House of Commons Hansard #20 of the 39th Parliament, 2nd Session. (The original version is on Parliament's site.) The word of the day was coal.

Topics

Questions Passed as Orders for Returns
Routine Proceedings

10:20 a.m.

Some hon. members

Agreed.

Afghanistan
Points of Order
Routine Proceedings

November 20th, 2007 / 10:20 a.m.

Independent

Louise Thibault Rimouski-Neigette—Témiscouata—Les Basques, QC

Mr. Speaker, I rise on a point of order.

I seek the unanimous consent of the House to honour the memory of the soldiers who fell in battle recently, by observing a moment of silence at 3 p.m., following question period.

Afghanistan
Points of Order
Routine Proceedings

10:25 a.m.

NDP

The Deputy Speaker Bill Blaikie

The House has heard the request of the hon. member that there be one minute of silence after question period today with respect to the deaths of soldiers in Afghanistan. Is there unanimous consent?

Afghanistan
Points of Order
Routine Proceedings

10:25 a.m.

Some hon. members

Agreed.

The House resumed from November 19 consideration of the motion that Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, be read the second time and referred to a committee.

Immigration and Refugee Protection Act
Government Orders

10:25 a.m.

Liberal

Mario Silva Davenport, ON

Mr. Speaker, before I begin my remarks I first would like to mention that I will be splitting my time with my hon. colleague, the member for Don Valley East.

I am pleased to join my colleagues in the House in discussing a very important piece of legislation that has been brought before us for our consideration.

Most people, on hearing the name of Bill C-3, An Act to amend the Immigration and Refugee Protection Act, may think it deals with immigration policy, but in many respects this is a security bill. This proposed law of course deals with security certificates and, in particular, the issues that arise out of the February 23, 2007 Supreme Court of Canada decision.

The reality is, as has been stated a number of times by various members, that if new legislation is not passed by this House to address concerns raised in the February 2007 Supreme Court decision, then the security certificate process will effectively terminate, so this is indeed an important debate.

The security certificate process itself has been in existence for approximately 20 years. In fact, a variation can be found as far back as the 1960s, when it was utilized to remove from Canada an organized crime figure.

Since 1991 we have seen in this country the use of security certificates 28 times. Since 2001, a pivotal mark, of course, in the history of anti-terror initiatives, the Canadian government has issued six security certificates. The system most notably has been amended twice, once in 1991 and again in 2001.

The whole security certificate system does represent a contentious process that has over the years created as many critics, it seems, as supporters. Among those that have opposed the system are the Canadian Bar Association, Amnesty International and Human Rights Watch.

Internationally, Canada also has come under criticism for its security certificate system from the United Nations Committee Against Torture, the United Nations Working Group on Arbitrary Detention and the United Nations Human Rights Committee.

Notable Canadians such as former solicitor general Warren Allmand and former foreign affairs minister Flora MacDonald have also expressed opposition to the security certificate system.

At the same time, there has been support for the system both from Canadians at large and from successive Canadian governments that identified the security certificate system as an important and indispensable tool to deal with individuals who represent terror, crime or human rights threats to Canada.

It should be noted that an earlier court challenge to the security certificate system resulted in the December 10, 2004 decision by the Federal Court of Appeal that found the process constitutional. This, of course, remained the prevailing judicial ruling until June 2006, when arguments were made with respect to two individuals being held on security certificates.

The result of these June 2006 arguments before the Supreme Court of Canada was the judicial decision of February 23, 2007, which immediately changed some provisions of the security certificate system and required the government to amend the law within one year, that is, the court issued a suspended ruling with effect by February 2008.

Among the court's rulings with immediate effect was the decision to strike and effectively replace the provision that distinguished between refugee claimants or non-residents and those with permanent resident status.

The suspended ruling dealt with, of course, the fairness of the exclusionary provisions with regard to evidence being used to sustain the security certificate. This part of the Supreme Court of Canada ruling goes to the heart of the issues that the government has indicated it is trying to address with Bill C-3, which we are debating today.

We all know that the court essentially ruled that the absolute inaccessible nature of the evidence used to hold a person on a security certificate was inconsistent with sections 7, 9 and 10 of the Charter of Rights and Freedoms. The ruling is of significant consequence to Canadians.

The Charter of Rights and Freedoms represents for Canadians not only a document, but rather a depository of our national values and our traditions of freedom. When our highest court finds provisions of a law are incompatible with the charter, we are called to take note.

