Bill C-3 (Historical)

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

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.

Immigration and Refugee Protection Act

[The Acting Speaker, Conservative, Royal Galipeau]

Questions and comments, the hon. member for Marc-Aurèle-Fortin.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, I have a question for the member who just shared his opinion with us. I noticed he made many of the same recommendations that we too intended to make. This is not surprising, either, since these are the same recommendations that have been made by many experts in the field.

I understand, however, that one of the government's concerns is the timeframe within which it must have this bill passed before it lapses. I would like to ask the member who just spoke if he really believes that, although the legislation is not perfect—it would be quite a surprise if it were—there is nevertheless a way, with the cooperation of opposition members, to present much fairer amended legislation within the timeframe required by the Supreme Court?

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Mr. Speaker, these kinds of issues are non-partisan issues. We are all working together to enhance the security and safety of Canadians.

In that spirit, if there are legitimate amendments, they can be made with speed. There are some that can be made without taking away from the strengths of the bill and those amendments would make the bill stronger and better for all concerned. However, we have an obligation to ensure that we do this by February 2008 if at all possible.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, I have noticed in discussions about security certificates that we unfortunately use a misnomer. The majority of individuals who discuss this matter, which is very complex and is covered by various texts that are very poorly written, quickly initiate debates that do not reflect the true nature of a security certificate.

I have to admit that I have not found a better term for them; however, we should understand that security certificates are part of a process whereby two ministers, who deem that a foreign national—but never a Canadian citizen—represents a danger to Canada, ask the Federal Court to issue a removal order. The objective of the process initiated by what are known as security certificates is to obtain a quasi-judicial court authorization to have the individual deported. We must remember that this is a deportation procedure and not a trial.

Canadians' right to live in and to return to Canada is entrenched in the Charter and applies to all Canadian citizens. This process applies only to foreign nationals. Every nation recognizes that it is the right of sovereign countries to admit into their country, at its discretion, the individuals they want and to extradite those they do not want for whatever reason. In general, particularly in a country such as ours that was and continues to be built on immigration, those who are considered dangerous are extradited.

This information is generally obtained from security services that, we must be clear about this, are not police forces. The purpose of security services is to assess threats and to inform the government of these threats so that it may take action. By their very nature, security services begin with suspicions, hypotheses and investigations. They then elaborate scenarios of the most dangerous situations to advise the government of the decisions to be taken. They are not police officers.

When the police investigate a crime, they likely begin with hypotheses and lists of suspects. Sometimes the investigation reveals that some of the suspects did not commit the crime being investigated. Throughout the investigation, they carefully seek new evidence, collect and preserve that evidence, and proceed only once they are sure that the evidence will prove beyond a shadow of a doubt that the person believed to be guilty of a crime, is.

What people have to understand is that in this case, we are not talking about a trial. It is important to note that, as is the case in many countries that are not at all like us, authorities can decide not to ask a judge to review a decision concerning a person deemed dangerous on the basis of information provided to the Minister of Public Safety by security agencies.

In countries that are more like us, including the Commonwealth and western European countries in general, these cases go before a judge. Given that the goal is not to punish but to deport the accused, the burden of proof is not the same.

Many people have suggested that if there is proof that these people are dangerous, they should be convicted.

In some cases, if there is evidence that these people are dangerous and that they have committed a crime, the best solution is to accuse them of those crimes and try them in court. However, we are talking about individuals the government wants to deport, not punish.

The government frequently defends its position by saying that people who are incarcerated here are in a three-walled prison. However, for some people, the fourth wall of their prison is actually a cliff. If removed from that three-walled prison, they may be killed or deported to a country where they will be tortured. That applies to those who have been incarcerated here under security certificates. The others are deported.

There was a case this summer. The Parliamentary Secretary to the Minister of Public Safety mentioned it in his speech. People might remember it. The individual involved had a lot of currency from various countries in his pockets. The security agencies, the ministers and the courts determined that he was dangerous, so he was deported. Those who are kept here are the ones who could be killed or subjected to cruel treatment if sent to another country, so we cannot send them anywhere.

Under these exceptional circumstances—and they remain exceptional—how long will an incarceration last? The government did not want to answer this question. The response given by the court indicated that, under the law, the incarceration or its grounds should be reviewed at least every six months.

Security certificates have rarely been used. However, since 9/11, that fear has emerged among security services. They concluded that some of these people had been sent to the United States and were leading a perfectly normal life, without having to maintain any contact with security organizations and that, one day, they were called and asked to participate in an operation. They were even convinced that many of those who had participated in that operation did not know exactly what they were going to do, but were willing to participate in an illegal or terrorist operation. This is what is known as a sleeper cell. And this fear of sleeper cells means that there is now a greater tendency to use security certificates than in the past.

Thus we are more aware of the limits of the current procedure and the underlying reasons. I must say that, personally, having read the reasons given by the judges, I am convinced that security certificates remain necessary for completely exceptional cases. However, our procedure must be consistent with our principles of law.

