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

This bill was last introduced in the 39th Parliament, 2nd Session, which ended in September 2008.

Sponsor

Stockwell Day  Conservative

Status

This bill has received Royal Assent and is now law.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Immigration and Refugee Protection Act to add provisions relating to a special advocate to Division 9 of Part 1 of that Act. The special advocate’s role is to protect a person’s interests in certain proceedings when evidence is heard in the absence of the public and of the person and their counsel. The special advocate may challenge the claim made by the Minister of Public Safety and Emergency Preparedness to the confidentiality of evidence as well as the relevance, reliability, sufficiency and weight of the evidence and may make submissions, cross-examine witnesses and, with the judge’s authorization, exercise any other powers necessary to protect the person’s interests.

The enactment eliminates the suspension of consideration of the reasonableness of a security certificate that occurs when the person named in it makes an application for protection.

The enactment also provides that, when a person is detained under the security certificate regime, a judge of the Federal Court must commence a review of the detention within 48 hours after the detention begins and then, until it is determined whether a certificate is reasonable, at least once in the six-month period following the conclusion of each preceding review. A person who continues to be detained after a certificate is determined to be reasonable and a person who is released under conditions may apply to the Court for a review of the reasons for their continued detention or for continuing the conditions if a period of six months has expired since the conclusion of the preceding review.

The enactment permits the appeal of a determination whether a security certificate is reasonable and of a decision resulting from a review of a person’s detention or release under conditions to the Federal Court of Appeal if the judge certifies that a serious question of general importance is involved.

It also permits a peace officer to arrest and detain a person who is subject to a security certificate if the officer has reasonable grounds to believe that the person has contravened or is about to contravene their conditions of release.

The enactment enables the Minister to apply for the non-disclosure of confidential information during a judicial review of a decision made under the Act and gives the judge discretion to appoint a special advocate to protect the interests of the person concerned.

It also contains transitional provisions and makes a consequential amendment to the Canada Evidence Act.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Votes

Feb. 6, 2008 Passed That the Bill be now read a third time and do pass.
Feb. 6, 2008 Passed That this question be now put.
Feb. 4, 2008 Passed That Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, as amended, be concurred in at report stage.
Feb. 4, 2008 Failed That Bill C-3 be amended by deleting Clause 1.
Nov. 20, 2007 Passed That the Bill be now read a second time and referred to the Standing Committee on Public Safety and National Security.

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 5:50 p.m.
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NDP

Judy Wasylycia-Leis NDP Winnipeg North, MB

Mr. Speaker, I want to tell the member for Charlottetown that, quite frankly, we are shocked that the Liberals are prepared to support a bill like this on a wing and a prayer. What the member has just said in response to a question is that he is concerned about elements that are not part of this bill, but he is quite prepared to hope and pray that somehow goodness will prevail on this bill which has very serious flaws, without due regard for serious long term implications and ramifications for individual rights and freedoms, about which I thought the Liberals at one point felt fairly strongly. They were proud of their record with respect to the Charter of Rights.

I want to raise a few concerns about this bill and ask the member why he would support a bill that is so flawed. Perhaps he could give us some reassurance that we have missed something in the bill that addresses those concerns.

I acknowledge that the NDP is the only party in the House right now opposing Bill C-3. That does not mean that we are wrong and the rest of the House is right. There have been many occasions when three parties, the Conservatives, the Liberals and the Bloc, stood together on an issue and supported a position that was wrong. In this case, we are dealing with a similar situation, where in haste we are proceeding with a bill that is flawed and we are not thinking about the long term ramifications.

I understand that the Liberals brought this bill forward in the first place and did so in the heat of the moment after 9/11 when the government was so quick to come up with fast solutions without thinking through how they would affect other elements of our society. Now that they are in opposition, one would have thought the Liberals would be thinking very seriously about whether this is the right way to go, especially given the Supreme Court ruling and the concerns raised by numerous organizations at the committee hearings around this bill.