Essentially, Bill C-3 is designed to address the issue of secrecy with respect to evidence. The Supreme Court, in simple terms, found the total secrecy and inaccessibility of evidence used to hold a person under a security certificate to be egregious and in need of redress.

The bill, by creating the so-called advocate, has, as its purpose, the redress of the Supreme Court's concerns.

Under Bill C-3, the justice minister would create a list of advocates. These would be lawyers, as we understand it, with at least five years of relevant experience, have no conflict of interest and in possession of the appropriate security clearance. These advocates would have an opportunity to meet with their clients prior to reviewing the evidence using only the court summary that is not considered sensitive. Then they will have access to the evidence. Once this has taken place, they cannot reveal to their clients the contents of the evidence. They can make a judicial appeal based on their viewing of the evidence with respect to the contents but they cannot reveal its contents to their clients. This is, of course, a major departure from the traditional view of lawyer-client privilege.

The reality is that there remains a secrecy aspect of this process that still seems to challenge most conventional views of judicial fairness.

However, we need to remember that these situations are unique and rare. They apply only to non-Canadian citizens and there is judicial recourse, albeit limited in comparison to standard legal practices with which we are generally accustomed as citizens.

As a country, we are not alone in these challenges. The United Kingdom has undergone similar debates and challenges. In 2004, the House of Lords, or law lords, ruled against the system in place there that allowed for unlimited detention. The result, after much debate and angst within the political arena, was a significantly modified and much more limited system of non-traditional detention for potential terror and human rights suspects.

The question for us today as parliamentarians is not unlike that which has faced legislators in the United Kingdom and other traditional western democracies. What is the proper balance between fundamental human rights protections and the need to protect the state and its citizens from persons of risk and, in particular, non-citizens who seek to take up residence in Canada?

This is a fundamental question, a question that we will need to consider carefully over the next short period of time leading up to our vote on this matter.

We must tread carefully when we venture into the realm where fundamental legal rights need to be compromised or withheld. We must exercise caution when we make decisions that afford to our security services and the court's secrecy that we would normally consider inconsistent with the principles of our democracy and our judicial system.

However, over the coming days we as legislators will determine and finally vote upon the bill that is before us today.

Does the need for security of our state and of Canadians require the measures we are bringing forward into law? This is a question we will reflect upon as we prepare to vote on Bill C-3.

The world has changed. There are threats that would once have seemed inconceivable to us that now present themselves as real. Is Bill C-3 justified? Does the need for this kind of law outweigh the concerns?

I know all members of the House will ask, as I will, these important questions as they cast their vote in the very near future. Canadians expect no less than this from us and we must serve them well in this regard.

Immigration and Refugee Protection Act
Government Orders

10:35 a.m.

NDP

Bill Siksay Burnaby—Douglas, BC

Mr. Speaker, the security certificate provisions of the immigration act allow for the deportation of people who are alleged to have participated in very serious criminal activity in Canada, activity related to terrorism, to plotting against the national security of Canada, to espionage and to organized crime. It allows for their deportation without them ever having been charged or convicted of those very serious crimes. Here we are removing people from Canada who are alleged to have committed very serious criminal violations but have never been charged, convicted or punished for those crimes.

I wonder if the member believes that it is appropriate to remove people from Canada without holding them accountable for serious criminal activity, like terrorism or threats to national security, and then sending them to their home country or to another jurisdiction without them ever having been charged, convicted and punished for those serious criminal matters.

Immigration and Refugee Protection Act
Government Orders

10:35 a.m.

Liberal

Mario Silva Davenport, ON

Mr. Speaker, I commend my hon. colleague for his work on human rights because I know he deeply cares about human rights.

Part of what I was trying to state in this debate is that I have serious concerns, as do many people who are involved in human rights. Many organizations, from Amnesty International to others, have raised concerns and alarm bells. We want to ensure that whatever legislation we bring forward is charter compliant. We heard from the Supreme Court that there were issues of concern in the legislation that was brought before this House in years past.

One positive thing I have seen come forward from this is the role of the special advocate. It is something that the United Kingdom also has in place, and I see it as a very favourable thing.

However, I must say that there are still some concerns with this legislation but, at the same time, I think it warrants going before the committee to at least have a discussion there so we can hear from the different witnesses who come forward, specific groups that are involved in human rights, and then let us make our decision when it comes before this House at third reading.

