Bill C-3 (Historical)

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

This enactment amends the Immigration and Refugee Protection Act to add provisions relating to a special advocate to Division 9 of Part 1 of that Act. The special advocate’s role is to protect a person’s interests in certain proceedings when evidence is heard in the absence of the public and of the person and their counsel. The special advocate may challenge the claim made by the Minister of Public Safety and Emergency Preparedness to the confidentiality of evidence as well as the relevance, reliability, sufficiency and weight of the evidence and may make submissions, cross-examine witnesses and, with the judge’s authorization, exercise any other powers necessary to protect the person’s interests.
The enactment eliminates the suspension of consideration of the reasonableness of a security certificate that occurs when the person named in it makes an application for protection.
The enactment also provides that, when a person is detained under the security certificate regime, a judge of the Federal Court must commence a review of the detention within 48 hours after the detention begins and then, until it is determined whether a certificate is reasonable, at least once in the six-month period following the conclusion of each preceding review. A person who continues to be detained after a certificate is determined to be reasonable and a person who is released under conditions may apply to the Court for a review of the reasons for their continued detention or for continuing the conditions if a period of six months has expired since the conclusion of the preceding review.
The enactment permits the appeal of a determination whether a security certificate is reasonable and of a decision resulting from a review of a person’s detention or release under conditions to the Federal Court of Appeal if the judge certifies that a serious question of general importance is involved.
It also permits a peace officer to arrest and detain a person who is subject to a security certificate if the officer has reasonable grounds to believe that the person has contravened or is about to contravene their conditions of release.
The enactment enables the Minister to apply for the non-disclosure of confidential information during a judicial review of a decision made under the Act and gives the judge discretion to appoint a special advocate to protect the interests of the person concerned.
It also contains transitional provisions and makes a consequential amendment to the Canada Evidence Act.

Immigration and Refugee Protection Act

[Gordon O'Connor, Conservative, Carleton—Mississippi Mills, ON]

moved 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.

[Dave MacKenzie, Conservative, 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.

[The Acting Speaker, Conservative, 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.

The House resumed from October 26 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.

[The Acting Speaker, Conservative, Royal Galipeau]

When we last studied Bill C-3, there were four minutes left to the hon. the Parliamentary Secretary to the Minister of Public Safety. The parliamentary secretary has the floor.

[Dave MacKenzie, Conservative, Parliamentary Secretary to the Minister of Public Safety]

Mr. Speaker, thank you for the opportunity to conclude my remarks on Bill C-3. As I stated previously, Bill C-3 is a crucial piece of legislation that will enable this government to fulfill our obligation and responsibility to safeguard Canadians from people seeking to come to Canada and who would pose a grave threat to our nation. It also gives thoughtful deliberation to the Supreme Court's concerns and takes into consideration the recommendations made by both the House of Commons and the Senate committees reviewing the Anti-terrorism Act.

Some people come to Canada and pose a grave threat to our nation. A small minority yes, but a group that we must address. Some of them have committed serious crimes abroad and have affiliations to terrorist organizations. Their intentions in coming to Canada may not be innocent. They may be here to continue committing these crimes or to recruit others to their cause. Canada cannot become a safe haven for these people.

In the past 20 years, security certificates have been issued 28 times against non-Canadians accused of being terrorists, extremists and spies. Security certificates are a vital national security tool. The most recent security certificate was for espionage and the threat to Canadians was eliminated when that individual returned to his country of origin.

Let me again stress this very important aspect of the security certificate process. It is not about detention, but rather about removing non-Canadian citizens from Canada because they represent threats to public safety and national security. These individuals are inadmissible under our immigration law.

Bill C-3 is part of the government's overall national security and public safety efforts. It will continue to prevent inadmissible persons from remaining in Canada while ensuring that the rights of persons subject to a security certificate are appropriately protected as they must be.