Of course, judges had to rule on this on their own. They themselves expressed some concerns regarding the procedure in place, in the absence of advocates. This concern was best expressed by Justice Hugessen. Here is what he had to say, in a speech that has been cited extensively in the case law:

I can tell you because we [the judges of the Federal Court] talked about it, we hate it. We do not like this process of having to sit alone hearing only one party and looking at the materials produced by only one party and having to try to figure out for ourselves what is wrong with the case that is being presented before us and having to try for ourselves to see how the witnesses that appear before us ought to be cross-examined. If there is one thing that I learned in my practice at the Bar... it is that good cross-examination requires really careful preparation and a good knowledge of your case. And by definition judges do not have that... We do not have any knowledge except what is given to us and when it is given to us by only one party we are not well-suited to test the materials that are put before us.

Judges did not like having to make such a decision on their own.

In my opinion, the bill tabled by the government does much to remove the unease of judges, but does not pay the same attention to the pursuit of fairness in this process as did the judges.

For example, there are only a bare minimum of guidelines for the creation of the new position of special advocate and also with regard to the issue of appeals. An appeal will only be allowed if the judge, having heard the government's and the special advocate's representations, upholds the order for removal or incarceration. If the individual cannot be deported, there can only be an appeal on a question of law or general interest raised by the judge.

It is definitely not very reassuring for the person involved to know that the individual who confirms his deportation is also the one who prepares the notice of appeal. I do not understand why the government went so far. A similar burden does not exist anywhere else in our laws. Even when the Crown can appeal only on a question of law, it is still the crown attorneys who prepare the notice of appeal.

In my opinion, the government should have taken the opportunity to carry out an in-depth review of the security certificate process. It should also have taken into account the experiences of special advocates in other countries such as Australia, New Zealand and England. It should also have considered our own experience with special advocates, those who represent certain individuals who file complaints against the activities of our Canadian security services.

The member who spoke before me rightly pointed out that these advocates can remain in contact with the individual who files a complaint, who complains about the security services. They are given secret information and there has never been a complaint that these advocates have communicated these secrets to the plaintiff.

In the French text of the bill, “special advocate” has been translated as “défenseur” or defender. That is an absolutely inappropriate title. The special advocate is not a defender. It is also important to realize that he is not required to maintain the solicitor-client privilege. I do not understand why that is not the case. That means that the individual involved may wonder whether admissions he makes to the advocate, who meets with him to explain his case, may be used against him.

I see no point in eliminating the requirement that the special advocate must keep secret any information shared in confidence by the individual in question. It is difficult to say what the defence will be, because he is not there to defend. He is there to give another point of view.

I also think we should have answered the question left hanging by the court: how long will we hold these people without any proof that they committed a crime? There is no evidence that they conspired to commit a crime. In fact, if they had conspired to commit a crime, the solution would be to charge them and bring them before the courts. All we have are reasons to believe they were here to commit a terrorist act at some point.

For how long? The six months will become another six months, and another. Are we looking at 10 years, 20 years? Some individuals have already been held as long as eight years.

I have a feeling that with the bill before us, the government is looking to do the minimum of what the court is asking. In so doing, it has taken a huge risk. I am absolutely sure that sooner or later the issue will once again end up before the Supreme Court. Furthermore, the Supreme Court may well feel that the measures taken are insufficient and that some aspects are still unconstitutional. Even if that is not the case, we should remember that the Charter of Rights and Freedoms is a charter of fundamental rights. In a country like ours, we surely want our citizens to have more than fundamental rights. For example, with respect to procedural fairness, in a hearing with the potential for incarceration, indefinite incarceration is one of the worst sentences. Even worse is the sentence for murder.

So, we could make a series of amendments without the risk of revealing any secrets of security agencies that should not be revealed. As well, the law does not achieve its goal of deporting from Canada foreign nationals who truly are security risks.

We therefore intend to support the bill in principle.

The government is right when it says that we have to respond to the Charkaoui case. We must respond to the Supreme Court order to improve the process, but we should take the opportunity to make sure this bill does not need to be amended in four or five years. The government should be humble enough to recognize that its proposal is not perfect and that, in a democracy, parliamentary debate is essential to achieve a balance. What we are looking for is a balance between the need for security and respect for the values of procedural fairness.

We are therefore going to propose several amendments. The speaker who preceded me represents a party that used to be in power and used these security certificates. This member suggested several amendments. The fact that this party used these certificates in the past shows that these improvements do not pose a threat to security.

All evidence obtained through torture should clearly be eliminated, and the bill should stipulate that a special advocate's relationship with the person is protected by solicitor-client privilege. The person should be able to choose an advocate with a security status from the Department of Justice list.

