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, an excellent resource from 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.

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 4:50 p.m.
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Bloc

Claude Bachand Bloc Saint-Jean, QC

Mr. Speaker, I am pleased to speak today on Bill C-3. This is an interesting bill, because it highlights basic rights and sometimes pits them against each other. Rights come up against security, an increasingly important issue in Canada and elsewhere. When people can be deprived of their freedom and deported, we must always ask ourselves whether we are going too far at times. Of course, we live under the rule of law, in a free and democratic society.

Are these sorts of security certificates compatible with the concepts of a free and democratic society, with the rule of law, with the charters? Are they compatible? Having examined the bill, we support it, provided there is no abuse. We have seen that there has been no abuse to date. Since the terrorist attacks, only five or six certificates have been issued. Since 1991, 27 security certificates have been issued. No can say that Canada is going overboard. No one can say that Canada is issuing security certificates left and right. Deciding to deport someone is a serious matter, and I believe that the investigations that are conducted ensure that we do not make mistakes about these deportations.

We are in favour of security certificates. However, I think the bill can be improved and it is important that it is. In my opinion, it is the role of the opposition to ensure that a bill is perfectly suited to the situation. Not only must there be no mistakes, but these people need help ensuring that their basic rights of freedom and self-defence are defended.

The use of a security certificate is not that complicated and it is a rather quick measure. The Minister of Citizenship and Immigration and the Minister of Public Safety have to sign it. Then the whole matter is sent to the court for evaluation. When the court is considering a security certificate, it can hold in camera hearings because some of the information might compromise the security of Canada or endanger certain individuals.

However, the problem is that the security certificate is often issued in absentia. It is up to the court to decide whether or not the person—whom we could think of as the accused—will be issued a security certificate in absentia. In our opinion, some things need to be changed in order to provide not a full defence, but at least the assurance that there will not be any major assaults on democracy and the right to defend oneself.

There is another problem. Once the Federal Court agrees to issue a security certificate for an individual, there is no appeal process. Not only does the court often rule in the absence of the person concerned, but what is more, there is no appeal process. I will elaborate on this later because this is one area where we have some reservations about the whole issue of security certificates.

Finally, as soon as the Federal Court confirms that the security certificate can be issued, the person is automatically extradited. Again, we must remember that this specifically applies to permanent residents and foreign nationals. Canadian citizens could never be in the same boat because other types of rights apply to Canadian citizens.

There were some exceptions in the various cases heard by the courts, such as the fact that an individual cannot be extradited if it is certain that he will be tortured or that his life will be in danger in the country to which he is being extradited.

I think it is important to highlight the current procedure used with respect to security certificates. I would like to explain some amendments we are proposing.

Earlier, my colleague spoke about special advocates. Great Britain and other places have experience using special advocates. A special advocate is not a defence lawyer; it is someone who will guide the accused through the process and who will show him how to defend himself: are the facts true, is the evidence well-founded?

I think this support is important. It is something that should be in the law. An individual cannot be told that the Minister of Citizenship and Immigration and the Minister of Public Safety have just signed a security certificate concerning him, that it is being sent to the court, where the judge, sometimes without consulting the accused, decides it is over and he is being sent away, without any appeal process. This seems a bit quick and hasty.

We are making suggestions to ensure that there will be no mistakes. Even if we conceded that security certificates were not being abused, the bill should be fine-tuned.

We believe it is important to allow an advocate to defend the rights of an individual who is facing deportation. We also believe it is important to disclose all the evidence to this special advocate. To date, all the government has had to provide is a summary of the evidence, but we would like the full evidence to be disclosed.

We would not have a problem with that. Moreover, in the agencies that control CSIS and the RCMP, lawyers are also bound by solicitor-client privilege. I therefore do not see why we should not allow special advocates bound by solicitor-client privilege to have the full evidence, which would make them better able to defend the accused person facing extradition.

In our opinion, this is something the government should do. I hope that my opposition colleagues will support this approach, so that a full defence is possible.

The right to appeal poses another problem. Something seems to me to be a bit excessive. I am not questioning the Federal Court judge's suitability, integrity, IQ or anything else, but legal errors can occur. No one is infallible. It seems a bit much that one person can make this decision and that the decision cannot be appealed. We are playing with an individual's freedom here. We are sending him back to a country, refusing him access to Canada and telling him that that is the judge's decision and that it is final. It seems to me that we have proof that this does not always work.

