House of Commons Hansard #9 of the 39th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was bills.

Topics

Tackling Violent Crime Act
Government Orders

1:05 p.m.

Conservative

The Acting Speaker Royal Galipeau

The hon. Parliamentary Secretary to the President of the Treasury Board.

Tackling Violent Crime Act
Government Orders

1:05 p.m.

Nepean—Carleton
Ontario

Conservative

Pierre Poilievre Parliamentary Secretary to the President of the Treasury Board

Mr. Speaker, I see that I have been given unanimous consent to say a few words. I would like to thank my colleagues in the other parties for vesting such faith in me to give me this final opportunity to issue a closing word on the member's earlier remarks.

The member says that it has been his effort and the effort of other opposition members to attempt to improve the government's efforts to tackle violent crime. Does he consider it an improvement when he and other members of the Liberal opposition voted to allow arsonists, car thieves and burglars to serve their sentences in the comfort of their own home? That is precisely what they did in amending our bill to ban house arrest. They changed the bill to permit arsonists, car thieves and burglars to serve their sentences in our communities.

They also voted against mandatory jail time for gun criminals. The Liberals, including their critic, voted against mandatory jail time for gun criminals. Has he now reversed his position? Does he now accept that those criminals should be in jail, not doing house arrest, eating popcorn in front of their television in their living rooms?

Tackling Violent Crime Act
Government Orders

1:05 p.m.

Conservative

The Acting Speaker Royal Galipeau

Not to abuse the time of the House, given the courtesy that the House has accorded for this procedure, I have allowed one minute for the question and one minute for the reply.

Tackling Violent Crime Act
Government Orders

1:10 p.m.

Bloc

Réal Ménard Hochelaga, QC

Mr. Speaker, I am always delighted to debate with my young colleague.

When we examined Bill C-9 in committee, we learned that conditional sentencing was generally used by the courts only with extreme moderation, that is, in only 5% of cases. Could the courts have made some mistakes? Could there have been any cases in which the judges imposed a conditional sentence that was unwarranted? Perhaps. In such instances, the case is appealed. I do not believe this justifies the government's desire to take this power away from judges, who must always use discretion in these matters. I think all the opposition parties want to see conditional sentencing remain a tool available to the courts. That was the thrust of the amendments we put forward in committee.

Tackling Violent Crime Act
Government Orders

1:10 p.m.

Prince George—Peace River
B.C.

Conservative

Jay Hill Secretary of State and Chief Government Whip

Mr. Speaker, there have been consultations between all the parties and we certainly appreciate their efforts in moving this legislation forward. Therefore, I would like to move the following motion and I think you will find unanimous consent for it. I move:

That, notwithstanding any Standing Order or usual practices of the House, Bill C-2, An Act to amend the Criminal Code and to make consequential amendments to other Acts, be proceeded with as follows:

The bill be deemed read a second time, referred to a legislative committee;

the membership of this legislative committee be Dick Harris, Daryl Kramp, Daniel Petit, Gerald Keddy, Rob Moore, Marlene Jennings, Derek Lee, Brian Murphy, Larry Bagnell, Réal Ménard, Carole Freeman, Joe Comartin and that the Chairman be Rick Dykstra; and

proceedings in the committee on the Bill shall be concluded as follows: if not previously concluded by midnight on November 22, 2007, at midnight on November 22, 2007 any proceedings before the Legislative Committee shall be interrupted, if required for the purpose of this Order, and in turn every question necessary for the disposal of the committee stage of the Bill shall be put forthwith and successively without further debate, at the conclusion of the committee stage the Chairman shall be instructed to report the bill back to the House on November 23, 2007, and shall be authorized to table the report with the Clerk at any time, including when the House is not sitting, if the Bill is not reported back by midnight on November 23, 2007, the Bill shall be deemed to have been reported from the Committee without amendment.

Tackling Violent Crime Act
Government Orders

1:10 p.m.

