provision, would undermine the universality of human rights principles embodied in the Canadian Human Rights Act and the very purpose of Bill C-21, which was simply to repeal section 67 of the Canadian Human Rights Act. Clearly, these two are beyond the very narrow scope of the original bill.

Mr. Speaker, if you agree that these amendments are out of order, I would suggest that they be removed from the bill, as you did in your previous ruling on February 27, 2007.

February 14th, 2008 / 1:55 p.m.
See context

Conservative

The Acting Speaker Andrew Scheer

I have the honour to inform the House that a communication has been received as follows:

Rideau Hall

Ottawa

February 14, 2008

Mr. Speaker,

I have the honour to inform you that the Right Honourable Michaëlle Jean, Governor General of Canada, signified royal assent by written declaration to the bills listed in the Schedule to this letter on the 14th day of February, 2008, at 9:42 a.m.

Yours sincerely,

Sheila-Marie Cook

Secretary to the Governor General and Herald Chancellor

The schedule indicates the bills assented to were Bills C-11, An Act to give effect to the Nunavik Inuit Land Claims Agreement and to make a consequential amendment to another Act—Chapter 2; C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act—Chapter 3; and S-220, An Act respecting a National Blood Donor Week—Chapter 4.

February 14th, 2008 / 12:50 p.m.
See context

Conservative

Pierre Lemieux Glengarry—Prescott—Russell, ON

Mr. Chair, there was actually another point from the Muslim Canadian Congress. Ms. Hassan said, “Even for women who believe that it is a religious requirement, they would not practise it as rigidly, and if they were asked to comply with a certain regulation, they would. So it's not an issue.”

Again we have, in a different statement, a comment saying that even if it were.... It is interesting that she says, “Even for women who believe that it is a religious requirement”, because earlier she was saying that requirement is not necessarily there, but she's trying to accommodate that in saying that they would not practise it as rigidly, that they would comply with a certain regulation, and that it's not an issue. It only seems to be an issue with Elections Canada. It does not seem to be an issue with the Muslim community. It does not seem to be an issue for the rest of Canadians. So that's why this matter must be addressed, and addressed as a priority issue.

Chair, it's important that Bill C-6 not languish. It's important that Bill C-6 be given the attention it deserves as a bill that has been passed by MPs in the House. Again, this gets--not “again”, actually; this is the first time I'm mentioning it--to the crux of the matter. What gets to the crux of the matter is that MPs are elected by Canadians, and so it is truly right and correct to say that they are the representatives of the people of their constituency. As MPs representing Canadians, we have brought forward this bill concerning the electoral process and the identification of voters.

It is somewhat disconcerting to realize that if the opposition were really sincere in their intention to move with Bill C-6 in this committee--in which we are outvoted--it could have been done a long time ago, and we in fact could have had this out; we could have had it passed into law, and it would beneficially impact elections.

Instead, what we've had to endure is partisan posturing, partisan motions, partisan politics, in trying to take advantage of a situation in which there truly is no advantage. When we tried to level the playing field and tried to say we were acting both according to the letter of the law, which is important, and in the spirit of the law, and that all parties were acting that way, they rebuffed that. They've taken something that could have been addressed in a very efficacious manner and instead have drawn it out into a long process, a process that I think has been detrimental to addressing these more important issues, such as Bill C-6.

I mentioned it is not just Bill C-6. I do have this concern that we actually have a statutory requirement to review the provisions of Bill C-3 by May 11, 2008, so we're talking about a statutory requirement to move ahead. Instead, we're being stalled as a committee in terms of doing what I call real work. This is real work, a statutory obligation. It is real work. We're being stalled by the opposition, which is moving forward with partisan manoeuvres to take advantage of a situation in which all parties have acted in the same manner and in accordance with the law.

There is other work, of course, in front of the committee. There is this one here, the conflict of interest code for members of the House of Commons. There were forms on November 2, 2007; the commissioner sent the committee draft forms for its approval, if you can imagine. We're talking over three months ago. The commissioner also requested the approval of the committee before posting online the public registry. The committee sent a letter to the commissioner regarding the forms under the code, and the commissioner appeared before the subcommittee.