It has to be pointed out that Bill C-3 does not make Canadians any more secure, but it does undermine some very fundamental freedoms. That is why we are opposing this bill. These security certificates mean that people are going to be accused and deported without knowing the facts or without having the details presented to them. We do not believe that will address the fundamental issue of protecting Canadians in times of terrorism, but it will trample on rights and freedoms.

We do not believe that security certificates will deal with the very serious threat that we all acknowledge is around us. What we need is a government that is committed to putting in place proper border security services, proper training and education for our RCMP, proper information so that we can all be prepared to do our bit. To take a bill and trample on rights--

Immigration and Refugee Protection ActGovernment Orders

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

Shawn Murphy Liberal Charlottetown, PE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Immigration and Refugee Protection ActGovernment Orders

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

Steven Blaney Conservative Lévis—Bellechasse, QC

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

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

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

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

Immigration and Refugee Protection ActGovernment Orders

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

Judy Wasylycia-Leis NDP Winnipeg North, MB

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

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

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

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

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

Immigration and Refugee Protection ActGovernment Orders

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

Wayne Marston NDP Hamilton East—Stoney Creek, ON

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Immigration and Refugee Protection ActGovernment Orders

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

Lui Temelkovski Liberal Oak Ridges—Markham, ON

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

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

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

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

Immigration and Refugee Protection ActGovernment Orders

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

Pat Martin NDP Winnipeg Centre, MB

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

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

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

Immigration and Refugee Protection ActGovernment Orders

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

Claude Bachand Bloc Saint-Jean, QC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you for your attention. I will take questions.

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 4:45 p.m.
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Liberal

Judy Sgro Liberal York West, ON

Mr. Speaker, police in our major cities have a huge responsibility to do the right thing when they are dealing with crime and various other activities. When they have concerns about a particular group of people, they often will spend up to 18 months working on that group. Just because people are affiliated with a group, it does not mean they are necessarily part of that group or that they are terrorists.

The police have a difficult job. We have a difficult job. It is a question of finding balance and respecting an individual's rights.

Some of those people were detained and subsequently released, but I think that once people have been detained and have had that label put on them, it is very difficult to have it removed. I think that stigma would be with them forever. I think it is always a question of being cautious before laying charges and of making sure we have all the information we need.

As for Bill C-3, at committee we will have a chance to find out what we are talking about as far as reasons for detaining someone and taking away his or her liberties are concerned. Maybe we need to specify more clearly the reasons why someone should be detained. These are the kinds of things that we can talk about at committee to make sure that this legislation is vented properly and that it achieves what we want it to achieve, which is to ensure that we are all fighting terrorism together, that Canada remains a safe place, and that we are doing our part in the fight against terrorism around the world.

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 4:40 p.m.
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NDP

Pat Martin NDP Winnipeg Centre, MB

Mr. Speaker, I notice that in Bill C-3, one of the compromises, I suppose we could say, made by the Conservative government when it introduced the bill is that there will be special advocates as part of the security certificate process. It claims this will be enough to ensure that someone is representing the rights and the concerns of the accused and that at least the special advocate will be told the nature of the charges and why the person is being detained.

However, my colleague from Burnaby—Douglas points out that in the U.K. and New Zealand, where they do have special advocates for people being held, that it has been woefully inadequate. In the U.K., a special advocate in fact has resigned in protest recently, citing that he felt that his office was being used as an excuse to detain people unfairly. In other words, the special advocate did start advocating on behalf of the people detained and resigned.

Does the party of the hon. member agree that the special advocate is not an adequate compromise to ensure the rights of the detainees are being represented?

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 4:40 p.m.
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Liberal

Judy Sgro Liberal York West, ON

Mr. Speaker, I know my colleague has a huge amount of interest in this issue. To answer his question, it will be difficult. There is a very short timeline. Possibly, parliamentarians will have to work over January if we are to meet that February 2008 date. However, I suspect it will not be the first time we have not met a date requirement and we will have to ask for an extension.

We should remember that while we are moving forward in all of this, many people around the world are watching Canada and how we will deal with the legislation. Will we make sure it is respectful of human rights, respectful of the charter and respectful of all of the things that matter so much to us as Canadians?