Conservative

The Acting Speaker Royal Galipeau

Does the minister have the unanimous consent of the House to move the motion?

Tackling Violent Crime Act
Government Orders

1:10 p.m.

Some hon. members

Agreed.

Tackling Violent Crime Act
Government Orders

1:10 p.m.

Conservative

The Acting Speaker Royal Galipeau

The House has heard the motion. Is it the pleasure of the House to adopt the motion?

Tackling Violent Crime Act
Government Orders

1:10 p.m.

Some hon. members

Agreed.

Tackling Violent Crime Act
Government Orders

1:10 p.m.

Conservative

The Acting Speaker Royal Galipeau

Consequently, pursuant to order made earlier today, this bill is referred to a legislative committee.

(Motion agreed to and bill deemed read the second time and referred to a committee.)

Immigration and Refugee Protection Act
Government Orders

October 26th, 2007 / 1:10 p.m.

Conservative

Immigration and Refugee Protection Act
Government Orders

1:10 p.m.

Oxford
Ontario

Conservative

Dave MacKenzie Parliamentary Secretary to the Minister of Public Safety

Mr. Speaker, I appreciate the opportunity to rise before the House and discuss Bill C-3, An Act to amend the Immigration and Refugee Protection Act.

The Immigration and Refugee Protection Act is important legislation as it sets out the rules by which people from across the globe may seek to come to Canada. As a country built by the imagination and dedication of many people, we truly understand the value of diversity within society. In fact, Canada is known internationally as a welcoming and compassionate country. Each year we admit more than 95 million people to our country, including 260,000 new immigrants.

While we encourage immigration, Canadians also insist on vigilance against people and organizations taking advantage of our generosity and openness. They pose a danger to our nation and, in some cases, to other nations around the world. They have committed serious crimes, or violated human rights or even taken part in terrorism. These people are not welcome in Canada.

Canadians do not want our doors to be open to people who endanger our national security and the safety of our communities. The government wants what Canadians want. That is why we are unwavering in our determination to safeguard national security and to protect the safety and security of the Canadian public.

One of the most fundamental responsibilities of a government is to ensure the security of its citizens, and this government has taken its commitment very seriously.

The Immigration and Refugee Protection Act provides the government with a process to remove non-Canadian citizens who are inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. When classified information is involved in support of the inadmissibility decision, the security certificate process may be used.

It has been in place for over 20 years, but it has only been used 28 times since 1991 in the most serious cases. Certificates have been issued against spies, terrorists and extremists. They can never be used against a Canadian citizen, and that is a very important part.

The reason Bill C-3 has been introduced is quite straightforward. Security certificates are used to protect Canadians. They are a vital national security tool. At the same time, when we take steps to protect Canadians and national security, we must also take steps to respect civil liberties and protect our core values. These values include freedom, democracy, human rights and the rule of law.

In February the Supreme Court of Canada confirmed the use of security certificates generally. However, it found aspects of the security certificate process that required legislative improvement. In addition, various parliamentary committees have recommended changes to the Immigration and Refugee Protection Act.

The government has moved swiftly and is taking action. Bill C-3 is an essential public safety tool that enables us to continue to prevent inadmissible persons from remaining in Canada while ensuring that there is better protection of the rights of individuals subject to security certificates.

Bill C-3 would set into law the Supreme Court of Canada's ruling on security certificates, and takes into consideration the recommendations of both Houses of Parliament.

We have acted to strengthen the law to address the findings of the court. Protecting both security and human rights can be a challenge. As the Supreme Court stated in its ruling, this is:

—a tension that lies at the heart of modern democratic governance. It is a tension that must be resolved in a way that respects the imperatives both of security and of accountable constitutional governance.

While the Supreme Court confirmed the use of security certificates generally and stated that one of the most fundamental responsibilities of a government was to ensure the security of its citizens, it found there was not sufficient opportunity to challenge the government's case.