With regard to the people who are in charge of immigration, I realized the other day that there is still no process for appealing an immigration judge's decision. There is also no appeal process for people who are told that they can no longer stay in Canada and must leave. And yet, such a process would protect against a potential unfortunate mistake. In the case of people who are to be extradited, it would be one mistake too many. The appeal process is important to us.

There is also another aspect. We would really like to put an end to indefinite detention. This also goes too far. People in such situations feel very insecure. Of course, serious suspicions may have been raised against them, but that does not mean it has to turn into long-term torture, either.

Someone is imprisoned and told that no one knows how long they will be there, and that evidence is being gathered. Delays can go on and on. Thus, we have certain reservations about indefinite detentions. However, no one yet seems to know if a definite period will be determined. In any case, we think the mere idea of indefinite timeframes for someone who is the subject of a security certificate is going too far. We hope our colleagues will follow our lead when we propose amendments to the legislation.

Furthermore, another serious issue for us is arrest without a warrant. I described the current procedure earlier today. Only the Minister of Citizenship and Immigration and the Minister of Public Safety need to sign. Next, it goes directly to court and the arrest is made without a warrant. However, the very important concept of the rule of law is at stake here. Normally, when someone is put in prison, there must be a warrant against that individual. The same thing should go for these people.

Obviously, there is some secrecy surrounding security certificates. Evidence cannot be made public if there are allegations of terrorist plots, for example. However, I think that a judge could examine the case before arresting the individual to ensure that there is sufficient evidence to justify the arrest and issue the warrant. It is not that complicated. If injunctions can be obtained within a few hours, I do not see why that process cannot apply to a case involving a security certificate. That is another thing we will propose.

We also want to change the burden of proof to ensure that the security certificate will remain in place only if the court is certain beyond a shadow of a doubt that the individual is a threat. The current standard is reasonable doubt. We have to go a little farther. Often, person's life is at stake, so it should be beyond a shadow of a doubt, which is more rigorous than deciding on the basis of reasonable doubt. We will probably make amendments at the report stage to that effect.

Having listened carefully to oral question period over the last two weeks, we feel that the bill must definitely make provisions that prohibit the extradition or deportation of individuals when we know that they will be tortured if sent to a country where torture is practised. Individuals could be incarcerated here in Canada. There are many solutions but we can definitely not permit the deportation of individuals if we are certain that they will be tortured or even killed. In some countries, under certain dictatorships, people do not last very long. These dictatorships often do not function according to the rule of law. A few people will decide the future of this individual who arrives at the airport.

Therefore it is important to examine the entire file and to ensure that no mistakes are made that could lead to the death or torture of individuals. I hope that my colleagues will acknowledge the Bloc Québécois for their contribution to this matter. Our colleague responsible for this file is a well-known lawyer. He has thought much about these matters. He is an excellent colleague who was formerly a minister of justice in Quebec. I always take what he has to say very seriously. Just now, he was explaining all of this in detail. He wanted me to speak and convinced me.

I will go back to my initial comments. We live in a free and democratic society. We live under the rule of law and we have charters. When we bend these rules, no matter how, we must be careful. Therefore, we are being reasonable and, above all, responsible. We are able to live in a free and democratic society under the rule of law.

We must ensure that when the House is considering bills, that they are not altered too much and that they do not become flawed.

Thank you for your attention. I will take questions.

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 5:05 p.m.
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NDP

Pat Martin NDP Winnipeg Centre, MB

Mr. Speaker, in listening to my colleague from the Bloc Québécois, it would appear that the NDP is the only party in the House that is opposing Bill C-3 at this stage. The others seem willing at least to allow it to go to committee to chip away at anything they disagree with. I would like my colleague to share some of his rationale with us.

I am still struck by the controversial parts of Bill C-3 where, even after the old process was struck down by the courts, the current security certificate process as contemplated by Bill C-3 would still include secret hearings, unlimited detention without charge or conviction, detention without knowing the evidence against oneself, which offends natural justice in just about every developed nation that I know, and the lack of an appeal process.