Listening to the concerns of my colleague from Burnaby, and I am sure there are concerns on all sides of the House, we are uncomfortable with the previous legislation. We are probably still uncomfortable with Bill C-3, while recognizing that fighting terrorism is something we all have to do. The government has to have the tools necessary to take whatever action is necessary to ensure we are safe as a country and that we are working with other countries around the world to prevent the continuation of terrorism.

It is critically important that we get the bill to committee. We hope this week it will go through and the committee can start work next week. Knowing the way parliamentarians feel, I expect they will put a lot of hours into looking at this on all sides of the discussions and arguments that no doubt will be there on behalf of many individuals.

Where we are going with it is an improvement to the process. A special advocate will be a good approach. We need to get the bill to committee, work on it, and get it back into the House to be approved. The sooner we do that the better for Canada.

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 4:30 p.m.
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Liberal

Judy Sgro Liberal York West, ON

Mr. Speaker, I am pleased to have the opportunity today to speak to Bill C-3, clearly a piece of legislation that is extremely important to all of us as parliamentarians but also very important for Canada.

It is an act to amend the Immigration and Refugee Protection Act, certificates and special advocates. Listening to my colleague from Burnaby and knowing how passionately he feels about this, I recognize and recall from some time past his opposition to these kinds of things. I must say I applaud his commitment but look at it from a very different point of view.

This bill that is before us will amend the Immigration and Refugee Protection Act to create the role of special advocate.

The very core role of the special advocate would be to protect the interests of the subject of a security certificate by challenging the public safety minister's claim to the confidentiality of information, as well as its relevance and the weight of the evidence, something that is important. We have been clearly pointing out that there were areas in the previous legislation that needed to be improved and this is a good beginning.

The special advocate may also make written and oral submissions to the court and cross-examine government witnesses. These responsibilities would have to be performed within closed court proceedings. It is quite similar to the British system, as my colleague from Burnaby pointed out.

The special advocate's responsibility though is to protect individuals interests in proceedings where evidence is heard in the absence of the public, and of the persons and their counsel. Clearly, these are areas of new jurisdiction for our country, but areas that have been necessary for us to go to make sure that Canadians in Canada are protected.

The bill also provides that any individuals detained under the certificate regime must have their detention reviewed by a judge of the Federal Court within 48 hours of the detention beginning. That is also a very important aspect of the legislation, to ensure that the adequate evidence is also there, and people are not just randomly held, as some people would like us to believe.

Any persons who are still detained six months after the conclusion of the first review may apply for another review of the very reasons for their continued detention. It is another avenue where it is not just a closed door. They will have an opportunity to provide evidence and to defend themselves.

The bill permits a challenge to the Federal Court of Appeal of reasonableness, and I think that is a key word throughout this legislation, of a security certificate, or the results of a review of a person's detention, or the release, should that happen, under conditions.

Again, as my colleague from Burnaby pointed out, some of those conditions may not be the best, but we are always having to keep in mind the safety of our country and security of Canadians, providing the appeal judge certifies that a serious question of general importance is involved.

It also permits a peace officer to arrest and detain persons who are subject to a security certificate if the officer has reasonable grounds to believe that the persons have contravened or are about to contravene their conditions of release. That is a very important part of this legislation as well because people will be given the opportunity, under certain conditions, to have a degree of freedom, but if for some reason or another a police officer or someone else has reason to believe that they may flee, then they may need take whatever steps are necessary to ensure that the individuals in question are where they needed to be.

Bill C-3 also 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.

Just to give some background to the many Canadians who are watching this debate, or we would like to think are watching this debate, the Supreme Court of Canada ruled unanimously on February 23 that the process for determining the reasonableness of security certificates violates section 7 of the Charter of Rights and Freedoms, hence the reason that we are currently dealing with this legislation.

I always believe that the more time we take to review something the better the legislation will come out and clearly the Supreme Court has point out some areas that needed to be looked at and reviewed. I believe, at the end of the day, it will only make it that much better, that much stronger, and that much more effective piece of legislation.