We are privileged to live in a country where values of freedom, democracy, human rights and the rule of law are held in the highest regard. When we are made aware of a situation where these values have been compromised, our government takes action. This is why we were pleased to receive the Supreme Court of Canada's ruling on this matter and to implement this bill to address the ruling of the court.

The Supreme Court has given the government an opportunity to amend the legislation, but has set February 23, 2008 as the deadline. Let me be clear on this point. If we do not pass this bill by February 2008, all current security certificates would be quashed. The certificate process could no longer be used to detain these individuals or impose conditions of release. Nor could it form the basis for their inadmissibility to Canada. This would pose a serious threat to the safety of the Canadian public and the security of Canada.

This means that all existing security certificates would begin afresh and would be referred back to the ministers for their consideration. If a new certificate is signed, the cases will be referred again to the court for a determination on the reasonableness of this certificate.

The passage of Bill C-3 is essential to the continued operation and use of the security certificate process contained within the Immigration and Refugee Protection Act. We want to continue to encourage people from around the world to move to Canada. We want to attract those who will contribute to the diverse social fabric of our land and we want to shelter those who have seen the worst that the world has to offer, and give them a renewed sense of hope and beginning. But our highest priority is the protection of Canadians. It is our duty to both Canadians and the international community to stop dangerous people from committing crimes or terrorism.

In doing so we must continue to demonstrate clearly Canadian values of justice, fairness and the respect of human rights. With this bill we can better achieve these goals. I urge all members of this House to support Bill C-3.

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

Mr. Speaker, in the Charkaoui case, the Supreme Court suggested a number of amendments to the procedure for issuing the deportation order made necessary by security certificates. This becomes a committal order when the person cannot be deported to another country. This is currently the case with those who have been imprisoned for a long time under security certificates in Canada.

The Supreme Court wanted to leave something up to the legislators, to discourage them from always turning to the Supreme Court for a ruling on whether or not laws are constitutional. On a number of occasions in recent years, the court made it clear that it was a little tired of Parliament never taking responsibility and leaving the difficult decisions up to the court. This time it has left us with a difficult decision. And it said that we were required to review this decision every six months.

How long will we review these decisions, in the event that we cannot deport an individual to another country without endangering his life or likely subjecting him to torture? Why have we not answered the question put to us by the court?

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, Bill C-3 deals with the two issues that the Supreme Court addressed that needed to be changed in the Supreme Court's decision. Those issues are the review of the security certificates and the role of the special advocate.

That is what this bill is about. It is not about any broader areas. The Supreme Court has ruled that the process is a reasonable one that fits within our charter. Bill C-3 deals specifically with the two issues that the Supreme Court addressed and referred back to Parliament.

[Dawn Black, NDP, New Westminster—Coquitlam, BC]

Mr. Speaker, we have several concerns with Bill C-3. We believe that anyone who plots a terrorist attack in Canada should actually be tried, convicted and punished here within Canada, not simply deported somewhere else.

Parts of the bill are controversial. The whole process of security certificates includes secret hearings, detention without charge or conviction, detention without knowing what the charges are and not being told what the evidence is against a person. There is indefinite detention and lack of an appeal process.

When the previous bill was deemed unconstitutional, the government brought in a change to allow for a special advocate. That process has been tried in a couple of other countries and it has not been successful. In fact, a very prominent special advocate in the UK, with seven years of experience in this matter, has quit in protest over the inadequacy of the process.

I want to ask the government member how he feels the special advocate will address and bring an element of fairness to the system that has been found in the UK not to have worked?

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, the hon. member has made many allegations, some of which have really nothing to do with what is before the House today.

I would hope for clarification that the hon. member understands that this is not about people who are charged in Canada with crimes committed in Canada. This is really about people who are not eligible to be in Canada and for crimes that may or may not have been committed in other places. They may belong to terrorist organizations. It is not about committing crime in Canada.