Those are pretty compelling reasons to oppose the bill, I would think. My colleague from the Bloc, who is a reasonable and rational man and whose opinion I have come to respect over the years, does not seem troubled enough by those problems with the bill to vote against the bill. I would ask him to explain by what reasoning he could toss reason out the window and support Bill C-3.

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 5:05 p.m.
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Bloc

Claude Bachand Bloc Saint-Jean, QC

Mr. Speaker, basically, the logic is simple. Earlier, I said that we can accept security certificates. It is a fact that sleeper cells are stationed in many countries waiting to commit terrorist attacks. We have to act on that at some point.

My colleague raised the same point I did, but the NDP's tactics are a little different. We accept the idea of security certificates, but we want to amend the bill itself. We want the opportunity to make those amendments in the standing committee. All of the points he raised will be discussed in the standing committee, so that we can produce a law that will both ensure public safety and protect the accused.

We are not happy about the absence of an appeal process, the fact that hearings can be held without the accused, and the fact that there are no special advocates to represent the accused. The member emphasized all of these things that we do not agree with.

Nevertheless, we want to pass this bill at second reading because we support it in principle. Then we want to take the time to thoroughly examine the controversial elements and make amendments to improve the bill. That will probably happen in the Standing Committee on Justice and Human Rights, in the Standing Committee on Public Safety and National Security, or in the Standing Committee on Citizenship and Immigration.

As such, the Bloc's position is a responsible one.

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 5:05 p.m.
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Liberal

Lui Temelkovski Liberal Oak Ridges—Markham, ON

Mr. Speaker, I heard the member for Saint-Jean speak to Bill C-3 and I also heard the question posed by the member from the NDP.

I am led to believe that the NDP believes that amendments cannot be made at a committee meeting. I am very surprised because I know the member has participated in making amendments to bills at other committees. I am sure that he understands the process, that we are able to make amendments. The help of the opposition parties is needed in order to send this bill to committee so we can debate and fix the bill. We all agree that this bill is flawed and it needs a lot of help, especially the help of the NDP.

The member for Saint-Jean mentioned in his speech that he would not like to have people deported to some countries. Maybe I could jog his memory about the safe third country provision. If there is a difficulty in their country of origin, the country from where they came, we will send them to a country that is safe and that is not their country of origin. However, I also share the belief that people should not be deported to a country where they would be prosecuted, imprisoned or lose their life.

Perhaps the member could expand on this as well as the idea of amending the bill at committee stage.

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 5:10 p.m.
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Bloc

Claude Bachand Bloc Saint-Jean, QC

Mr. Speaker, if it were up to me, I would allow my colleague from the NDP to respond, but I will instead.

I understand nonetheless that at a certain point, a political party can adopt positions that are inconsistent with or different than ours. This is a parliamentary democracy. If the NDP has such a big problem with this, then they are entitled to vote against the bill. However, we have taken a different approach and the hon. member is absolutely right.

In standing committee, at report stage, we often make amendments. If they are adopted in committee, they are sent for subsequent reading in the House. That is how the bill progresses and in my opinion, this is a good system.

As far as extraditions are concerned, or deportations to countries that practice torture, we have a typical and troubling example in Mr. Arar's case. Obviously if we are holding a Syrian foreign national in Canada and we decide they have to have a security certificate, I would have a problem deporting that person to Syria. I would have a big problem with that. Could we deport that person to a friendlier country? I am not sure whether that would get rid of the problem, or how a country could say it will welcome him.

I believe that the solution is to have prison terms served here, in Canada. However, we must ensure, before deporting an individual, that they will not be a victim of torture or run the risk of dying in the country to which they are being deported. Serving prison terms in Canada seems to be a solution that could be envisaged.

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 5:10 p.m.
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NDP

Wayne Marston NDP Hamilton East—Stoney Creek, ON

Mr. Speaker, I welcome the opportunity to speak to this important bill. As I was preparing for this a short time ago in my office, I was giving thought to the fact that when Canadians send us here and we gather in the House, one of the most fundamental things Canadians expect of us is for us to protect their freedoms, to ensure their lives are lived out in safety and dignity.