The French term “défenseur” should be corrected, because it is not only inappropriate, but misleading. As well, the decision is so important—individuals who cannot be deported to a country where they do not risk the death penalty or torture will be incarcerated indefinitely—that the burden of proof must also be important. The judge must be convinced beyond a reasonable doubt. Special advocates should have the necessary resources to carry out their duties. As well, they should be entitled to all the information concerning the individual, not just some of the information.

The right of appeal should also be extended.

We could improve this bill and pass it quickly, which is what the government wants.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Mr. Speaker, I come from the home of the BlackBerry. If you think of the BlackBerry, it will remind you of my riding of Kitchener—Waterloo.

Let me thank the hon. member for his input and read for him a quote by the deputy leader of the Liberal Party. In The Lesser Evil: Political Ethics in an Age of Terror, he states:

Openness in any process where human liberty is at stake is simply definitional of what a democracy is. The problem is not defining where the redline lies, but enforcing it. A democracy in which most people don't vote, in which many judges accord undue deference to executive decisions, and in which government refuses open adversarial review of its measures is not likely to keep the right balance between security and liberty. A war on terror is not just a challenge to democracy; it is an interrogation of the vitality of its capacity for adversarial review.

I have spent quite a bit of time thinking about this issue. There is something fundamentally flawed in the approach we have undertaken. The security certificate, as we know, predates the Charter of Rights and Freedoms. It predates the Anti-terrorism Act. Actually, it has been in place in this form for 30 years under the Immigration and Refugee Protection Act.

Of course, we are debating changes to this process in this chamber, yet the Anti-terrorism Act is now being debated in the Senate, which is dealing with parts of the act. It seems to me that when we talk about these two pieces of legislation they are not divorced from each other. We really have to consider the implications of both.

There is a question that I think we as parliamentarians should answer. Let us look at the empirical evidence of what has happened in terms of actions that have been taken since 9/11, the fateful day that caused us to rush into anti-terrorism legislation. Of course, this is part and companion of that, of what already existed. We really have to look at whether we have enhanced the security of Canadians. And have we enhanced the security of the rest of the people on this planet or have we made it worse?

I put that to members because we have a long history of, in times of crisis when we need the Charter of Rights and Freedoms, taking away these rights. My question--

[The Deputy Speaker, NDP, Bill Blaikie]

Order, please. I am sorry, but the member has had three and a half minutes to ask his question. The hon. member for Marc-Aurèle-Fortin.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, I was listening to the explanation the hon. member was giving to justify his question. Essentially, he is asking whether we have indeed enhanced security with the measures we have taken. Personally, I do not think so. I know that those who do think so could never prove it because we have continued to live in security.

But just look at the mistakes that were made in the Arar case. I am trying to follow from a distance the case in Toronto of the only conspiracy for which the perpetrators have been tried under the Anti-terrorist Act. It seems that the accused are being released one after the other. I do not know when we will see the end of this case. Accordingly, I do not think the measures we have taken are enhancing security.

In any event, I think the fight against terrorism is accomplished through the work of security agencies, by the systematic gathering and interpretation of bits of information that make up a whole. That is why I quite like the expression “intelligence agency” because the idea is to understand the relationship between the components through intelligence. It is through this work, and not through legislation, that we are enhancing our security. Terrorism has always been illegal. I do not know of an act of terrorism that can be considered legal and I do not think anti-terrorism legislation has contributed much. The same is true for the few times security certificates have been used.

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, I was recently appointed the NDP critic for public safety and I am glad that Bill C-3 is the first legislation I will be speaking to in that capacity.

Ensuring public safety is essentially about protecting Canadians' quality of life, something that we all support regardless of political party. New Democrats believe that quality of life is about a balance between being free and being secure. With Bill C-3, the Conservatives have once again failed to find the balance in the process.

This legislation does not make Canadians any more secure, as I think the member across the way just stated, but it does undermine our fundamental freedoms. That is why the NDP opposes Bill C-3 and why we hope the other opposition parties in the House will do the same.

We have two major problems with security certificates. First, security certificates are simply the wrong way to fight suspected terrorists, because they do not actually punish people who are plotting terrorist acts. Under security certificates, suspected terrorists are detained and deported back to their country of origin. Do the Conservatives or does anyone really believe that makes Canadians safer?

We in the NDP believe terrorism is a serious crime. It is not a legal activity but a crime, and there should be serious consequences. If a person in Canada is plotting terrorist actions, he or she should be arrested, charged for the crimes, convicted, and put in jail. That will make Canada a safer place.

When the Parliamentary Secretary to the Minister of Public Safety spoke to this legislation, he called security certificates an important public safety tool, but how are Canadians any safer when suspected terrorists are simply forced to leave the country but then continue their activities or their suspected activities?

The parliamentary secretary also said in his speech that the government wants what Canadians want: to protect the safety of the Canadian public. I think the parliamentary secretary and the Conservative government are just a bit out of touch. The NDP wants what Canadians want. We want to see terrorists arrested and put in jail. That is how the safety of the Canadian public would be protected.

