Mr. Speaker, we are debating a bill that is intended to amend the Immigration and Refugee Protection Act for the purpose of making it more charter compliant. In fact, the government did not just dream this up. The bill has come to us as a direct result of a decision of the Supreme Court of Canada in the Charkaoui case, wherein the court identified a weakness in procedural fairness.
I think it is fair to say that many people had identified this potential problem over the years. It was never clear to all of us that the procedure which then existed would fall so short of charter compliance standards that we had to fix it. The problem was identified some years ago, and this bill attempts to make a repair, a fix, to the section in the Immigration and Refugee Protection Act to better protect those who are subject to the procedure.
I want to say a few words about the role of the Supreme Court in bringing about these kinds of changes.
This is not the first time Parliament has been asked, invited or told by the Supreme Court of Canada to do some additional homework to repair our legislation. I can recall a situation that developed about 10 years ago. It was the Feeney case, which was in front of the criminal courts. The case had to do with the ability of a police officer or peace officer to pursue an individual who was suspected of a crime. It is essentially a scenario involving hot pursuit, where the individual is seen committing the crime and then followed until the officer is able to arrest the individual and bring him or her in for either questioning or charging.
In the Feeney case, the police officer, in pursuing the individual, followed him to his residence. The individual entered his private residence and at some point the police officers followed and went in. The question that came up was whether a police officer could invade the privacy of a private residence without a warrant.
Up until then, our laws and our court jurisprudence had accepted that in a scenario of hot pursuit, a police officer could follow and enter into a private residence. In the Feeney case, the Supreme Court found that under the charter the police could not go into a private residence in that circumstance, and that the law needed repair.
I want to go through this carefully because I think this case and others are developing a kind of a protocol and jurisprudence, a kind of a dialogue with the Supreme Court, one that is necessary. It took us a long time to get here.
When the Supreme Court makes a charter interpretation of the law and it finds something non-compliant with the charter, it has the ability to strike it down immediately, or to strike it down after a certain period of time, or to read in a change to effectively legislate. The court can say that it will add these words in the statute, just like Parliament should have legislated them in the first place.
It does not do that very often. It does not read in very often and it perhaps does so reluctantly. In this particular case, in the Charkaoui case, that brings us this legislation, it did not read in. It gave Parliament time to repair.
In the Feeney case about 10 years ago, it struck down and gave Parliament six months to fix it. At the time it made the ruling Parliament was going into a general election. In my view at the time I thought that was pretty dumb of the Supreme Court. I am saying this with some respect. Looking back I have the benefit of 20:20 hindsight of course, but at the time the Supreme Court of Canada gave Parliament only six months to fix a piece of criminal law legislation when we were going into a general election, which would necessarily involve a break of several months. This did not give Parliament enough time.
At some point the bright lights turned on and the Department of Justice went back to the court and obtained a further extension. That was reasonable. The court was not unhappy with that. The point at the time was that this business of the court disallowing and giving Parliament three months or six months had to be done with a working knowledge of how Parliament worked. The government itself does not have the power to legislate. The government must bring the matter to Parliament and Parliament, through both Houses, makes the changes.
I was very unhappy about the Feeney situation that developed with Parliament. It has however allowed the development of a dialogue between the courts and Parliament. In this case the court gave Parliament a year and that should be enough time. In this case, if the House passes the legislation, it can deliver on what the court hoped we might deliver on. The court is doing its job. I do not criticize the courts for interpreting the law on behalf of citizens.
In this particular case the law does not invent or reinvent security certificates. It revises the procedure that is used in relation to security certificates. I know that there are those in the country who question the need for security certificates under the Immigration and Refugee Protection Act.
I have always accepted and they have been in the law here for some time, that our government, the people representing the people of Canada under the Immigration Act, need the ability to remove people from Canada. We do it all the time.
Every week there are dozens of people being removed from Canada as illegal immigrants. These are people who do not have status here, people who should not be here. They are removed simply because they do not comply with the Immigration Act or maybe they have serious criminal records.
The reasons for removal are all set out in the statute. To my way of thinking, the security certificate provisions are simply a refined component of immigration deportation procedures. It is not a special thing developed to remove whomever the government thinks it might want to remove. In fact, if I can take that other perspective, it is simply a deportation procedure on a faster track with one important difference.
The person involved has been found by the government, not simply an official in the government, not an immigration officer or not a bunch of immigration officers, and not the Canada Border Services Agency but two ministers of the Government of Canada and effectively the cabinet, to be a danger under national security and under security definitions, and must be removed.
We must always remember that we are not dealing with Canadians. We are dealing with non-Canadians. The security certificate provisions do not involve Canadians, only non-Canadians. The non-Canadian category includes people with no status and people who have permanent resident status but are not citizens.