We can understand to some extent, following 9/11 the reactions that came out of our neighbour to the south. It was certainly a significant attack with horrendous outcomes. The reaction in the early days was something perhaps today in hindsight might not have moved as far. I suspect that even in this place some members would be concerned about the movements that took place here.

Today in the House, during question period, we heard the Minister of Justice talk about the fact that he would not apply for clemency in the case of a Canadian on death row in the U.S. Even though we had a debate previously in the House on the issue, we decided that it was not the place of government to be a party to the killing of a citizen.

When we look back a little and think in terms of the life of the minority government, we see times and places where it has adopted positions or has refused to follow the will of the House, and I am very concerned about that. We can see an almost Hollywood western “hang 'em high” attitude.

I stress the fact that we do have a minority government and the place for action is in the House, but with the votes of every member in the House. When we look at Bill C-3, from the perspective of the NDP, the bill has major flaws in the sense that it is an attempt to tinker with the problem when the certificates were overruled by the Supreme Court. We do not believe the government has gone anywhere near what needs to be done to address the concern of the Supreme Court.

Many Canadians are concerned about the erosion of rights in Canada, as I alluded to before, in a fashion similar to the erosion of rights that has taken place in the United States. They see Bill C-3 as undermining the balance between being free and being secure.

Security certificates fail in two significant ways in our opinion. First, they allow for detention and deportation of those suspected of terrorist activity, but fail to ensure suspected terrorists are prosecuted and if found guilty jailed for their crimes. We have a Criminal Code that will take care of such matters.

As a result though, if we assume here is some form of terrorist activity in Canada, then to remove suspects, without due process in our courts, means simply we have no guarantee that the suspected terrorist removed from Canada under a security certificate will cease to be a threat.

There also is a fundamental inequity in the law when we consider that security certificates can only be used to detain and deport permanent residents and foreign nationals, but if Canadians are accused of terrorism, they will be arrested, charged and punished under the Criminal Code of Canada.

Part of the Criminal Code of Canada, the due process, is intended to protect the rights and security of Canadians. Part of that is the ability for Canadians to look the person in the eye, their accuser, to see the evidence against that person. To be quite clear, security certificates certainly lack the depth of due process that resides in the Criminal Code.

Security certificates also fail to provide justice and the opportunity to scrutinize the suspected behaviour, to determine at what risk are Canadians? What is the real risk? It has to be substantiated, proven and laid out in a court of law to ensure that the rights of people are protected.

We believe the Criminal Code is the right vehicle for the protection of our national security, while ensuring our rights are also protected at the same time. With Bill C-3, the government is leaving us with the impression that it is throwing band-aid onto the problem simply to address the Supreme Court ruling, to which I referred earlier. We have confirmation from experts that the new proposal will also be struck down yet again by another Supreme Court challenge.

The tinkering by the government is not enough to save this legislation. We also believe, in fairness, that committee work cannot do it either because it is fundamentally flawed.

There is terrible potential in any legislation that impedes or opens the door to the violation of the rights people, which include loss of liberty, then a deportation order and the very serious possibility of being removed to torture. In the very name of human rights, such legislation like this should not move forward.

Imagine for a moment a person is detained and deported from Canada and that person may never ever know the reason why. Equally horrific is the fact the failure to have due process for those reasons will never be aired to the public. Canadians will never know if they were at risk or if the risk was real. Also, in the sense of pure justice, there is no opportunity for anyone to refute the charges against them.

In the name of fear we are prepared to sacrifice due process and the fundamental right of democracy for people to face their accusers and to examine and defend against the evidence against them. This is worse than a kangaroo court. At least a kangaroo court has the facade of due process. Bill C-3 has none of that.

The legislation tabled a special advocate as part of the security process. Special advocates are used in the United Kingdom and in New Zealand, but the process does not fix what is wrong with security certificates in either of those places. Hearings are still conducted in secret. Sources of information are still kept confidential. It is no surprise that a special advocate in the UK, with seven years' experience, recently resigned in protest.

The Criminal Code already has the tools that we need to protect our national security, while honouring the Charter of Rights and Freedoms.

We also believe that foreign nationals and permanent residents should face the same processes and the same punishments as Canadians.

We have two problems with security certificates. First, they violate the Charter of Rights and undermine our justice system. Second, they are not the right tool for protecting national security. Even if security certificates were found to be constitutional, they still would not be the right strategy for fighting terrorism. The Criminal Code is for that.