But this is still an open item of business, Chair. Here we have an officer of Parliament who has asked the committee to do some work. And instead, we've been floundering, with opposition motions and subcommittee reports.

Again, to clarify, really to underline what my good friend and colleague Joe Preston was saying at the last meeting, the steering committee itself is quite biased. I respect your presence there, Mr. Chair. But you know, and committee members know, and I hope Canadians will now know after I make this statement--although they could have read Mr. Preston's testimony--that you do not play an active role in terms of determining the business of the committee. In fact, you can't even vote. So it's a very lopsided, one-sided affair on that committee.

Mr. Chair, I'm just pointing out the fact that future work.... Bill C-6 is future work. I'm pointing out that there is other future work and that the steering committee, where some of this other work comes from, is dominated by the opposition. If they really wanted to get some real work done--the important work of the committee--they could do this, they could accomplish this, at the steering committee. Instead, they're launching these partisan-type attacks and trying to take advantage of the process and procedures of the committee for their partisan advantage. This is not to the advantage of Canadians. This is not to the advantage of Parliament. This is to their own partisan advantage.

We have proposed a change to that subcommittee, Mr. Chair. We feel that we should have a voice, not just a body on the committee who can't participate in determining future business and who cannot vote in terms of future business. We feel that we should have an active participant in the subcommittee process, because the subcommittee plays a key role in determining the future business of the committee.

Immigration and Refugee Protection Act
Government Orders

February 6th, 2008 / 3:05 p.m.
See context

Liberal

The Speaker Peter Milliken

It being 3:07 p.m. the House will now proceed to the taking of the deferred recorded division on the previous question at the third reading stage of Bill C-3.

Call in the members.

The House resumed from February 5 consideration of the motion that Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, be read the third time and passed, and of the motion that this question be now put.

Immigration and Refugee Protection Act
Government Orders

February 5th, 2008 / 8:05 p.m.
See context

NDP

Joe Comartin Windsor—Tecumseh, ON

Mr. Speaker, I think I will be the last person to address the House tonight on Bill C-3. For me, this brings to an end, given what we anticipate the vote will be tomorrow by the Conservatives and the Liberals, a phase of fighting the security certificates and the use of those documents and that procedure in our jurisdiction in Canada.

On behalf of myself and my party, we are vehemently opposed to the use of this device. We have been for a very long period of time. This device is so fundamentally against the values of our criminal justice system, the values that we hold, I thought sacred, around human rights and civil liberties.

This process, this device puts a lie to the proud tradition that we have had in the country, of working, anticipating maybe never to get to perfection, toward respecting human rights.

We have historically had abuses: the War Measures Act; the way we treated the Japanese Canadians during the second world war and members from the Italian and Germany communities as well in both the first and the second world war; and some of the treatment we have had with regard to the Jewish community and the Sikh community.

Historically, every time we go back and look at this, we have always done that abuse. We broke away from our core values as a populace because we were afraid. We acted in fear and panic. When I say we, I do not mean the Canadian people so much as I mean legislators, the policy-makers, the decision makers.

The invocation of the War Measures Act in 1970 was a classic of that. So was the decision in 1939 to move the Japanese Canadians away from their homes, their businesses, incarcerate them for the whole war and take away all their assets.

The security certificates are a continuation of that kind of fear and panic by the decision makers. The House will repeat that same kind of sordid decision making tomorrow. We are doing it not because we need to do it, because we do not. We are doing it because we are afraid. We think the war on terrorism can only be fought, can only be won, by using this type of a device.

The first step we take down that road we have failed, we have lost the war. We are saying to those people, who would use criminal conduct, violent acts, to gain a political end is that if they threaten us with that, we are going to give up our values. We are going to give up the protections. We are going to give up our respect for human rights and the protection of civil liberties in the country.

Thirty-odd years ago we brought this in. In many respects, if we go back and study what happened at that time, we brought this in because it was more convenient to use this device to get people out of the country. Security certificates can only be used against people who are not Canadian citizens. Again, it was a very bad decision, justifying the use of these devices for the sake of convenience, to make it a little easier to get people out of the country. As so often happens, when we make those kind of bad decisions, we do not see the unintended consequences.