The Conservatives' out of sight, out of mind approach to national security is just not good enough. The government uses tough language when it talks about protecting public safety, but if we listen closely to what the Conservatives are saying, we will realize that it is all about sounding good for the television cameras while trying to convince Canadians to give them the majority they are so desperately seeking.

Our national security is not a prop to be used in a show of political theatre. The NDP believes the Conservatives should walk their talk, do the right thing, abandon this flawed security certificate process and use the laws of our country to punish terrorists.

Terrorism is a crime. Terrorists are criminals and they should be vigorously pursued under the Criminal Code of Canada, not the Immigration and Refugee Protection Act. I find it deeply disturbing that deporting terrorists is the best solution the government can imagine for keeping our country safe.

As I said earlier, the NDP has two major problems with Bill C-3. Our second issue with security certificates is that they seriously undermine core values of our justice system. Remember that public safety is about finding that balance between freedom and security, and this new legislation is just as imbalanced as the process that existed before the Supreme Court ruling.

With Bill C-3, the Conservatives are trying to implement a security certificate process that will not violate the charter, but there are many experts who believe this new proposal will be struck down by another Supreme Court challenge.

Security certificates undermine our justice system by circumventing due process that is a fundamental right in any democracy. The Conservatives have tinkered with a fundamentally flawed piece of Liberal legislation, but their tinkering is not enough to fix the problem. Because there are serious consequences facing those named and security certificates, strong procedural safeguards are required. This legislation does not go far enough in protecting civil liberties.

There are serious consequences to being named in a security certificate. These include loss of liberty, a deportation order and the possible removal to torture. One well recognized aspect of fundamental justice is the right of full answer and defence, the right to know the allegations against a person, and the opportunity to respond to those allegations. That right does not exist in the security certificate process.

Also, critical evidence may be presented to the presiding judge in the absence of detainees and their lawyer, and that is just not right. Even though this evidence is not disclosed to detainees or their counsel, the judge can consider the evidence in determining if the certificate is reasonable. Detainees may never know the reasons why they are being deported from Canada, let alone have a meaningful opportunity to challenge those reasons.

The Conservatives will try to say that they have improved on the mess the Liberals made of security certificates by introducing a special advocate into the process, but we already know that special advocates do not fix the fundamental problems with security certificates.

Special advocates are used in New Zealand and the United Kingdom, and the process in both of those places is seriously flawed. The United Kingdom is often cited by those who support modifying rather than abolishing the security certificate system, but these proceedings, where security-sensitive evidence is not disclosed, and a special advocate who has the right to attend and participate in in camera sessions, have been subject to several court cases that have ruled against the arbitrarily imposed limits.

Given that the U.K. lords of appeal ruled against provisions of the process on October 31 of this year, it is obvious that the system is flawed. That is the very reason that Ian Macdonald, a special advocate with over seven years experience in the U.K. system, quit over the failure of the British government to address these exact problems within the British system. The Conservatives know this. In fact, Mr. Macdonald even testified before the public safety committee to share his criticism of the special advocate process.

An excellent critique of Bill C-3 has been prepared by Craig Forcese and Lorne Waldman. I would like to recognize them for their excellent work opposing this flawed system. In their analysis, which I would be happy to forward to the Minister of Public Safety although I expect he may have had it and simply not acted on it, Forcese and Waldman conclude that special advocates suffer from a number of shortcomings.

Interestingly enough, some of these shortcomings have been mentioned in the House by the Liberal opposition party which I understand is going to support the bill with all of these shortcomings that were listed earlier by the Liberal justice public safety critic.

They criticized Bill C-3 for not allowing full disclosure, and for not allowing persons detained and their lawyers to know all the relevant information being used against them. They say the Conservatives are wrong in not allowing special advocates to be in contact with the detainee throughout the process. They condemn the government for not taking a strong stand against using information for security certificates that was obtained by torture.

The NDP strongly believes that a system that denies the right of full answer and defence cannot be corrected through mere procedural adjustments.

As I said at the beginning of my statement the NDP strongly opposes security certificates. We had hoped the other opposition parties in the House would do the same, but I was very disappointed to hear the Liberals say that they “won't stand in the way” of this legislation. That is hardly a ringing support.

I was also shocked to hear this, given the Liberal caucus has been divided on these issues in the past. It demonstrates once again where we are at in this Parliament.

We have a Conservative minority staging political theatre as best it can in a frantic quest for a majority and we have a Liberal opposition that is so afraid of its own shadow it will do anything to avoid an election. The Liberals abstain from votes or simply do not even show up and now they will even vote to support legislation that many of them fundamentally disagree with and have presented a long list of flaws with this legislation.

It seems the Liberals were in government so long they have forgotten how to do the job of an opposition. Perhaps they should look to the NDP for leadership, a party that is not afraid to oppose the Conservatives when they are taking Canada down the wrong road.