Again, to reiterate, security certificates are the wrong way to deal with national threats. People who plot a terrorist attack on Canada should be tried, convicted and punished, not simply deported to another country to either find their way back here or, if they are guilty of terrorism, to plot against other parts of the world and perhaps our allies.

Terrorism, espionage and organized crime are serious matters that should always be dealt with under our Criminal Code, not the Immigration and Refugee Protection Act.

Security certificate processes also violate rights and undermine the core values of our justice system. This is why they were struck down by the Supreme Court and this is why the people we have heard from, the experts in the field, say that this legislation will be struck down.

The public safety file is essentially about protecting the quality of life of Canadians. New Democrats, and members of the House as well, have always been very concerned about those balances between being free and being secure.

We not only oppose the legislation because of the major flaws I spoke to earlier, but we have no guarantee that suspected terrorists, removed under certificates, will not return to this country. The NDP believes clearly that the Criminal Code should be used to seek justice. That is a term that we do not hear when we look at the bill, justice.

We are asking to have the right to pick a person off the street, detain them, put them on a plane and send them off without having the right to seek justice, not having the right to stand before our courts, stand before their communities, stand before their families and argue in defence of themselves.

Today, of the five individuals who were detained, four are out. They wear ankle bracelets as they travel around. We should consider for a moment some of the restrictions they are living under, and this is supposed to be better than being housed and detained. With the ankle bracelet, if one of these people decides to leave the front room and go to the back of the house, that individual has to be accompanied by someone from the family. If the person goes into backyard, that person has to be accompanied by someone from the family.

If these people come to the House, they have to supply CSIS with exact routes, exact turns in the road, exact timing. Why in the world would we support anything that curtails the human rights of people, the rights of coming and going, to that degree? Why in the world would we ever consider putting ourselves in the position as a country to be party to the kind of thing that happened to Maher Arar?

We have Mr. Almalki who spent months, as Mr. Arar did, in a prison contained in a space the size of a coffin. That is how it has been described to me. When we deport people, what controls are put on that action? Where are the accountability lines that will come back to us to ensure we will have the kind of guarantees that people will not be subjected to torture?

We hear in this place every day about Afghanistan, the prisoners who are turned over to the Afghan authorities and questionable reports about the potential for abuse there. These are our allies in combat. We do not have a real report in the House that we can look at, what happened, who has followed up and where the lines of accountability are.

If we deport people to a country, if we literally put them on an airplane, send them to that country, how can we expect a line of accountability somehow in countries that torture individuals? It is not there. Every citizen in our country, every foreign national has a right to expect of our government and each of us here to ensure they are protected by every aspect of our freedoms in our country. One of the those freedoms is the freedom against torture.

As I have said repeatedly and have done so on purpose in my remarks today, the other expectation they have is their rights to face their accuser, to seek justice, to see the evidence against them. That right is something every Canadian holds dear. What has changed? I talk about how the mentality in the U.S. has changed and how that mentality has moved northward. Within governments it has changed. I spoke about the “hang 'em high” attitude.

Fairness and justice in the minds of Canadians has not changed. If we talk to Canadians in depth about this bill, they will say that they do not accept it and in fact they do not understand how we could even have come this far.

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 5:25 p.m.
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Liberal

Lloyd St. Amand Liberal Brant, ON

Mr. Speaker, I listened with interest to the speech of the hon. member for Hamilton East—Stoney Creek. Clearly he differs with our party. We are of the view that legislation of this type, or of this ilk, is needed in the national security interests.

With respect to the special advocates, the member made some comparison to the British model. I will concede there are some who have suggested that the special advocate system is basically paying mere lip service to the right of anyone detained to have effective representation. What is it about the special advocate system that troubles him so greatly?

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 5:25 p.m.
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NDP

Wayne Marston NDP Hamilton East—Stoney Creek, ON

Mr. Speaker, it is the fact that the advocate does not have the access to information to the degree that is necessary. Whatever access to information the advocate does receive is not in the public purvey. Clearly the certificates err in the fact that we do not have due process as contained in our Criminal Code where a person can publicly face the evidence against them and publicly react to it.