If we study the 20-odd certificates that we used against people until 9/11, we could argue there was no substantial abuse. There were a couple of notorious cases that worked their way all the way up to the Supreme Court of Canada. However, we could salve our consciences and say that nobody was badly hurt most of the time when we used it, if the people left the country voluntarily.

One of the cases was before 9/11, but six more came after. It was coupled with the reality of the Supreme Court of Canada making the crucial decision. It said that people could not be deported to their country of origin if there were a reasonable apprehension of torture or death or risk to their personal safety. That case came down shortly before 9/11 and after that we decided to use the certificates more extensively.

This again is one of the shames. Inasmuch as neither the former Liberal administration or the current Conservative administration would like to acknowledge this, we use them exclusively, with one exception, against the Muslim population in our country. It is not a coincidence. We are running in fear because of all the paranoia we hear from the U.S. We succumbed to that fear and that pressure from the Americans and we used these certificates in these five or six cases.

Again, 10 or 20 years from now, when historians look back at this timeframe, they will say “much as we did after 1970”. The administration, first the Liberals and now the Conservatives, did not have the courage to stand and say that our essential values as a country were stronger than any violence with which we were threatened. We can withstand that without giving up our civil liberties and our human rights.

What do we see happening with those unintended consequences? It ended up as five cases. Because of the Supreme Court of Canada decision, we invoke the terms of that order and the applications are made consistently through our courts. We cannot send the individuals back even though they do not know what they are charged with or accused of. They cannot be sent back because there is a risk they will be tortured and put to death. Those cases are still being fought in the courts. Our justice department and security services are fighting them on behalf of the government. Individuals and their counsel are fighting them the other way.

The bottom line is we have been caught. Those certificates are unable to do the job. We cannot get them out of the country and we are left with this in our hands. We are left with the abuse. It is very clear to anyone who comes from any kind of a civil liberties, human rights background looking at this objectively. The system is wrong and it is not working. It is not even effective.

As a society, as the government, we are left having to deal with those five cases, people in custody for indefinite periods of time, not charged and not aware of what the allegations are against them in the vast majority of cases. Therefore, we are left with this situation and there is no end to this.

I want to go back to the Suresh case, which went to the Supreme Court of Canada. It has been going on for 20 years. He is an individual who is not from a Muslim background. A determination was that he could not be sent back to his country. He was ultimately released after many years. He is still subject to it. He is living in our country and for almost 20 years he has posed no threat to us. He has certainly not accomplished any violence in the country whatsoever.

That is one of the older cases, but we have these other cases sitting here. People who have been incarcerated are now out, with the exception, as my colleague mentioned, of the one who is still in prison in Kingston. But all the rest who are out are living under very difficult circumstances, again with no hope, either by them or by us, that is, the government, that it is ever going to be resolved. It is just going to be an indefinite incarceration with no end in sight, ever.

That is the unintended consequence. It is so typical. When we go to that extreme, which is what I see security certificates being, of undermining those basic values that all Canadians believe in, then, in a fear and a panic, we say that we are going to compromise.

We hear all the time that we have to find a balance. The problem when we make the decisions is that the balance is always on the side of restricting rights and in fact we do not find that balance, because again, we do not have the courage to believe in the fundamental values, those rights that we have built since the start of this country and even preceding it, going back into the history that we have from our two founding nations, those rights that we built all through that period of time up to the present. If we do not believe in them, if we do not act on them and if we do not protect them, then it is downhill.

We are going to be faced in the next little while with another attempt. That is part of the problem with the security certificates. It opens the door to us further impinging on our civil liberties. We are going to see, I think some time in the next little while, the government attempting to reinstate some provisions of the anti-terrorism legislation that died about a year ago. It is going to attempt to reinstate them. It will be interesting to see if the official opposition supports that. I think it probably will, with some modification.

But that again, coming back to the certificates, leads us down that path. When we say, as we do with the certificates, that people are not entitled to know the charges against them and that their lawyers are not entitled to know the charges against them, they are sitting there, as with Kafka, having absolutely no ability to defend themselves.