Let me wrap up my comments now by summarizing why the NDP is taking a stand in the House against Bill C-3. We are voting against this legislation because the Criminal Code already has all the tools we need to protect our national security while honouring our Charter of Rights and Freedoms.

If the Conservatives were serious about protecting public safety, they would punish people who are suspected and convicted of terrorist acts, not simply deport them.

The NDP is also opposing Bill C-3 because it undermines fundamental Canadian values. Inserting special advocates into the security certificate process does not adequately address concerns around the right to due process.

However, even if all civil liberties were somehow protected in this legislation, security certificates under the Immigration and Refugee Protection Act, which was stated a few moments ago have been around for a very long time, would still not be the right way to deal with threats to national security.

Unfortunately, because the Liberals have chosen to support the Conservatives on Bill C-3, it will likely pass and come to the public safety committee for examination. If that happens, the NDP will do everything in its power to ensure this fundamentally wrong legislation does as little harm as possible. But let us be clear with one another in this House and with Canadians who are watching today, Bill C-3 is the wrong way to go.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Mr. Speaker, to my colleague across the way, I very much agree with her in terms of the security certificate process and how people under the present system can be jailed indefinitely. Of course, as soon as they agree to be returned to the country the government wants to send them to, they are allowed to go free. It does not strike me as a way of enhancing security because if people are a danger and a threat, they can return to Canada or they can cause those kinds of activities elsewhere.

I wonder if the member could make a comment specifically looking at another aspect which is very troubling, the number of wrongful convictions we have had in this country in a process which respects the charter, in a process which goes through the rigours of criminal law, where it is done in open court, and it is done under finding of beyond a reasonable doubt in terms of guilt.

There are many names, but some of the obvious cases which we know about involved Donald Marshall, Guy Paul Morin, Stephen Truscott, and of course we all know about the Coffin case. We also know about some of the other cases coming forward now as a result of a pathologist giving wrong information and too much reliance on that wrong information.

My question for the member is, if we use the most rigorous system we have and we get all these wrongful convictions, what are the probabilities of wrongful convictions when we use a system with very low standards, closed trials, information not known, and people unable to defend themselves?

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, this is a very key question. In circumstances where ostensibly defence lawyers have had made available to them all of the evidence that is seemingly available to them to put forward a case on behalf of their client, we still see mistakes and the member has named a number of them.

How many more people would be convicted even in the cases that the member speaks of which are not about suspected terrorists other than perhaps one? If any lawyers had to go to court knowing that they were only given certain pieces of information judged by someone else to be relevant to their client, I expect many lawyers would fail to take the case because they could not mount a full defence.

Therefore, this simply increases the risk that more errors will be made because full information is not provided to lawyers and to have a bridge of a special advocate who then cannot talk to the individuals or their lawyer about what they have seen is very troublesome and will increase the risk of errors being made.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, I have three quick questions for the member.

It seems that we agree in many respects, but that we have come to two significantly different conclusions about second reading. I believe the member understands that the fundamental difference between our position and hers is the issue of sleeper cells.

Does she believe that there are terrorist organizations in the world today that are training people and sending them to democratic countries with orders to lie low and lead an exemplary life until the day they are told to commit a terrorist act with other people? They have not yet done anything illegal, but one day, they will.

Does she believe that intelligence services can identify such individuals—by planting agents in training camps, for example? The agents' names cannot be revealed, of course, because to do so would put them in grave danger. We have to hear their side of the story.

That is one of the things that convinced me. Such situations have convinced me that security certificates are necessary. I was trained as a lawyer, and I spent most of my career as a defence attorney, so even though I do not like the process, I believe there is a need for it. It must be used sparingly, however.

Even though the member is against it, is she willing to work together to improve the security certificate process and make it as fair as possible, just as Messrs. Waldman and Forcese, whom she quoted, are doing?

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, are there cells throughout the country? I do not know, but I believe there to be.

I think the member said earlier that he liked the English words of gathering intelligence. The process of gathering intelligence alerts our security to the fact that those people may exist. However, if people are in Canada living an exemplary life and breaking no laws, perhaps they have changed their minds or disavowed themselves from their original training. I do not know.

However, to walk into someone's home, someone who lives here, who has committed no crime and lives an exemplary life, seems to be an extreme violation under our Charter of Rights and Freedoms. Should those people commit an illegal act or be proven to be planning something, let us arrest them. Let us charge them for criminal activity.

Because the security certificates have had pieces added to them to try to make a flawed system better is not enough to convince me to support the bill at this time.

[Denise Savoie, NDP, Victoria, BC]

Mr. Speaker, my colleague has eloquently outlined why the NDP will oppose this flawed bill. As she said, the security certificate process undermines fundamental Canadian values because of processes like detention without charge and the inability of accused persons to know or examine the charges against them.