We also know that none of us want to see innocent people have their rights abused in Canada. I think that by the time the committee finishes studying the legislation, when it comes back to the House, it will be that much more effective, keeping in mind some of the comments that some of my colleagues have raised about their concerns about abuse of the process.

The Supreme Court was quite clear. The government does require a mechanism to remove individuals from Canada who pose a threat to national security. That clearly was a large part of that legislation that was introduced initially, that there did need to be some sort of mechanism so that people could be removed. I believe Canadians want that ability to do that.

However, the system as it is currently must be reformed. The court had particular concerns with respect to 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.

I think we can say that it was not just the court that had concerns about that particular area of it. It certainly goes against a lot of things that we believe in in Canada and keeping the secrecy issue is a very difficult thing.

It is all about a balance of being able to protect our country and to respect our security issues. At the same time we cannot disregard the fact that we have a charter in our country and we have human rights that we respect. We want to make sure that things are done properly and that we do not have to hide in shame because we did not do something properly when it comes to something as important as international or security issues.

We on this side of the House, as the official opposition, welcomed the decision of the Supreme Court on the security certificates in February which provided Parliament a year to address the issue. That year will soon be up and it is only now starting to be dealt with.

It is very unfortunate that the government took so long to come forward with replacement legislation that Parliament now may be rushed to ensure that legislation is in place before the one year timeline expires in February 2008. Add on to that, this is an important piece of legislation. We dealt with it before under strenuous difficult times. It is important that we do this right and that we make sure that we are going to maintain the safety our country, as well as not abusing human rights and stepping on other people's rights.

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 also found that the non-disclosure of evidence at certificate hearings is a significant infringement on the rights of the accused. I believe most Canadians and most of us as parliamentarians will have to admit that we had some concerns in that very area. Finding the right balance is the challenge.

In other words, the government must choose a less intrusive alternative, notably the use of a special advocate to act on behalf of the named persons while still protecting Canada's national security. I go back to the issue of a balance and how that important that balance is for all of us.

The immigration security certificate procedure still allows suspected terrorists as well as refugees and landed immigrants accused of human rights violations or serious criminality to be detained and deported from Canada. The safety of Canadians and Canada is a priority I know for all of us as parliamentarians.

The Liberal party will support the bill at second reading, voting in favour of sending the bill to committee for an in-depth study. We will take the time to study the new bill, to make the necessary improvements at the committee stage, and hopefully we will still be able to not be too far off from the timeline that we have been given to get this done.

It will mean a lot of work by a lot of parliamentarians in the House very quickly in order to ensure that we are following all of the obligations that Canada has when it comes to fighting terrorism. It is something that is extremely important for all of us and we want to ensure that we have covered all the bases that are necessary.

We do not want to have legislation that does not meet all of the requirements and that again would be challenged in the Supreme Court and possibly struck down. I think as we move forward to committee now many of us will work on this legislation to ensure that there is that balance that all Canadians will want to see.

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 3:55 p.m.
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NDP

Bill Siksay NDP Burnaby—Douglas, BC

Mr. Speaker, I am glad to have this opportunity this afternoon to debate 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.

I want to make it very clear from the beginning that I am strongly opposed to this legislation and to the security certificate process itself. I believe that the process of security certificates should be repealed and abolished. It is a position I have taken since I have come to this place. I actually have a motion on the order paper calling for the repeal of those sections of the Immigration and Refugee Protection Act pertaining to the security certificate process.

The bill represents nothing more than a tinkering with a process that is fundamentally flawed and which has been found unconstitutional by the Supreme Court of Canada.

The security certificate process is part of Canada's Immigration and Refugee Protection Act, IRPA. It is intended to be an expedited deportation process to remove non-citizens, permanent residents, and visitors to Canada who are accused of serious criminal activities related to espionage, national security, terrorism and organized crime.