In that regard, it is worthwhile pointing out the experience in England and New Zealand, particularly in England, where they brought in special advocates. The government is proposing to do it here in a very minimalist form compared to that in England. Even then, we had the special advocates quitting. These were lawyers who were extremely experienced, with 20 and 30 years at the bar, mostly in the criminal law area and some in the immigration law area. Even with provisions in their law that were much broader and gave them more authority to be able to defend an individual, even under those circumstances, they quit.

I remember one in particular, Ian Macdonald, writing a very eloquent resignation letter and almost I think apologetically saying that he did this for a number of years, that he was hoping he could make the system work, that is, he was hoping that he could provide protection but make the system work, to advocate on behalf of his client at one remove but be able to do that. Then again, almost apologetically, he was saying that he was wrong, the system cannot be made to work, and he cannot be a real advocate to protect the rights of an individual faced with this procedure.

We have seen similar types of situations in New Zealand. We have seen the commentary from the special advocates there, who were saying that if people did not let them see the evidence and if people did not let them discuss what they did see of the evidence with the person alleged to have perpetrated these crimes, there was nothing they could do, because they could not realistically defend them. That is the reality.

This bill is doubly bad. There was a report by two people, a law professor and a practising lawyer. I have it in front of me. It was a very lengthy report and analysis of special advocacy around the world. In this report, the two authors made a number of recommendations.

With regard to special advocates, I know that both of them were reluctant to suggest that we go that route, but that if we are going to do it, they said, we have to build in all of these protections. We have to give this mandate to the special advocate. We have to provide him or her with these resources. We have to say that he or she is going to have access to the evidence and be able, in most cases, to discuss that evidence.

There is a whole long list of suggestions in the report, but in Bill C-3, the government, supported by the official opposition, adopted hardly any of them. The reason is that it does not want these certificates to be impinged on whatsoever. It wants to be able to use them in their full force. Again, we have heard about the kind of treatment that the people who are subject to these certificates are put through, whether they are in custody or out and living under various forms of house arrest with severe restrictions on their mobility.

There was no intention on the part of the government to really meet the decision it was faced with almost a year ago from the Supreme Court of Canada. The Supreme Court of Canada said that with the certificates as they are, the system is contrary to the Charter of Rights and Freedoms, and in a free and democratic society, it said, it cannot be resolved that way either. It applied both parts of the charter and said that this system does infringe, and no, it cannot be resolved by article 1 of the charter.

A band-aid approach was applied here and it was a minimalist band-aid. I have no doubt in saying while standing in the House--and I rarely do this--that I know that probably within days of this law receiving royal assent it will be challenged again, and it will work itself all the way back to the Supreme Court of Canada.

I am hoping, and I have to say that I am expecting, based on the decision a year ago, that the Supreme Court of Canada will strike this bill down again. Hopefully at that point it will say to the government that the government was given a chance, but that this time the certificates are gone and there is no chance to correct them. Hopefully it will say to the government that it has to use the regular criminal justice system and immigration law to resolve issues that these individuals present to the authorities in this country.

It is the responsibility of this legislature to have paid attention to that Supreme Court of Canada decision and we are not doing it with Bill C-3. When the Supreme Court hears the evidence of how it functions and, more importantly, how it does not function in terms of protecting human rights and civil liberties, I have a very strong belief that it will strike this down.

We will have gone through this process, we will have put those individuals through all that pain, and at the end of the day the certificates will be struck down from our law. I cannot wait for that day.

Immigration and Refugee Protection Act
Government Orders

February 5th, 2008 / 7:40 p.m.
See context

NDP

Bill Siksay Burnaby—Douglas, BC

Mr. Speaker, I am pleased to have this opportunity to participate in the third reading debate of Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate).

As we know, this legislation deals with the security certificate process that is part of Canada's immigration act. We are debating it tonight because in February 2007, as a result of an action in the Supreme Court, that process was ruled by the Supreme Court to be unconstitutional.