Immigration and Refugee Protection Act
Government Orders

10:35 a.m.

NDP

Olivia Chow Trinity—Spadina, ON

Mr. Speaker, I understand that former legislation was struck down by the Supreme Court. If the security certificates process violates civil rights and undermines core values of our justice system, how does the bill in front of us actually deal with that aspect? Where is the accountability?

If someone is alleged to have committed serious crimes, should we not charge him or her? Is deportation not just a way of saying that this is out of sight, out of mind, it is not Canada's problem and let us just get rid of it?

That is not the most accountable way to go forward. How does this bill in front of us deal with the whole process of the justice system? Do we know whether passing this would survive the Supreme Court?

Immigration and Refugee Protection Act
Government Orders

10:35 a.m.

Liberal

Mario Silva Davenport, ON

Mr. Speaker, whether it will meet the test of the courts, specifically the Supreme Court, we still do not know. We need to have that type of information before the committee and this House.

The great thing about our parliamentary system is that we do not adopt laws in one day. It is a slow process and I know the process frustrates some people but there are some beneficial aspects that come out of it. One of them is that we can look at legislation, speak to the different stakeholders out there, the different community groups that have issues of concern, and the legal experts and then make the decisions and, if necessary, amendments at the committee. At the committee stage we have the ability to hear witnesses, make proper amendments and then come before this House for a third vote.

We also have a situation where we have a second chamber in this House. The Senate also plays a major role in terms of looking at legislation and seeing whether it is charter compliant.

Immigration and Refugee Protection Act
Government Orders

10:40 a.m.

NDP

The Deputy Speaker Bill Blaikie

Before resuming debate, I wish to inform the House that because of the ministerial statement, government orders will be extended by 11 minutes.

Immigration and Refugee Protection Act
Government Orders

10:40 a.m.

Liberal

Yasmin Ratansi Don Valley East, ON

Mr. Speaker, I am pleased to speak to Bill C-3, An Act to amend the Immigration and Refugee Protection Act, a bill, which, as my esteemed colleague has said, deals with issues around the security certificate.

As has been mentioned, security certificates do pose a challenge in terms of human rights. The Supreme Court of Canada ruled unanimously on February 23, 2007, that the process of determining the reasonableness of security certificates violated section 7 of the Charter of Rights and Freedoms.

The Supreme Court was very clear. The government does require a mechanism to remove individuals from Canada who pose a threat to national security. However, the system must be reformed and the court had particular concerns with respect to the secrecy of the judicial review system, which prevents individuals from knowing the case against them and, hence, impairs their ability to effectively challenge the government's case.

The Supreme Court agreed that the protection of Canada's national security and related intelligence sources does constitute a pressing and substantial objective, but it is also found that the non-disclosure of evidence at certificate hearings is a significant infringement on the rights of the accused.

In other words, the government must choose a less intrusive alternative, notably the use of special counsel to act on behalf of the named persons, while protecting Canada's national security. The Supreme Court gave Parliament one year to allow Parliament the opportunity to design a legislative remedy that protects Canadians and respects basic charter rights.

Bill C-3 would amend the Immigration and Refugee Protection Act to create a special role, the role of a special advocate. The purpose of the special advocate is to protect a person's interest in proceeding where evidence is heard in absence of the public and of the person or their counsel. This should provide better representation to the person who is detained.

We would like to see the bill be sent to committee as we want to ensure that the role of the special advocate has powers, that it is not just a puppet. Hence, the bill, with its various changes, needs to be sent through for a thorough review.

The bill proposes some changes that are positive. For example, when people are detained under a security certificate, the bill proposes that the people detained must have their detention reviewed by a judge of the Federal Court within 48 hours of the detention beginning. Any person still detained six months after the conclusion of the first review may apply for another review of the reasons for his or her continued detention.

Currently, we have five Muslim men who are subjected to security certificates in Canada. Only one man, Hassan Almrei, , remains at the Kingston Immigration Holding Centre, which has been nicknamed by critics as Guantanamo north.

Mohamed Harkat, Mohammad Mahjoub, and Mahmoud Jaballah have all been released from prison but are under strict house arrest provision, as is Adil Charkaoui who successfully challenged the previous laws as unconstitutional.