She has also said that there is nothing in the bill that the criminal process could not deal with. In The Shock Doctrine: The Rise of Disaster Capitalism, Naomi Klein, a Canadian writer, has proposed some reasons why neo-liberal governments, like the present government, offer these kinds of extreme solutions to address perhaps a real problem, in that they move us away from basic democratic principles.

Could she offer her comments on that and on what other reasons the Conservative government might propose this solution instead of using the Criminal Code as it is available to us now?

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, I think this is the easiest way to try to fix the order from the Supreme Court, that came down that this did not meet the charter. I do not think this will withstand a charter challenge either. I am sure there will be a challenge should this pass and it will be not upheld as legislation that protects people.

There are other examples, and the Liberal critic spoke to them earlier, of the SIRC process where full information is available to council. There is no example, ever, of there having been an error made by a lawyer who disclosed too much. A skilled lawyer knows how to put those questions. Therefore, I think it is the easiest way to do it.

Perhaps if the House had not prorogued for so long, we might have had an opportunity to have a more thorough look at whether there was a better way to do this. Unfortunately, we were denied that opportunity by a government that did not wish to return to the House for this debate.

[Ed Komarnicki, Conservative, Parliamentary Secretary to the Minister of Citizenship and Immigration]

Mr. Speaker, I am pleased today to lend my voice to this important debate. Bill C-3 has wide-ranging implications for both our immigration and refugee protection system and ability to protect our national security.

Once again Canada is taking a lead in this area. As my hon. colleagues have already mentioned, the reason for the bill is quite straightforward. The government has the fundamental responsibility to defend Canadian public safety and national security. This is first and foremost. We know we must have the tools needed to protect Canadians. Our safety and security are paramount.

At the same time, we recognize that these tools must protect the Canadian core values of freedom, democracy, human rights and the rule of law. Therefore, artful balance must be struck and I believe the bill strikes that balance.

Protecting national security means securing our quality of life. As well, securing our quality of life also means respecting the rights of all people in Canada. Indeed, as a delicate balance, we must protect our national security and individual safety with such minimal interference with personal freedom and rights as is reasonably possible under the circumstances.

Advancing security and civil liberties together with the other is a crucial element to building a strong and open society in Canada. That is why we have introduced Bill C-3.

The Supreme Court of Canada in its ruling recognized the government's responsibility for protecting Canadians from terrorists and other non-citizens who posed serious threats and the use of security certificates as a means of achieving this objective. As well, it ruled that changes were needed to the security certificate process to better protect the rights of individuals subject to these certificates.

While the Supreme Court provided the government with a great deal of insight into this matter and laid out possible options for action, the government was also privileged to be able to rely on the work of the parliamentary committees who studied this issue.

At this time I will address the recommendation made by the Standing Committee on Citizenship and Immigration during its study of detention centres and security certificates. I personally had the opportunity to visit the detention centre in Kingston. I spoke to and listened to the detainees and the concerns they had.

In the recommendation by the Standing Committee on Citizenship and Immigration, the committee recommended that the government comply with the Supreme Court of Canada ruling in Charkaoui v. Canada and amend the act to provide for the appointment of a special advocate in proceedings in Federal Court to determine the reasonableness of a security certificate. That is exactly what the bill purports to do.

The second recommendation was that a special advocate should be a lawyer with appropriate security clearance who would be appointed to represent the interests of the individual subject to the certificate and to test the confidential or secret evidence presented by the government, and the bill provides for that.

Finally, it said that the special advocate process put into place should, subject to national security considerations and with minimal impairment to the rights of the detainees, afford detainees an opportunity to meet the case against them by being informed of that case and being allowed to question or counter it. Again, the bill purports to do that.

The committee also recommended that the government institute a policy stating that charges under the Criminal Code would be the preferred method of dealing with permanent residents or foreign nationals who were suspected of participating and contributing to or facilitating terrorist activities. However, there is a difference between a criminal act and the intention necessary to make that act criminal and someone who is not yet in that stage who will be a potential danger to the safety or the national security or to individuals. Therefore, the two acts need to be dealt independently of each other.

I will try to address this in some detail and explain why the security certificate process is vital for the safety of all Canadians.

First, the security certificate process is necessary to protect Canadians from individuals who are inadmissible to Canada. Let me give a brief description of the security certificate process. The process has existed for more than 20 years in the Immigration and Refugee Protection Act and in other acts.

Since 1991 and contrary to what some members of the House may try to indicate, only 28 certificates have been used. Of those, there are currently six active cases. Nineteen individuals have been deported from Canada and three certificates were found not to be reasonable by the federal court. These statistics show that the process has been used relatively and frequently and only on a when needed as needed basis.

When we consider that Canada admits roughly 95 million people a year into the country, including 260,000 immigrants, it is plain to see that this process is very seldom used, and only in exceptional circumstances and in the rarest of cases.