In reality, the security certificate process is an expedited deportation process. It is a removal process for people who are considered to have violated immigration law. It is in the immigration law and applies only to permanent residents and visitors, not to Canadian citizens. My sense is that this expedited removal process should be used only for problems with immigration law. It should be used only for immigration purposes.

Unfortunately, that is not how I see it being used. I see it being used as a back door to dealing with issues of terrorism, national security, espionage and organized crime. I see it as a lesser mechanism for dealing with problems of our criminal justice system that we cannot get at with the Criminal Code, or that we apparently cannot get at, because I am not convinced that is in fact the reality of the situation.

I see this as a very deeply flawed process. It allows for indefinite detention without charge, without trial or without conviction for people who are accused of terrorism, espionage, threats to Canadian security, or participation in organized crime. Again, I want to stress that this is not a process that results in a charge or a trial or a conviction, but it does allow someone to be detained indefinitely on the suspicion of those serious crimes.

It denies the person accused, the person named, the person detained, a fair hearing. It means that such persons do not have the usual access to some of the principles and safeguards of our criminal justice system. There is a lower standard of proof in these security certificate cases. The accusations against the person do not have to be proven beyond a reasonable doubt, as they would in a criminal court. It is a lesser burden of proof on the balance of probabilities and I think that is a very serious flaw with the process as well.

It is hard for the accused to test the evidence against them, partly because they or their lawyer do not know all of the evidence against them so the usual rules about how we would test evidence presented in court do not apply in these cases. It is a very serious matter, I think, that all the evidence is not available to the accused and their lawyer.

Another serious flaw with this process is that it could allow deportation to torture or persecution in another country. That is a very serious problem and it is indeed probably why a number of these people are still here. The government will consistently point out that these people are free to leave Canada at any time. While that is true, it really begs the question of what is possible for people who have been accused of these very serious crimes, who have been accused of terrorism but have never been shown to be guilty of that terrible crime.

They do not have any options in terms of actually leaving Canada after that kind of accusation has been levelled, especially given some of the countries they are from, where we know if they were returned they would most certainly be imprisoned and they might also face torture, because many of those jurisdictions do regularly practise torture. They might even face death.

When people say that we need to maintain this security certificate process as a way of dealing with accusations of terrorism, I cannot agree, because I believe that it is a very serious compromise of our criminal justice system. It compromises some very hard won principles of our justice system.

We are dealing here with some of the most serious accusations, some of the most serious charges, that could be levelled against anyone in our society, accusations of terrorism, espionage, security threats or organized crime. I cannot think of many criminal activities that would be judged more serious by Canadians.

Unfortunately, the goal of the security certificate is merely to get people out of the country. Its goal is not to charge and convict them of those crimes or to punish them for those crimes. It is merely to see that they are not around here any longer.

There is no attempt to make sure that people would be charged and there is also no attempt to ensure that they would be charged in their country of origin. It is not like an extradition process where we are extraditing them to their home country or another jurisdiction where they would face a charge or trial for these serious crimes.

In a sense, it lets somebody who is accused of very serious criminality off the hook if they agree to leave the country. It does not allow for any punishment or any proof of a very serious crime.

I do not think security certificates make Canada or Canadians any safer. I do not think it deals with these very serious criminal matters. Crimes that should be prosecuted are crimes related to terrorism and national security.

If there are problems with our Criminal Code that make it impossible to charge these people, then we should be addressing those problems, not relying on some lesser mechanism in the immigration law to indefinitely incarcerate them and put them in a position of removing themselves voluntarily. That is a problematic way to approach these very serious crimes.

This afternoon the parliamentary secretary noted in debate, and I think he was touting this as a virtue of the legislation, that in the past year someone who had been accused of industrial espionage had voluntarily left Canada. It seems to me that the charge of industrial espionage, or espionage of any kind, is a very serious criminal matter. Why that person was allowed to leave and never charged, or sent to trial and convicted and punished for that kind of crime, is really beyond me.

It seems to me that we actually could be tougher on crime in that sense by ensuring that those very serious crimes are prosecuted here in Canada. If there is a problem with our Criminal Code that does not allow that to happen, then we should be fixing that problem rather than relying on some lesser mechanism to get at that person.