I have always maintained that government needs the authority to remove people because we deport people all the time. There are perhaps two reasons why the security certificate procedure has been designed specifically for security reasons.
First, the circumstances involving security may or may not be quite pressing. As history has evolved, it would appear that the circumstances lying behind security certificates, in most of the cases they have been used, are not that pressing. The procedure has not been used all that often, a dozen or two times over the years perhaps. It is not like the person is a terrorist and about to push the button. The certificates have involved individuals who comply with the security concern definitions.
The other reason for a specific procedure is that in dealing with security matters some or most of the information that will be brought forward to describe the security concern will be information that is protected, secret, confidential, classified, or whatever we want to call it. In most circumstances, it would be neither appropriate nor wise, nor allowable to present that information in an open court or public forum.
We have classified that information because it involves security matters outside the country and has been received on a secret, classified basis, and analyzed and presented. There needs to be a procedure to protect that information for the same reason we protect all classified security information. We do that routinely as a country.
We protect our classified information right through the entire range of government. If we are using classified security information in relation to an individual subjected to these procedures, then we need a special procedure that will do that. That is one of the reasons why we use the security certificate procedure.
I will just offer a hypothetical example, one that is not too bizarre. I will refer to the mythical Carlos the Jackal, who I understand is now deceased. Imagine that person had been found living in Moose Jaw under an alias and we wanted to remove him from this country, but he had not committed any offences in Canada. Would he have been a simple deportee? Would we invite him for a hearing in front of an immigration officer and then tell him to come back a week later when a decision would be made? Would we ask him if he wanted a lawyer?
We have lots of procedural fairness available to people subject to deportation proceedings. The answer with respect to my example is clear. We would probably want to remove him quickly. We would have classified national security information which could not be disclosed on the street because it would reveal some of our procedures and protocols on dealing with security matters. That is one of the reasons why we do not make these things public. However, they are real and ongoing. So, getting rid of Carlos the Jackal would require a special procedure, and that is the security certificate procedure that we have developed.
In that particular hypothetical case, he is not a permanent resident; he has no status in Canada; he is hiding here; and he is to be removed to his country of citizenship. This is not a rendition. This is simply a removal to his country of citizenship; and in that case, there were probably a lot of countries looking for him. Nonetheless, that is a security certificate procedure, hypothetically, as opposed to a simple deportation removal.
I heard an hon. member, I think it was the member for Trinity—Spadina, say that the security certificate procedures breach the charter. They do not. They have all along, up until now, over all the years we have had them, been found to be charter-compliant, except for the Charkaoui case and the courts spotted flaws, things that we could do better.
In the Charkaoui case, the courts have said that presenting classified information to a judge without adequate disclosure to the person subject to the proceeding was not fair. It was not charter-compliant. It just did not go as far as it could. We could make more disclosure.
And if I can revive my hypothetical, we would not give the whole file to Carlos the Jackal. We would actually find a way to make him aware of the nature of the facts on which he is being removed from Canada.
The method chosen by the statute is the appointment of a special advocate. This is not a new construct. In security matters, we have already put to use specially retained security-cleared counsel in other aspects of litigation and security work. I will just give members one example.
When an individual employee of the Government of Canada or a complainant involving the work of CSIS or an opinion on a security clearance by a department based on the work of CSIS has a complaint about that, he or she may complain to the Security Intelligence Review Committee. That committee has routinely retained security-cleared counsel to view all of the evidence and to advocate on behalf of the individual who, for security reasons, is not able to directly see all of the classified information.
The special security-cleared counsel, under the SIRC security hearing procedures, has worked quite well, in my view. It has worked since 1984. There have been no serious concerns expressed about that.
Under the security certificate procedures here, we are inserting and putting into that an analogous mechanism where there will be a special advocate who will be a lawyer and who will have the ability to, under the supervision of the presiding judge, review all of the classified information or the classified information which the judge believes is necessary to allow adequate sufficient charter-compliant disclosure to the individual subject to the hearing. That is a good mechanism. I fully support it and I am sure it will work.
The last thing I want to say is that I have a concern about section 82.2. This section would allow peace officers, when a person is released during the certificate procedure, to arrest the person if they know there has been a breach of the condition or if they anticipate a breach.
I am concerned about giving that authority to a peace officer, about giving to peace officers the power to arrest someone because they think there might be a breach of condition happening. I am worried about an abuse, not a fair situation or a good faith situation. I am worried about a breach. However, this issue can be looked at by the committee in terms of fairness, charter compliance and the right allocation of power.
In all other respects, I remain supportive of this legislation.