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 5:25 p.m.
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NDP

Judy Wasylycia-Leis NDP Winnipeg North, MB

Mr. Speaker, I am pleased with the comments that my colleague has made with respect to Bill C-3. I want to get at the sense he conveyed today about what is perhaps an overreaction by the Canadian government, and by that I mean both the previous Liberal government and the present Conservative government, to the situations around 9/11 and the threat of terrorism.

We are seeing a number of examples, in fact, of where the government of day seems to have had this knee-jerk response to a very difficult situation, and I am not diminishing the significance of that whatsoever, and it has put in place or proceeded with initiatives that create more problems than they set out to solve.

I guess today's example is last week's events around the taser incident in the Vancouver airport. It suggests to many that we have evolved into a society where we are quick to use tasers but could not put in place proper border services and translation services to help people coming from other countries.

As my colleagues from Windsor have pointed out, we cannot even put in place methods to ensure that paramedics and fire services can get across the border to help a community in peril because we are so focused on these knee-jerk, quick, easy, facile solutions that do not necessarily achieve what they set out to achieve and that create a lot of other problems in their wake. In this case, we are talking about interfering with people's civil rights and liberties.

I want to ask my colleague from Hamilton if he has any comments on that whole piece of the issue.

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 5:25 p.m.
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NDP

Wayne Marston NDP Hamilton East—Stoney Creek, ON

Mr. Speaker, this is exactly what the previous speaker has said. It is the erosion of fundamental rights that has taken place as a result of 9/11. Given the horrific nature of that incident, which we all saw on television as many Canadians died in those buildings, I am sure in my mind that the hearts of the people in this place ached as much at those events as those of people anywhere in the world. We could not turn away from those events.

On the other hand, literally hundreds of years of the evolution of law and the evolution of the Criminal Code were set aside in almost a casual way in the sense that it was so quick. I am very careful about the motivation in the hearts of the people at the time, but that does not make this setting aside right. This is the place where we have to defend the fundamental rights of Canadians. There is no other place to go to in this country.

When we have the Supreme Court striking down a piece of legislation, this place must consider it in more depth than this obviously has before this place moves forward on legislation of this nature.

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 5:30 p.m.
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Liberal

Lui Temelkovski Liberal Oak Ridges—Markham, ON

Mr. Speaker, in his debate, the member for Hamilton East—Stoney Creek mentioned that deported persons will never know the reason why they are deported. He found that offensive. I would like to suggest to the member that every country actually has the right to refuse someone entry. I believe it is called persona non grata. Every country has that right in regard to entry into a country and it never has to give people a reason why they are refused entry into the country.

As well, he mentioned that Canadians will never know what threat they were under. Perhaps he can explain a little further along those lines about how we can sometimes suck and blow at the same time.

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 5:30 p.m.
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NDP

Wayne Marston NDP Hamilton East—Stoney Creek, ON

Mr. Speaker, it is a very difficult situation but it comes back to a very fundamental thing, which is the right of democracies worldwide to say that one has the right to face one's accuser and the right as a person to know the evidence against oneself.

I do not think Canadians want to be part of a country that picks people off the street, throws them in handcuffs and puts them in the back of a van so that then they are gone. There is the word “rendition”, which is what happens in the United States. It is always very interesting to watch for and listen to the buzzwords of the day. Members should consider what rendition means. It is a code word for torture.

Very clearly, in a fragile democracy, and every democracy is fragile, when we start allowing people to decide who has more rights than others, then we are putting ourselves and our country at risk. The reality is very simple. We have a Criminal Code. The Criminal Code has the statutes. It is time for us to use those statutes.

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 5:30 p.m.
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Conservative

Steven Blaney Conservative Lévis—Bellechasse, QC

Mr. Speaker, I listened to my hon. colleague's speech and I would like to remind him that, based on the kind of debate we are having today, Bill C-3 seems to be enjoying the support of the other parties at this time and that this is all happening with the utmost respect for democratic debate.

I would also like to remind my colleague that Bill C-3 is a responsible answer to the requests of the Supreme Court. This expresses our government's desire to strike a balance between ensuring the safety of Canadians while upholding individual rights.

I did not hear my colleague suggest many solutions during his speech, although I felt here today that many members were looking for solutions and wanting to make suggestions to improve or amend the bill.