The areas that we have addressed in Bill C-3 are the ones that the Supreme Court has identified that it felt needed to be changed by Parliament. Those amendments have been brought forth. I think the amendments are appropriate given the circumstances of what the bill is and the intent of the legislation.

I think when the member talks about a special advocate that a number of countries have a special advocate process. They are all somewhat different, but the process we have brought forward here we think is appropriate for Canada's needs and for Canadians, with the idea that it is important that we keep Canada safe.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Mr. Speaker, the hon. member has obviously explained the legislation. I have one question. The hon. member may have looked at all the recommendations of different committees, both the Senate and the House, as well as the UK committee. I believe the UK committee was a joint committee on justice. It expressed certain concerns about the special advocate system that is now being imported into our system.

Can the member tell us what particular recommendations of the various Senate and House committees from our jurisdiction the government has been able to embrace in the legislation and which ones it has not and why?

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, the member's question is an excellent one. What I can tell him is that the government side has looked at all the recommendations dealing with the special advocate from the public safety committee and I believe there was perhaps one recommendation from the immigration committee.

We have attempted to bring what we consider to be the best of all those forward to meet the needs of Canada and Canadians. I know I said previously there are special advocates in many other countries around the world. All of them are somewhat different and unique to what they consider their needs. I think the most current and appropriate needs for Canada are being met with this process.

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

Mr. Speaker, I would like to know—as would you too probably—what support the government has in mind for those special advocates. There is nothing in this bill concerning the secretarial or other support services that they may need if they are to examine the reports, which are voluminous, as you know, and can, in some cases, run to a thousand pages.

How is it that the government's bill contains nothing regarding the support that should be provided to these advocates, if the measure comes into effect?

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, it is essential that these do come into place, otherwise we have lost the whole provision of detention for people who do represent some sort of serious threat to Canada, whether it be terrorism or industrial espionage, as was the last case. I think it would be incumbent upon members of this House to quickly pass this legislation, so that it is not lost at a date set by the Supreme Court early in 2008.

If the member looks at the Supreme Court ruling and what is in this legislation, he will find that in fact all those issues would be taken care of, not that it will be defined to the nth degree in any legislation, as it never is, but this is appropriate to Canada and Canada's needs. The important part is the safety and security of Canadians whether it be, as I said, either terrorism or industrial espionage. So, it is important we pass this legislation quickly.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Mr. Speaker, obviously this is a bill that has been crafted by the government in response to the Charkaoui decision of the Supreme Court, where the Supreme Court ruled that the non-disclosure of evidence impaired the rights of the individual beyond the level of acceptability. Therefore, that provision was suspended by the Supreme Court until February 2008. The Supreme Court also addressed the differential treatment of the non-residents of Canada and permanent residents of Canada, and dealt with the issue of indefinite detention. This was a very important decision.

These provisions are very important. There is no question that for the safety and security of Canadians, sometimes a society like ours needs to deal with people who may come from other places and may have a history of which we may or may not be aware. At some point the state becomes aware, and we want to protect our society from violence and the like. Therefore, these provisions are important. The instructions that the Supreme Court also provided were very important. The bill in a very basic fashion deals with the concern expressed by the Supreme Court. I want to go over three or four elements of the Supreme Court's decision.

The Supreme Court looked at the various systems in place in Canada and in other parts of the world and came to the conclusion that we needed to change these provisions and that we could take any one of the systems or devise a system to provide some significant disclosure to the individual before the court. The government in this bill has imported, essentially holus-bolus, the concept of special advocate from the United Kingdom, which, I must add, has been the subject of some criticism by a joint committee of the Lords and Commons in the U.K. itself.

It is worth looking at in that light, because it might tell us that what the government has presented basically meets the concerns expressed by the Supreme Court, but does not deal with some of the other concerns. Let me say at the outset that we will support this bill at this stage so that it goes to committee, but while in the committee, I think that some amendments might improve this bill to make it better than it is.