The Supreme Court identified areas where the security certificate process must be changed to better protect the rights of individuals subject to a certificate. The court noted that detention under the security certificate process did not constitute cruel or unusual punishment under the Canadians Charter of Rights and Freedoms if accompanied by a process that provided for regular opportunities for appropriate detention reviews.

However, let me stress one important fact about the security certificate process. It is not about detention, but rather about removing non-Canadian citizens because they represent threats to public safety and national security.

Individuals named in a security certificate would be released from detention if they chose to leave Canada and return to their country of origin. Detention is meant to protect the safety and security of the Canadian public until they can be removed from Canada.

Further, the court said that the certificate process did not violate section 15 rights under the charter; that is to say, equality rights. These are important findings.

It is clear that we need the security certificate process. It is a valuable public safety tool and the court has given the government an opportunity to amend the legislation by suspending the effect of key portions of its decision for one year.

In addition, it must be emphasized that if we do not pass this bill by February 2008, an important public safety tool would be lost. The government would be unable to issue new certificates against non-Canadian individuals who pose a threat to the security of Canada.

In addition, individuals currently subject to a security certificate would 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.

What changes did the Supreme Court of Canada say were needed?

It found that the in camera ex parte proceedings do not provide the person named in the certificate a sufficient opportunity to know the case against him or her and challenge that case. The court ruled that a process had to be put in place to better protect the interests of individuals subject to security certificates.

It also gave foreign nationals the same rights as permanent residents in the context of detention reviews. In that light, it stated that these reviews should occur 48 hours after arrest and at least once every six months thereafter for both foreign nationals and permanent residents. These changes took effect immediately upon the court ruling.

The special advocate function will help ensure fair court proceedings and provide a means to challenge classified evidence.

As I have already mentioned, the Supreme Court indicated that a mechanism was needed to better protect the interests of individuals subject to a security certificate.

Bill C-3 sets out that mechanism by introducing a special advocate in the Federal Court process to determine the reasonableness of the certificate.

The special advocate's core role would be to protect the interests of the subject by ensuring a person's interests are adequately represented during closed court proceedings. The special advocate would be able to challenge the minister's claim to the confidentiality of classified information, as well as its relevance, reliability, sufficiency and weight. The special advocate would also be able to make written and oral submissions to the court and question government officials involved in the case.

It is important to appreciate that this model would strengthen an important public safety tool by making it fairer to the person subject to the certificate process, while recognizing the need to prevent the disclosure of confidential public security information.

How would the process work?

The Minister of Justice will establish a list of persons with the qualifications set out in regulations, who may act as special advocates. Some of the qualifications which may be set out in regulations include membership in good standing in a law society of Canada, at least five years' relevant litigation experience, no conflict of interest and appropriate security clearance.

The special advocate will be able to communicate with the individual subject to a security certificate without any restrictions before he or she sees the classified information. At that time, the special advocate will have the benefit of an unclassified summary of the case to discuss with the subject. This should substantially assist the special advocate in preparing for the closed ex parte hearing.

The special advocate will then be privy to the classified information. Once that happens, the individual can no longer communicate with anyone about the proceeding while it is ongoing, except as specifically authorized by the judge. The special advocate may apply to the judge for permission to communicate with the subject of the certificate. If the judge grants the request, he or she may impose conditions, such as to communicate only by writing, to avoid the inadvertent disclosure of any confidential information.

Another important aspect of the special advocate regime is that there is no solicitor-client relationship with the subject of the certificate. That is because it would likely create a conflict of interest for the special advocate in light of the restrictions on communication imposed once the special advocate has seen the classified information.

The nature of the solicitor-client relationship, in particular the duty of candour owed to the client by his counsel, might be construed as to require the special advocate to reveal as much as possible about the classified information to the subject of the security certificate. At the same time, the special advocate would be required to protect the classified information from disclosure.

Let me be clear that without the solicitor-client relationship, the special advocate can still protect the interests of the subject by challenging the confidentiality of the evidence as well as the relevance, reliability, sufficiency and weight of that evidence.