The immigration security certificate procedure still allows suspected terrorists, as well as refugees and landed immigrants accused of human rights violation or serious criminality, to be detained and deported from Canada. However, many deportations have been delayed over claims that their lives will be endangered should they return to their country of origin.

Critics of the security certificate process have slammed the current bill saying that it changes little and will likely be back before the Supreme Court before long. Matthew Behrens, the coordinator of the campaign to stop secret trials in Canada, says that the legislation would continue to leave the accused in the dark. He said that it would also allow evidence to be heard that would be considered inadmissible in a court case against a Canadian citizen.

The bill has also faced criticism from the Canadian Council for Refugees, the International Civil Liberties Monitoring Group and the Canadian Arab Federation.

The bill which is before us is similar to current laws in Britain where special advocates attend closed door hearings. The British system has drawn complaints for the special advocates' lack of necessary cooperation and information from intelligence agencies to be effective.

These are some of the concerns and therefore, it is important that the bill be sent to committee for further review before we make any decisions.

The Supreme Court laid out several options it would consider appropriate. Both the House committee and the Senate committee, in reviewing the previous anti-terrorism act, spent considerable time on this very issue and provided very clear recommendations on how to address the void left by the court's decision.

We welcome the decision of the Supreme Court on security certificates and praise the wisdom of the court in providing Parliament with a year to address the issue. We need to ensure that this bill, when it is presented before Parliament, has the right tools, meets the Supreme Court challenges, and the committee will do its due diligence in ensuring that the security certificates do not violate the human rights of Canadian citizens and are mindful of issues.

We live in a world where global terrorism can come to our doors in no time. It is important to protect the security of Canadians; however, we need to ensure that we are in line with the Geneva convention on human rights.

Immigration and Refugee Protection Act
Government Orders

10:45 a.m.

NDP

Chris Charlton Hamilton Mountain, ON

Mr. Speaker, the way I look at this there is no doubt that anyone who plots a terrorist attack in Canada should be tried, convicted and punished, not simply deported to another country though.

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

Security certificates are the wrong way to deal with the threats to our national security. The security certificates process violates civil rights and undermines core values of our justice system. That is why they were struck down by the Supreme Court in the first place.

Security certificates will not make Canadians any safer. That is why we are going to be opposing this legislation. I would ask my colleague across the way, are there not two major problems with the security certificates? First of all, it seems to me that they do not punish those people who are plotting terrorist acts. Security certificates allow for the detention and deportation of those suspected of terrorist activities, but they do not ensure suspected terrorists are charged, prosecuted or jailed for their crimes.

My second question is whether the aspects of the security certificate process, like detention without charge and the inability of the accused to know or examine evidence against them, do not undermine our justice system and our civil liberties.

Immigration and Refugee Protection Act
Government Orders

10:45 a.m.

Liberal

Yasmin Ratansi Don Valley East, ON

Mr. Speaker, I thank the hon. member for her concerns.

The current bill that is being proposed needs to go before committee. It has the role of a special advocate. The special advocate's job is to ensure that he or she is present and that the person who is accused of terrorism or crimes against the country is not left in the dark, that there is a special advocate available to listen and to ensure that that protection takes place.

That is why we are insisting that this bill go to committee. The committee has do its due diligence in ensuring that the recommendations of the Supreme Court are met. The committee must do a thorough analysis.

Immigration and Refugee Protection Act
Government Orders

10:45 a.m.

NDP

Bill Siksay Burnaby—Douglas, BC

Mr. Speaker, I want to put a question to the hon. member about the special advocate process, because unfortunately, I tend to believe that the provisions for a special advocate that have been introduced in Bill C-3 amount to tinkering with a very fundamentally flawed bill.

Certainly the provisions that we do have in the legislation seem to be modelled on the system in Britain. In the United Kingdom a number of special advocates have withdrawn from that process because they believe that it was too significant a compromise to the principles of basic fairness in the criminal justice system there. In fact, just recently the joint human rights committee of the British parliament said that the special advocate process was Kafkaesque and amounted to a star chamber. Those are very serious criticisms of that system.

A former special advocate, Ian Macdonald, said that what he was doing as a special advocate was adding a fig leaf of respectability to a very odious process and he resigned because of that.

Given those very significant criticisms of the special advocate process that the government seems to have adopted in this legislation, why would anyone want to support a bad bill, a fundamentally flawed process that compromises basic human rights and compromises our justice system in Canada?