I want to ask the member what he thinks can be done to improve the bill.

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 5:35 p.m.
See context

NDP

Wayne Marston NDP Hamilton East—Stoney Creek, ON

Mr. Speaker, in the last minute or so of speaking time I have, let me say very clearly that this reaction on the part of the government is a very limited way to try to deal with a very serious situation that the Supreme Court of this country has struck down.

Many legal experts across this country are saying that this piece of legislation is flawed and will also be struck down. To be very clear, the government did not get the job done.

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 5:35 p.m.
See context

Liberal

Shawn Murphy Liberal Charlottetown, PE

Mr. Speaker, I am pleased to rise in the House today to speak on Bill C-3, An Act to amend the Immigration and Refugee Protection Act, and in particular the use of security certificates.

I have listened to the debate. I suggest that this is a very important issue. What the House is attempting to do here today is to balance two fundamental issues. The first fundamental issue, of course, is the protection of citizens. The second is the protection of the fundamental civil liberties that have been given to citizens over the years.

To speak of this balance, let me say that there is nothing of greater importance to any government in any country in any part of the world than the protection of its citizens. In fact, that is the very reason why governments came to exist. Centuries ago, governments were not involved in roads, health, education or the issuing of drivers' licences. They were there basically to fund and maintain armies to protect their particular citizens.

However, we have evolved greatly from those days. Now we have a very fundamental principle of democracy that is with us: that a person who is charged with an offence has certain basic rights. I would suggest that these rights spring from the whole law of habeas corpus, which was adopted several centuries ago, that is, that no person can be detained unlawfully and that in fact the body is to be brought forward. That is the basic principle of habeas corpus.

That law has evolved over the years. It has basically evolved to a point where persons who are charged have to immediately be informed of why they have been detained. They have to be informed of what charges they are faced with. They have to be given the right to retain and instruct counsel, the right to be given bail immediately, and of course the right to obtain a speedy, fair and equitable trial as soon as possible.

Those are basic, fundamental principles that have evolved in society and that are with us. Every member of this House certainly agrees with them. No one would want, in any way, shape or form, to abrogate them.

Those are the balances that we are dealing with in this particular and unique situation where the Government of Canada is dealing with individuals. Thankfully we are not talking about a great number of individuals, but that is beside the fact. The Government of Canada has to be prepared to deal with these situations if and when they do arise.

That is the balance this House is trying to achieve. From the debate, the discussions, the questions and the comments we have heard, members can see that it is not a simple debate. There are strong views on each side of the equation. However, it is incumbent upon this House of Parliament to strike the right balance.

We did have the security certificates that were adopted in 2001 shortly after the incidents of September 11. They were with us for several years. In February of last year, they were struck down by the Supreme Court of Canada, which basically felt that they violated section 7 of the Canadian Charter of Rights and Freedoms.

The gist of the reasons behind striking down the security certificates was that there was an absence of defence counsel and an absence of any proper disclosure. That was totally fatal to any notion of fairness. In her remarks, Chief Justice Madam McLachlin stated:

Without this information, the named person may not be in a person to contradict errors, identify omissions, challenge the credibility of informants or refute false allegations.

Therefore, the certificates were struck down. It was a very fair decision. Sometimes some of these court decisions are not totally fair because they throw the whole state of the law and legislation into chaos. In this particular case, the Supreme Court of Canada struck down the particular legislation, but gave the Government of Canada one year in which to correct it.

In its remarks, which I suppose would be obiter dicta to the main gist of the decision, the court pointed to other jurisdictions, and I believe it was referring to Great Britain, that might be used as a guide for Canada in the development of legislation which would be constitutional, and which would meet the parameters of the Canadian Charter of Rights and Freedoms. We have a five or six year history with this particular issue and it is still before us. It is still incumbent upon this institution to strike the right balance.

Some have argued that because the security certificates are infrequently used, we should not have them in our law. I disassociate myself totally with those remarks. I have a fire extinguisher and smoke detectors, which I have not used. I have a life insurance policy which has not been used, but just because I have not used those items does not give me any reason to do away with them. I totally disassociate myself with that kind of argument. We have to be prepared to deal with any exigencies that might come up, and there have been a number of instances in this country where we have had to deal with them. We are dealing with a balance situation.