However, this is not how this legislation is being used. It is being used in serious ways not contemplated by its inclusion in the Immigration and Refugee Protection Act. This section is being used to circumvent our criminal justice system. It is being used to detain individuals without trial and without conviction and to detain them indefinitely. It is being used to deport people who may face torture or the death penalty in other countries. It is being used to circumvent the rules of evidence and to allow for the use of secret evidence, thereby denying a fair hearing. It is also being used to deny accused individuals the right to know the evidence against them and mount a defence in court.

These are all serious issues and ones that go to the fundamental questions of how our justice system operates in this country. They are, in fact, all issues that we have fought long and hard to establish in a fair and just system. They would not be part of a fair and just legal system in this country. Yet, here we have a piece of legislation that is being used in exactly those ways.

In the first session of this Parliament, the Standing Committee on Citizenship and Immigration studied the security certificate process as part of an undertaking that we made to look at both the use of immigration detention and in particular the security certificate process.

I wrote a minority report entitled “Detention Centers and Security Certificates” on behalf of the New Democratic Party to the 12th report of the Standing Committee on Citizenship and Immigration. I want to talk about some of the points that I raised in my minority report.

I talked about the fundamental violations of due process and civil liberties that must not be tolerated in a free and democratic society. I said that the security certificate process denies permanent residents and foreign nationals the protection of section 9 of the Charter of Rights and Freedoms that states: “Everyone has the right not to be arbitrarily detained or imprisoned”.

That was a fundamental starting point for my minority report. I believe the security certificate process is a fundamental violation of the Charter of Rights and Freedoms. I believe that was key to why the Supreme Court decided that it was unconstitutional.

In my minority report I also talked about how issues of terrorism, national security, espionage and organized crime should be dealt with through the use of the Criminal Code and not through a lesser immigration process. I said that if there is a problem with the Criminal Code's ability to deal with these types of crimes, then those problems with the Criminal Code should be addressed and fixed. I think this is a central point.

These are serious crimes that we are talking about. These are crimes of terrorism, crimes against the national security of Canada, crimes dealing with organized crime or espionage. These are serious criminal matters. In fact, we might be hard pressed to think of other criminal issues that are more serious than these.

Those are all issues that should be dealt with by the Criminal Code, not by an immigration deportation process. They deserve the most serious attention our justice system can give them. I believe that is through a charge under the Criminal Code of Canada.

I also talked in my minority report about how immigration detention should be used only for immigration purposes and should be of short duration immediately prior to legal deportation for violations of immigration law. If deportation is not possible alternatives to detention must be pursued immediately.

Immigration detention must not be used as a substitute for bringing charges and seeking conviction for serious criminal matters related to terrorism, violations of national security, espionage and organized crime.

I believe that IRPA deals with questions of immigration law and that anything that is included in IRPA should be a process related to immigration law. I firmly believe that when we use IRPA and its provisions to detain people who have been accused of serious crimes related to terrorism, national security, espionage, organized crime, then we are doing an end run around the Criminal Code and using a lesser process that was never intended to seriously address the accusations and allegations related to those specific criminal activities.

A lesser immigration process should not be used for serious criminal issues. I believe that is just plain wrong. Deportation should be related to a violation of immigration law and not serious criminal matters.

That it not to say that a serious criminal matter does not have an influence in deportation issues, but we should never be using the deportation features of the immigration act to deal with a criminal matter in the first instance. That is the way we have been using it in the current situation with the security certificates.

The minority report also said that given the seriousness of crimes related to terrorism, it is imperative that those accused of such crimes be able to mount an effective and full defence. This is not possible in the security certificate context where the accused and their lawyers do not know the evidence against them and are not able to test that evidence in a court of law.

I believe that is an absolutely fundamental criteria of dealing with a fair and just criminal justice system, and to circumvent that and to upset that process goes against a fundamental of our society that we have worked long and hard over many centuries in fact to develop and fine tune. There is no excuse for circumventing those primary components of that criminal justice system.

My minority report also said that Canada must never deport to torture and must be in full compliance with the United Nations conventions against torture and other cruel or inhuman or degrading treatment or punishment. Evidence obtained by torture must never be admissible in a Canadian court or in any legal or immigration process.