A security certificate can only be issued against a foreign national or a permanent resident who is inadmissible to Canada on grounds of security, violating human or international rights, serious criminality or organized criminality. We are not talking about a Sunday school variety of misdemeanours. We are talking about serious matters, violating human or international rights, serious criminality or organized criminality. This is the group and category of persons we are talking about.

These certificates are only used when the information used to determine the person's admissibility to Canada is classified and needs to be protected for reasons of national security or the safety of any person. At some point, national security and the safety of the person must trump individual rights, but in such a manner that least interferes with this. That is the idea behind the bill.

Individuals who are inadmissible to Canada for other reasons are subject to removal order, but in most of these cases it has not been necessary to use confidential information. To protect that information from public disclosure in order to protect the safety and security of Canadians, these individuals are not subject to the security certificate process as their cases do not involve sensitive security information. Therefore, in the majority, and by and large in many of the cases, a full disclosure is made and this issue does not even arise.

As a first step in the security certificate process, the Minister of Public Safety and the Minister of Citizenship and Immigration review the case based on information presented to them, including the classified intelligence information. Both ministers must sign the certificate for it to proceed. It is not done without regard to what is before them. It takes two ministers, and following that, the certificate is referred to a designated judge of the federal court to conduct a hearing to determine whether the certificate is reasonable. This, in and of itself, provides a measure of protection to the individual, but other safeguards are put in place as well.

During these court proceedings the federal government may present classified information for the judge's consideration. This information is not disclosed to the individuals concerned or their counsel. However, an unclassified summary is given to the subject by the court in order to allow the individuals to be reasonably informed of the circumstances giving rise to the certificate. This contains a fairly detailed explanation of the case an individual must meet or answer to. If the judge determines the step is reasonable, it becomes a removal order.

During the reasonableness hearing or after the certificate is found to be reasonable, the federal court generally undertakes a risk and danger assessment to determine if the person can be removed from Canada. This is to verify whether the person would likely face torture or other cruel or unusual treatment if returned to the country of origin. This type of determination is also subject to review by the federal court, and Canada has never knowingly removed individuals who face a substantial risk of torture.

As hon. members can see, many people review the case and great care is taken in reaching a decision to invoke the security certificate process or not, and to ensure its integrity.

In its February ruling in the Charkaoui case, the Supreme Court of Canada stated some aspects of the security certificate process had to be strengthened to provide those subject to security certificates a greater opportunity to challenge the government's case.

Today I will explain for hon. members the reason for this process provided for in the Immigration Refugee Protection Act when it is invoked and why it is invoked rather than the provisions of the Criminal Code when dealing with specific cases. It is my hope this will help hon. members understand the crucial need for this legislation and the importance of voting in favour of Bill C-3.

The security certificate process does not have the same objectives as the criminal prosecution.

Let me state at the outset that under no circumstances should immigration proceedings and criminal justice proceedings be seen as an alternative to each other. Each exists for a specific purpose and its procedures have evolved over time as appropriate to that case.

Criminal proceedings seek to convict, and if a conviction is obtained, should apply a punitive sentence as decided by the court. That is when a crime is alleged to have been committed or when a series of actions or intentions breaches an existing law in Canada. In some cases, individuals may not have progressed to that stage, nonetheless they are a threat to our national security or the safety of a person.

While the security certificate process is meant to remove inadmissible individuals from Canada, it has no punitive design. Decisions on whether to prosecute a case criminally or to seek removal from Canada should be made on a case by case basis. There should never be a presumption as to which avenue should be pursued.

Every decision must be taken after independent evaluation of the facts, the circumstances and the context. As I have already said, the basis for proceeding with the security certificate process under the Immigration and Refugee Protection Act is whether the person is admissible to Canada and therefore subject to further removal. In this case, it must involve sensitive information that cannot be disclosed for national security reasons or to protect the safety of other persons.

Again let me stress that these cases refer to individuals who are somehow involved with terrorism, organized or serious criminality, or violating human or international rights. This process is not invoked for just anyone who is found to be inadmissible to Canada.

On the other hand, the only basis in which criminal proceedings are conducted is when, following an independent investigation by the police, a review of the evidence shows that there is a reasonable prospect of conviction and that to the prosecution, it is in the public interest to proceed with the charge. The decision to prosecute or not is within the independent jurisdiction of that prosecutor and the issues involved in the concern are different in both cases.

Another difference between the two lies in the rights and safeguards that apply to each. The government believes it would not be appropriate to select one type of proceeding over the other in order to ensure whether the particular charter provisions or other safeguards will or will not apply.

Certain rights, such as the right to be presumed innocent or to trial by jury, for example, are appropriate only in criminal proceedings, while others, such as a fair hearing, have a more general application. Any question of which rights or safeguards should apply should be based on the nature of the proceeding at hand. The government believes the nature of the proceedings must ultimately be governed by the facts and context of each case.