I will be supporting sending the legislation to committee. Every one of us in the House, and I believe there are 304 of us right now, have different opinions, different views, and different ideologies. Bill C-3 is not a perfect piece of legislation. I probably would have done it differently in certain respects, but it is certainly an issue that I believe should go to committee, where a group of 12 parliamentarians can study it and hear from experts. If any improvements can be made, they can be made at committee and the bill can be brought back to the House for a final vote. I will be supporting sending the bill to committee for that reason.

I should point out that we are dealing with an issue of national security, and it is my premise that politics should have no part in this discussion. This is an important issue. We should all work collectively to get it right.

I thought the direction given by the court was very fair. I will read another quote. This is regarding other countries to which this country should look, which the legislation did in fact:

It is clear from approaches adopted in other democracies, and in Canada itself in other security situations, that solutions can be devised that protect confidential security information and at the same time are less intrusive on that person's rights.

We are dealing with certificates that have been issued in very exceptional circumstances and deal with exceptional people who are inadmissible to this country under grounds of security, who allegedly have violated human and international rights, and are involved in serious criminality or organized criminality, which is certainly not that common.

We are dealing with situations where the person who signs the certificates cannot, for reasons of national security, divulge all the information to the person subject to the security certificate. If a person is charged with murder and is detained, that person is certainly informed of who the person has murdered and when, the circumstances of the murder, all the facts surrounding the charge. In this case that information--and everyone can appreciate the rationale behind it--cannot, should not, and I hope, will not be disclosed to that person. That is confidential information and if it ever did get into the public domain, it would certainly be problematic.

Bill C-3 requires a mandatory review within 48 hours, which is certainly very reasonable in my opinion. There would be another review within six months, should the detained person want that. These reviews are conducted by a federal court judge.

One of the fundamental changes in this legislation as opposed to the previous legislation is the appointment of a special advocate. That person has to be qualified. The special advocate has to be skilled and has to go through a security clearance himself or herself. The special advocate has access to some of the information that forms the government's opinion. It allows for an avenue of appeal. The special advocate has the opportunity to discuss the issue with the person that is the subject of the security certificate. It streamlines the proceedings. It confirms the use of what I would call appropriate and reliable evidence and does provide some detention review rights for foreign nationals.

This has been used in other countries. It is my opinion that again it is not a perfect situation because the special advocate will not be able to disclose all information to the person subject to the detention order, but certainly it attempts to strike the right balance that we need in order to move forward.

We have to appreciate that the people who are subject to this detention order would normally have the right to go back to their country. However, this leads to another very important issue that will have to be discussed by the committee. It has to be clearly stated in a way that is enforceable that the person cannot be sent back to a country where there is any risk that the person will be tortured in that particular country. We cannot rely on any diplomatic statements from certain countries that torture will not take place. That is a very important issue. It is another balancing issue that is out there. Again, we can see the complexities of this particular situation as we attempt to strike what I would consider and call a very, very reasonable balance.

As I said before, I will be supporting sending the legislation to committee. It is not perfect as I said before. It is a little disappointing in that this ruling came down in February 2007 and the ruling stated that we had one year to correct the legislation. We are dealing with it now in December, and we are referring it to a committee. The committee has to get back to the House. We really should have the legislation in place by February 2008, which anyone with a calendar knows is a very short period of time. It is late in the process. However, we have to move on it as quickly as possible.

If I were doing it myself, I would probably make some of the reviews after the 48 hour review. Instead of at the request of the person subject to the security clearance, I would make it mandatory at every three months or six months.

Another point that is in the bill that does add a certain amount of accountability, and the accountability is strengthened, is that the Minister of Citizenship and Immigration and the Minister of Public Safety sign the security certificates. If it ever happened that the terms of the act were not followed, certainly the ministers and their supporting departments would be held to account. I do believe that those provisions in the bill lend a certain amount of accountability to the whole situation.

That concludes my remarks. As I said before, I will be supporting the bill. I do hope that the committee will move on it as quickly as possible, if the bill passes this House, and will bring back the bill in its final form.

Again, we are under a very strict timetable with this legislation. We hope this will be put to bed by February 2008, which is not too far away.