Most Canadians that I have spoken with are shocked to know that indefinite detention without trial can happen in Canada, but that has been happening under the terms of these security certificates. That is a significant and untenable compromise of our criminal justice system, and that opinion is shared by many Canadians.

People just cannot believe that we would put individuals in jail indefinitely, having never charged or convicted them in a court of law. That seems beyond the pale for most Canadians.

We have heard a number of times that there are six people currently subject to security certificates in Canada. I think security certificates have been used about 28 times since the process was included in our immigration law. Five of those people have been served with certificates since September 11, 2001. Those men are Hassan Almrei, Mohammad Mahjoub, Mahmoud Jaballah, Mohamed Harkat and Adil Charkaoui. All of these men happen to be Muslim and Arab men, which also causes me some great concern.

I want to talk a bit about what this security certificate process has meant to the people who are subject to them right now and I want to start by talking about the situation of Hassan Almrei.

Mr. Almrei has been in detention since just after September 11, 2001. He is currently being held at the Kingston Immigration Holding Centre, which was purposely built to hold security certificate detainees. It is a maximum security facility actually within the grounds of Millhaven maximum security federal penitentiary. Mr. Almrei is the only one of the five who is still in jail and is in his seventh year of detention. This detention centre was built to hold up to six prisoners and Mr. Almrei is currently the only one being held there.

The course of Mr. Almrei's detention has been fraught with serious problems that I think would offend many Canadians. For instance, when he was held at the Metro West Detention Centre in Toronto before the Kingston Immigration Holding Centre was built, Mr. Almrei actually had to go on a hunger strike to obtain a pair of shoes.

Those were the kinds of conditions under which he was being held. He was not even allowed a pair of shoes. He ended up on a hunger strike for many days to obtain a pair of shoes. I think that would be unacceptable to most Canadians. Yet, that has been a constant feature of Mr. Almrei's struggle while detained on this security certificate.

Last year he was on a hunger strike for 156 days. He drank nothing but water and orange juice. It is hard to imagine anyone surviving for that length of time on a hunger strike. It was very precarious at the end and many of us were very concerned for Mr. Almrei's life.

Again, he was on the hunger strike to protest the conditions of his imprisonment, not the overall problem of security certificates but the specific conditions at the Kingston Immigration Holding Centre under which he was being held. That someone would have to go to that extent, to risk his life to protest the conditions of his detention, is very serious, especially when the person has never been charged or convicted of a crime in Canada.

At KIHC there is no programming for the people detained there. Unlike a federal penitentiary, where there are many options for people who are incarcerated there, there is nothing available to a security certificate detainee, nothing available to Mr. Almrei.

I am also very concerned about the fact that Mr. Almrei is the only prisoner at the Kingston Immigration Holding Centre. I believe that this is an issue of solitary confinement. I think it would shock most Canadians that some people could be held alone in a jail for almost a year all by themselves. There are serious implications from that.

This past December in Istanbul an international group of experts on solitary confinement and incarceration met to discuss the issue of solitary confinement. They mentioned a number of very serious issues that have to be considered and Mr. Almrei's situation corresponds to a number of those, issues like no regular social contact. The reality is that at the Kingston Immigration Holding Centre Mr. Almrei has no social contact with anyone other than guards, who most of the time are unwilling to engage him socially. They watch him.

The kind of psychological pressure that kind of situation puts on someone for an extended period of time is extremely serious and I think I am backed by the international experts. Mr. Almrei has no family in Canada, so he does not receive regular visits from people with whom he has a strong personal and loving relationship. It has often seemed to me that the intent of his incarceration and the conditions under which he is held are intended to force him to make the decision to leave Canada voluntarily. That also has very serious implications.

I will quote a sentence from the statement that these experts made in Istanbul back in December. They said, “When isolation regimes are intentionally used to apply psychological pressure on prisoners, such practices become coercive and should be absolutely prohibited”.

In the sense of this three walled prison, the conditions are very difficult and the social contacts are very limited. The only option is to say, “I give up and I want to leave”.