With respect to the security certificate process itself, we have an impartial judge who hears the case and there is provision for adversarial process. This last point is enhanced by introducing the special advocate in the proceedings as is proposed in the bill.

As the hon. members can see, each system serves a distinct fundamental purpose. The government believes the two should not be confused or seen as interchangeable and it would not be appropriate to select one type of proceeding over the other.

Let me say what the bill does.

It allows a special advocate to protect a person's interest in certain proceedings when the evidence is heard in the absence of the public and of the persons and their counsel. The special advocate may challenge the claim made by the minister of public safety and emergency preparedness as to the confidentiality of the evidence as well as the relevance of the evidence, the reliability of the evidence, the 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 interest.

That is the vast extension of what was in the previous act. It allows to test, to weigh, to cross-examine and to deal with the evidence, as a lawyer would in any normal case. It also allows for a judge to intervene.

Another difference I would like to discuss is the detention aspect of the security certificate process as it is different compared to incarceration in the context of the criminal justice system. Incarceration imposed as a criminal sentence is meant as a punishment and also as a rehabilitative tool. This type of punishment is applied to facts established at the time of conviction and is based on sentencing principles which include, for example, proportionality between the length of imprisonment and the seriousness of the crime.

On the other hand, detention pending removal is based on periodic assessment of risk to the public for national security. This is not a punitive measure and it does not serve a rehabilitative purpose. In other words, the persons are kept in detention just until they leave the country. The objective is removal from Canada. The fact is that individuals subject to security certificates are free to leave Canada at any time and to return to their country of origin.

In its decision in Charkaoui, the Supreme Court reaffirmed the appropriateness of detention under our immigration law including, where necessary, detention for extended periods. More specifically, the court stated that extended periods of incarceration do not infringe on the Charter of Rights and Freedoms, provided that process allows for a regular review and a consideration of factors related to each individual case.

The applicable charter safeguards and requirements for robust and regular reviews of detention have now been clarified by the Supreme Court in its decision and these requirements will be met and they will be met by this bill.

Bill C-3 enshrines that foreign nationals will be granted the same rights to detention review as permanent residents, that is to say, within 48 hours of the initial arrest and at least every six months thereafter. I think Canada leads the way when compared to other countries in this regard. While the security certificate process is seldom used, it is an absolute vital national security tool that we need to have available.

I previously mentioned some statistics that proved just how sparingly this process is evoked in Canada. Of the millions of people who have been admitted to Canada, only a few people have been subject to security certificates.

The infrequent use of this process does not in any way mean that it is not necessary as a tool in our national security efforts. In no way should we be complacent enough to think that we can handle these cases in another way. The Supreme Court confirmed the use of security certificates generally and recognized that one of the most fundamental responsibilities of a government is to ensure the security and protection of its citizens. That is paramount.

In fact, by delaying the coming into force of its ruling by one year, the Supreme Court was giving the federal government and ultimately Parliament an opportunity to amend the law to be able to maintain security certificates as a public safety tool, and so we have done that.

Time is growing short for us to amend the legislation. If Bill C-3 were not passed by Parliament before February 2008, the current legislation would be struck down. Individuals subject to a security certificate would no doubt succeed on application in having their certificates quashed. This means they would no longer be subject to detention or any conditions of release, which would pose serious public safety risks and we would lose security certificates as a tool to help keep us safe and secure.

There is an important need for security certificates and their process. While some hon. members may believe that we are able to effectively deal with these cases through criminal prosecution, that is simply not the case because they are entirely two different and distinct matters.

I hope this explanation today of the role of criminal prosecutions will help guide hon. members in voting in favour of this bill. Security certificates and criminal prosecution do not have the same goals, the same processes or the same outcomes. They cannot be interchanged.

We must continue to have the ability to remove from our country inadmissible persons who pose a grave and severe threat to Canadians. Whether it is a foreign spy, a terrorist, a member of a violent organized crime group or a person who has committed heinous human rights atrocities overseas, these people cannot and they must not be allowed to stay in Canada. It would be like closing the barn gate after the horses have left. We do not do that. We do not leave the gate open. We have to be gatekeepers.

Bill C-3 will allow us to continue to defend our society from such threats and they are significant. I encourage hon. members to show that they are serious about protecting Canadians from any individual posing threats and that they would vote in favour of this bill.

I would reiterate that the bill itself has presented a series of protections that I think provide the safety needed to the individual without comprising national security.

The special advocate's role is to protect the interests of the permanent resident or foreign national in a proceeding. That is what it is: to protect that interest. The special advocate can challenge the claim that there is a need for disclosure and confidentiality. The special advocate can challenge the relevancy, reliability and sufficiency of information or other evidence and the weight it should be given. The special advocate can make oral and written representations. The special advocate can cross-examine witnesses who testify with a judge's discretion and authorization and any other powers that are necessary to protect the interests of the permanent resident or foreign national and that covers a multitude of bases.