Aside from security certificate cases, other decisions made under the Immigration and Refugee Protection Act may also involve the use of classified information. In the course of a judicial review of such a decision, a special advocate will be available if the judge, on a discretionary basis, concludes that considerations of fairness and natural justice require it.

Bill C-3 proposes other legislative changes to meet the requirements of a Supreme Court decision, address a number of parliamentary recommendations and deal with gaps in the act.

Other legislative changes proposed in the bill include: concurrent reasonableness hearings and risk assessments to streamline the proceedings and security certificate cases; permitting appeals of the decision on the reasonableness of the certificate upon certification, which is consistent with how all appeals under the IRPA are dealt with; confirming that foreign nationals have the same detention review rights as permanent residents, as the Supreme Court did express in its decision; and, transitional provisions to provide for the treatment of existing certificate cases under the new law in the most transparent and fairest manner possible.

I will now explain these proposed changes in a bit more detail. I will begin with concurrent processing. When a security certificate is issued, it is referred to the federal court to determine if the security certificate is reasonable. The individual subject to a certificate can also apply for protection from return to a country where the person would face a substantial risk of torture or cruel and unusual treatment or punishment or risk to life. This is called a pre-removal risk assessment, or PRRA. As it now stands, the PRRA process takes place and the review of the reasonableness of the certificate is suspended until its conclusion. This is because the law provides that the judge who decides the reasonableness of the certificate must also decide on the lawfulness of the PRRA decision. This has caused delay.

Bill C-3 proposes to do away with the suspension of the reasonableness hearing. It provides that the Crown or the court may review the reasonableness of the certificate concurrently with the review of the lawfulness of the PRRA. The court's review would take place outside the certificate process without the need for the same judge to review both decisions. This approach seeks to limit the potential for significant delays that might result while waiting for a decision on the PRRA before having the court assess the reasonableness of a certificate.

The next proposal in the bill is to allow for the appeal of the reasonable determination and on decisions on detention if the judge decides a serious legal issue has been raised for the consideration of the Court of Appeal. This requirement, called certification of a question, is consistent with the way other decisions under the IRPA may be appealed.

Currently, the decision on the reasonableness of the certificate cannot be appealed but, practically speaking, the courts have recognized certain exceptions to this rule. Accordingly, appeal upon certification of a question will provide a mechanism that enhances fairness.

The next change proposed by Bill C-3 is almost a formality given that the Supreme Court has already deemed this change effective and in force. In fact, the court ruled that foreign nationals and permanent residents should have the same rights to detention review. This ruling means that since February, both permanent residents and foreign nationals are granted a review of their detention within the first 48 hours after arrest and every six months after that. Prior to this decision, the IRPA stated that foreign nationals were entitled to a detention review 120 days after the certificate was found to be reasonable.

Finally, Bill C-3 proposes transitional provisions that would allow for cases commenced under the previous legislation to recommence under the new legislative regime. This is to ensure that appropriate and orderly change from the old legislation to the new will provide the benefits of the new legislation to the current individual, subject to a security certificate.

As members can see, a great deal of thought has gone into this bill. Not only have we responded to the Supreme Court of Canada's ruling, but we have also been mindful of the recommendations made by committees in both Houses of Parliament.

We are offering more protection for individuals, subject to a security certificate. We are providing for appeals that are not allowed under the current legislation. We are giving foreign nationals the same detention review process accorded to permanent residents, as the Supreme Court directed. We will review all current cases in conformity with the new regime once it comes into place.

We want to protect Canadians. It is our duty to both Canadians and the international community to stop dangerous people from committing heinous crimes or terrorism.

I urge all members of the House to support Bill C-3. If opposition parties are serious about protecting Canadians from an individual posing serious threats, now is the time to show it.

Immigration and Refugee Protection Act
Government Orders

1:30 p.m.

Conservative

The Acting Speaker Royal Galipeau

It being 1:30 p.m. the House will now proceed to the consideration of private members' business as listed on today's order paper.