As my colleague from Marc-Aurèle-Fortin mentioned earlier, it is not really a three walled prison. It is a prison with three walls and a huge cliff because we know what the dangers are if he decides to leave Canada and return to Syria. It would mean almost certainly that he would be jailed, tortured and possibly even put to death. That is just not an option. By limiting that, we are adding to the conditions around solitary confinement that make this a very serious concern.

The other thing I wanted to mention about Mr. Almrei's situation is the fact that he is still in detention indefinitely is related to the fact that he has no relatives in Canada. The other four men who have been detained from time to time have been released because they have a relative, generally a spouse, who is willing to act as their jailer on behalf of Canada. They are willing to be with that person 24 hours a day, to know their whereabouts at all times, and to be present with them at all times.

Unfortunately, Mr. Almrei has no spouse, so he has no one who is willing to take that responsibility of behalf of Canadian society. There have been other people from the community who have been willing to offer some kind of arrangement with regard to this, but the courts have not seen fit to allow that to happen.

That is a huge problem. The fact that someone has remained in jail and detained indefinitely in solitary confinement, essentially, in this purpose built correctional institution, this purpose built detention centre, and the only reason he is still there is that he does not have a relative who is willing to act as his jailer outside of that institution.

I think the effect on the other people who have been released is also very significant because being out on the kind of release conditions that the other four men are subject to is no picnic, to put it mildly. These are the most strict release conditions ever in Canadian history.

As I mentioned earlier, they are all required to be supervised by a family member 24 hours a day, seven days a week, without exception and often by the same family member, or one or two family members. So, it is a very limited number of people who can do that. Their ability to leave their homes is limited.

They are wearing ankle bracelets and global positioning devices. Some of them have cameras in their homes where they can be monitored that way. Their trips outside of the house, the time of that, is very limited, but they all have to be pre-approved, as do visits from people, who have to be screened before they can be allowed to visit.

This puts huge stress on families. It puts huge stress on the spouses of these men and on their children. I think it is a tribute to the strength of the relationships in those families, to the strength of the relationships between those men and their spouses, that those relationships have held up under these terrible conditions.

I do not think any of us can imagine having to spend 24 hours a day with our spouse or to have our spouse take the kind of jailer responsibility over us that these spouses have been required under the law. I think that we need to recognize the strength of those relationships that they still continue.

Again, I just want to stress that this is all happening to men who have never been charged and never been convicted of a crime. It is hard to believe that this is going on here in Canada.

This legislation supposedly presented us with a fix, a special advocate, a lawyer appointed by the court, who would be allowed to see more of the evidence and act on behalf of the security certificate detainee. I do not think that is a fix. I think it amounts to nothing more than tinkering with very flawed legislation.

We have had similar systems in place in other countries, like the United Kingdom and New Zealand. Some of the special advocates in the United Kingdom actually quit their jobs because they could not countenance continuing to participate in that process in that same way. In fact, one of them said that the special advocacy process merely added a fig leaf of respectability to a very flawed process.

It also flies in the face of one of the key principles of our justice system in that people should be able to choose their own lawyer and have someone representing them in these matters they have chosen and they trust.

I think it is very interesting that the federal government in anticipation, I hope premature, of the passage of this legislation has been trying to find lawyers who are willing to act as special advocates and has only had about 50 applications, and has had to extend the application period.

I think that goes to the fact that many lawyers in Canada, if not most lawyers in Canada, appreciate the difficulties of this legislation, appreciate the difficulty of the role of a special advocate, and do not support that kind of arrange.

I think we could have done a much better job of addressing the problems that are presented by the concerns around terrorism, security threats to Canadian society, espionage and organized crime. I do not think it is appropriate to use this lesser immigration procedure to deal with these very serious criminal matters.

I believe these people, if they have committed these crimes, they should be charged criminally, they should be tried in a criminal court and have the usual protections of a criminal court. We have a process in our criminal court that can deal with issues of national security and problems associated with evidence around national security. We should be using that process, not this lesser immigration process, to deal with these very serious matters. Indeed, there are not more serious criminal matters that we could deal with in our society.