The Supreme Court, in coming to its conclusion in the Charkaoui case, looked at the Security Intelligence Review Committee, SIRC as it is called in Canada, our own committee. The court looked at it favourably and said that the system that SIRC had devised in dealing with disclosure, and SIRC had full disclosure, and in dealing with the rights of the individual before it, served the natural justice interests of the individual before SIRC as well as maintained the confidentiality of the information.

SIRC has been in operation for many years. The experience in dealing with these very serious issues has been that there has never been a case of inadvertent disclosure of sensitive information either to the individual or to the outside world. This was one of the better approaches the government could have taken. Our homegrown system of SIRC could have been imported into a security certificate process, but the government did not go for that. Instead it went for the United Kingdom's special advocate system.

The Supreme Court then looked at the Canada Evidence Act procedure. Under the act a participant in a proceeding who is required to disclose or expects to disclose potentially sensitive information must notify the Attorney General of Canada about the potential disclosure. The Attorney General then may apply to the Federal Court for an order prohibiting that disclosure in total or in part. That process has something to commend itself.

The court looked at the Arar inquiry where there had been amicus curiae appointed on confidentiality applications and there was a scheme in place where the information was vetted and dealt with appropriately.

The court looked at the United Kingdom immigration commission system and the special advocate system. In this bill the government has imported some elements of that system. Unfortunately that system itself has come under a great deal of scrutiny and criticism by the various committees and experts in the U.K. as well as some special advocates in the U.K. In particular the House of Commons and House of Lords Joint Committee on Human Rights in its recent report in July of this year severely criticized the system.

Be that as it may, we have our own reports from the House and the Senate on some of these issues. While undertaking a mandated review of the Anti-Terrorism Act the committees pronounced on the security certificates as well. Both the House committee and the Senate committee found that there is a need for some form of adversarial challenge to governmental claims that secrecy is necessary and to the secret intelligence that is presented to the judge reviewing the security certificate. Both committees concluded that the affected party should be entitled to select a special advocate from a roster of security cleared counsel. One of the reports, I believe, proposed a panel of special counsel funded by, but independent of, the government.

Several other recommendations were made by the committees. They include, for instance, a proposal for amendments to ensure that the information that may be the product of torture not be admissible in the proceedings, that there be faster time lines for review of the detention of a foreign national being held under a security certificate, and that there be a right of appeal to the Federal Court of Appeal following the decision of reasonableness by the Federal Court judge.

The three items that I have mentioned have been touched upon and dealt with somewhat, but I might say not satisfactorily, in the bill that is before us today. Let me go through some of my concerns with respect to these issues.

On the issue of full disclosure, the bill provides for some disclosure, not for full disclosure, to the special advocate. There is no mechanism for the special advocate to know whether or not complete information or the complete file has been disclosed to the judge and therefore disclosed to the special advocate. There is no mechanism, and therefore there is no substance, on which the special advocate could go back to the judge to ask for more information because he or she would not know whether or not there is more information.

Whatever information is provided to the judge is then shared, based on the discretion of the judge, with the special advocate. However, the special advocate will not be able to go behind that information, nor would the judge, unless the judge knows that further information exists.

Therefore, while SIRC, the model that we have developed here in Canada and which is still being used, had full disclosure of the entire file, there is no guarantee in this bill that the judge who is sitting on the matter is going to ever have the full and complete file. The judge may, but there is no guarantee in the bill. That is a deficiency in this legislation.

There is the issue of continued access by the special advocate to the interested person. The bill provides that the special advocate will get a summary of the evidence, a digest of the evidence, at which point he or she can speak to the affected individual and then have full disclosure from the judge with respect to all of the material that might be available. Thereafter, the special advocate will not be allowed to communicate with the affected individual without the permission of the judge.

Our experience in SIRC tells us that with special security cleared counsel there has never been an inadvertent disclosure made by anybody to anyone. Our experience also tells us that if there is a process in place to properly security clear the special advocates, they ought to be given some leeway without necessarily having to apply to the judge every time they want to talk to the affected individual.