When Bill C-3 returns to the House there will be four minutes left for the hon. the parliamentary secretary, in addition to ten minutes of questions and comments.

Canada Evidence Act
Private Members' Business

1:30 p.m.

Bloc

Serge Ménard Marc-Aurèle-Fortin, QC

moved that Bill C-426, An Act to amend the Canada Evidence Act (protection of journalistic sources and search warrants), be read the second time and referred to a committee.

Mr. Speaker, I believe this is the second time that I have the honour of addressing the Chair regarding this bill. It is because of the parliamentary recess and prorogation that I have an additional hour of debate. However, I do feel the need to summarize what I said when the bill was introduced for the first time. Following this new process, many people may think, when they read Hansard, that this legislation is being debated for the first time. So, this is an opportunity for me to respond to a few questions, and even to some criticism that I have heard since the introduction of this bill.

It is true that I have been interested in this issue for a least some 30 years, perhaps even longer—since 1968, in fact. I remember that, at the time—this was before the Charter—we were hoping for legislation to deal with what this bill is addressing. The Charter allowed us to make some progress, but not enough. I find it deplorable that the journalistic practice that I want to protect with this legislation has not been better protected here, even though it has been protected to some extent by the Supreme Court of Canada. The fact is that a very large number of countries in the world, which abide by the same principle of press freedom, have passed laws to ensure such protection.

It is important to first understand this: I am not asking that privilege be bestowed upon journalists. What I am asking for is what the bill would establish: protection for these individuals who we have to recognize have the courage to expose scandals, instances of misappropriation or fraud, and who might face reprisals, should their identity be revealed. The risks they face can run high, depending on the organizations they go after, for example when there is fraud within major organizations.

We are talking about a journalistic practice that has developed over the past 50 years and which is generally recognized as a good thing in our societies. In fact, these individuals who become aware of situations where funds are misappropriated take this information to a journalist. In return, the journalist offers confidentiality, promising never to disclose their name without their consent. That journalistic activity is what this bill seeks to protect.

Usually, journalists look into the matter brought to their attention. They are guided in their investigation by this confidential source, but do not reveal the scandal until the facts can be independently confirmed and they believe it is in the public interest to make the misappropriation known.

The first part of the legislation would enshrine this journalistic practice whereby a journalist may promise his sources that they will remain anonymous for as long as they see fit or fear reprisals.

I also want to protect the practice of journalism. I might add that journalists should not be regarded as auxiliary police, as Supreme Court judges have pointed out in R. v. Lessard.

There are therefore five major provisions in this bill. The first one provides for the protection of journalistic sources, as set out in subclauses 3 to 6, the first two subclauses dealing with definitions and application respectively. As for subclause 7, it provides for something special: lesser but nevertheless very significant protection for unpublished journalistic material.

The objective here is that journalists not be perceived by the public as aiding the police. Usually out of laziness, the police want to give journalists information that they themselves have decided not to release. This is especially true in the case of demonstrations or strikes that turn bad.

The third part refers to issuing search warrants, the conditions for such warrants and conducting the search. Finally, subclause 11 provides a simple way of publishing information under the Canada Evidence Act. It seems to me that there is no need to require someone to appear. A publication is a publication. All someone would have to do to prove that something has been published is produce the publication.

As with any right or duty we want to grant or any value we want to protect, we have to think about other values that may conflict with those we want to protect. Certainly, nearly all the members of this House recognize that the journalistic practice of protecting confidential sources has made it possible to shed light on serious misdoings.

History is filled with such cases, the most famous being Watergate, the Enron scandal and even the sponsorship scandal. In my opinion, confidential sources will likely be increasingly necessary and common as companies secretly try to circumvent environmental protection rules, for example. A journalist would need to be pointed in the right direction in such a case. Here again, journalists will always have to base what they write on evidence they have obtained independently, or else pay damages in case of libel. Their papers will have to pay as well, which is why newspapers are fairly cautious in using this journalistic practice. Our intent is not to create a licence to commit hidden libel.

Since we are talking about a social value and not a privilege given to a certain category of people, the bill provides that judges themselves may raise the issue if they see that there is a problem of a confidential source. Judges may—I am not saying they must—raise the issue and ask the lawyers for their opinion. In this way, judges can protect the source against a negligent journalist who promised to protect a source but did not take steps to do so or no longer objects to the source's identity being revealed. Because the bill aims to protect the source, judges may raise this issue on their own initiative.

This tool is well defined in clause 5. A judge can weigh the values that may lead to contradictory decisions.

I was asked what judge this refers to. If we understand the section well, it means the judge before whom the journalist testifies or a judge who is asked to order the journalist to disclose their sources. This can mean a number of different types of judges who preside over criminal or civil courts, or even a federal court, as is currently the case. The judge could nonetheless order this disclosure, but only if the judge considers it to be in the public interest or if the following conditions are met.

The person has done everything in their power to discover the source of the information and the disclosure is in the public interest, having regard to the outcome of the litigation—that which is at stake—the freedom of information, and the impact of the journalist’s testimony on the source. Obviously, they will assess whether the source did indeed tell the truth or not and whether they committed a crime or not. It is still quite possible to have cases on this issue.

As far as clause 7 is concerned, perhaps because it is short, some people did not exactly understand the significance of it. This is the third part of the legislation I am proposing.The purpose of this clause is to protect a journalist's information, namely unused footage for television. Journalists must not be perceived as auxiliary police, as an easy place to go to for evidence of wrongdoing during a demonstration, for example. That was the context of most of the cases I dealt with in my career as a pro bono legal advisor.

The courts have been very clear about their reasons for accepting such a thing. For example, Justice La Forest, in Canadian Broadcasting Corp. v. Lessard, said:

Freedom of the press is vital to a free society and comprises the right to disseminate news, information and beliefs. The gathering of information could in many circumstances be seriously inhibited, if government had too ready access to information in the hands of the media. The press should not be turned into an investigative arm of the police. Thus, the fear that the police can easily gain access to a reporter's notes could well hamper the ability of the press to gather information.

Clause 7 seeks to protect that freedom. It sets out the exceptional situations in which it might apply.

The rest of the bill, except for the last subsection, deals with search warrants. I have basically summarized existing case law, which is much clearer on this issue than on the first one my bill addresses. I have explained all of this in detail before, and people can review the record.

I also want to point out that this principle has been recognized in most European countries. It has been recognized in 32 of the United States through legislation and in 18 others through case law. There is one major exception in the United States: the principle is not recognized in federal legislation, but it is widely recognized elsewhere.

In Sweden, the principle was considered so important that it was enshrined in the Swedish constitution. England does not have laws to protect journalists, but the European Court of Human Rights overturned the conviction of a journalist who refused to reveal a source he had promised to keep anonymous.

It is clear that this journalistic practice is widely recognized in the civilized world. The principle is recognized in Canada, but I think that it now makes sense to enshrine it in law to simplify things and to guide the people involved, such as police officers, journalists and justices of the peace who issue warrants.

The courts will decide whether this complies with the charter or not. The charter recognizes basic rights, but in a society like ours, people have much more than basic rights. It makes sense to define those rights in relation to the charter, of course, but sometimes we need to go beyond the charter. Parliament must step up to the plate and must not leave the toughest problems to the judges.

Canada Evidence Act
Private Members' Business

1:45 p.m.

Lotbinière—Chutes-de-la-Chaudière
Québec

Conservative

Jacques Gourde Parliamentary Secretary to the Minister of Labour and Minister of the Economic Development Agency of Canada for the Regions of Quebec

Mr. Speaker, certain provisions of Bill C-426 are of concern. For example, the definition of “journalist” is so vague that it could include occasional bloggers. Does my dear colleague and member really wish to adopt a provision that would complicate the work of parties that wish to obtain information from bloggers?