There is a provision in place for the special advocate to seek permission to further communicate with the individual, but by the very nature of the fact that one has to apply to the judge, it is a rather constrained and very limiting situation. That should be looked at, if at all possible. If there is a way to remedy and rectify that in the bill once it goes to committee, all parties should look at it. Ultimately the aim of all parliamentarians ought to be that we as a democratic and free country are able to provide the best designed system to deal with even the most difficult cases, such as the ones that come before these kinds of tribunals.

There is also the very real issue of the selection and support of special advocates. The bill is silent about how these special advocates are to be selected. There ought to be enshrined in the bill a system which guarantees a selection process for the special advocate or panel of special advocates which is independent and arm's length from the government. There are no such provisions in the bill.

There should also be enshrined in the bill a fund provided by, but independent of, the government that would fund the special advocates. This is so that the special advocates would not feel that they are acting at the behest of the government or ought to be somewhat concerned about what the government thinks because they are selected by the participation of the government in the first place, or they may have to be paid by the government from time to time. We need to put the selection process in the legislation at arm's length and independent of the government, perhaps with the participation of the Canadian bar and other NGOs, as well as a representative of the judiciary. That is important.

It is also important that we provide for an independent fund to be drawn on by the special advocates from time to time. It should be set up by the government but should be independent of the government.

Next, I believe it is important that the affected individual or individuals ought to be able to choose the special advocate of their liking out of the roster of security cleared individuals. I do not believe the judge ought to have a role in appointing the special advocate. There is some lack of clarity in the legislation.

I do not believe that anybody else ought to have the right to impose a particular special advocate on the affected individual who is before the judge. If the individual chooses not to exercise that right of choice in this situation, as happens before the courts normally, the court would appoint a special advocate from the roster. However, it should be clearly spelled out in the legislation that the affected individual has the right of choice of the special advocate from the pre-selected roster of special advocates.

This is a very important principle of our justice system where individuals are given a roster, although they have a limited choice. At least within that limited circumstance, they ought have the freedom to pick X or choose Y rather than having to be stuck with A or B because the judge or someone else might think so. That is very important.

I believe the relationship of the special advocate with the interested person is also very important. We recognize that we cannot have a special advocate in the relationship of solicitor-client with the affected individual, for obvious reasons. However, at the same time we ought to also protect the special advocate, in that he or she ought not owe a duty of confidentiality or a duty of disclosure to the government.

We recognize that a special advocate is not in a position of solicitor-client relationship. We do not want the special advocate to be in a position to have to disclose information that he or she could not disclose to the affected individual. However, we should also have a guarantee that the special advocate is not in a position to have to answer to the government and disclose information that he or she may have gathered from the affected individual in the communications he or she may have with that individual. This guarantee should work both ways. It is important to protect that right to silence, in a sense, of the affected individual, either directly or indirectly.

Finally, I come to the issue of torture evidence. We have in the bill a reference to the reliable or proper evidence, if I remember the words correctly and I will stand corrected. This is the kind of evidence the judge ought to accept for these kinds of hearings. There is no express bar against the use of evidence that is the product of torture or that may be the product of torture. I believe we can do better than what is in the bill.

One thing we can do is have an express bar against using the product of torture, evidence that may have been obtained by the use of torture anywhere in the world. We want to ensure we have a system of justice that is the envy of everyone in the world and we cannot claim that if we do not expressly bar the product of torture. We may indirectly do so by using the words such as “reliable” and “proper” evidence, but clearly evidence received pursuant to torture is improper, in my humble view, and ought never be used in these kinds of hearings where there is no guarantee of full disclosure even to the affected individual.

I recognize these are individuals whom we do not want on our soil. We may be threatened by them. We may be worried about our safety and that is why we are doing what we are to them. However, we have an obligation, based on the principles of justice in our country, to ensure that we do not fall into the kinds of traps other nations fall into where evidence received pursuant to—