Unfortunately, currently in the security certificate process, and I believe in the proposals that are before us, we do not have those assurances. We do not have the ability to test the evidence or the allegations to determine where those allegations came from, where that information was obtained, and how it was obtained. We know that any information obtained by torture is utterly unreliable, that people who are being tortured will say anything to save themselves and that information obtained in that kind of process should never be admissible in any kind of legal process in this country.

We need to make sure that that kind of guarantee is part of any legal process that we are considering. I do not believe that the current legislation or the proposals before us offer us that kind of assurance.

Canada must also ensure, I said in the minority report, that those who plot terrorist activities are tried, convicted and incarcerated, and not merely foisted on another jurisdiction through deportation. I think this is a very serious problem with the security certificate process.

What it says is, “We aren't going to convict you of this serious crime here in Canada. We're just going to try to get you out of the country, get you away from Canada to somehow protect us from you but to foist you on some other jurisdiction, to allow you to go unpunished for what you allegedly conspired here in Canada”. I think that is an absolute derogation of our responsibility as world citizens. It is a derogation of our responsibility to Canadians that people, who participate in such serious criminal activity as terrorists and as threats to national security, go unpunished somehow.

I just think that removing them without ever having charged them or convicted them of those serious crimes is totally counter-intuitive. Why would we allow them to get away with that and get them out of our jurisdiction where they might never be tried or punished for that? If we as a wealthy country do not have the resources to prove these serious allegations, why would we foist that onto another jurisdiction that may not have the resources or abilities that we have in this country to do that? It just does not make sense to do that. That is another reason why I believe that this process is fundamentally flawed.

As part of the minority report that I wrote to the Standing Committee on Citizenship and Immigration report on security certificates, I made some very specific recommendations, and I want to just talk about them as part of this debate.

One of the recommendations I made was that the use of security certificates be abolished and that sections 9 and 76 to 87 of the Immigration and Refugee Protection Act be repealed immediately.

I still fundamentally argue that is the route that we should be going in this country. We should not be using this secondary and lessor process to prosecute very serious criminal matters. If there are problems with our Criminal Code, then we should be addressing those problems and fixing that legislation.

My second recommendation was that evidence obtained by torture and provided by governments or police and intelligence agencies that practise torture should not be admissible in a Canadian court of law, or in any criminal or legal process or hearing, or in any immigration or refugee process or hearing. I think that is an absolutely fundamental requirement.

I have already spoken about how fundamentally unreliable evidence obtained by torture is and how fundamentally immoral it is to even consider condoning information obtained under those kinds of circumstances. Canada should be doing nothing that condones or would allow any other country or any other intelligence-gathering organization to use such tactics against anyone. I believe that any legislation that we debate in this place should make that absolutely clear.

The third recommendation that I made as part of that minority report was that immigration detention must only be used as a short term measure immediately prior to removal related to violations of immigration law. So, again, IRPA should be about immigration law. It should not be about a backdoor to dealing in a very inappropriate way with serious criminal issues, such as terrorism or threats to national security.

As part of my minority report I supported several of the majority recommendations that the committee report did.

One of the recommendations the majority put forward was that charges should be laid under the Criminal Code against permanent residents or foreign nationals who are suspected of participating in, contributing to or facilitating terrorist activities. I think the committee said that a preference should always exist for the use of the Criminal Code. I would go stronger but I did support that recommendation.

Another recommendation that the majority report made was that there should be no removal of permanent residents or foreign nationals to their country of origin or habitual residence if there are reasonable grounds to believe that they would be at risk of torture or death, or face the risk of cruel and unreasonable treatment or punishment. I think that is a very significant one.

We have seen already, just in recent weeks, that the current government may be willing to compromise that longstanding Canadian commitment of not deporting someone to face the death penalty. It may be chipping away at Canada's longstanding opposition to the death penalty in terms of the Canadian who is on death row in the United States and where we are not seeking to have that death penalty commuted. I think that this goes hand in hand with this kind of legislation that we are talking about as well.

Furthermore, there was another majority recommendation that police and intelligence services have appropriate resources to investigate allegations of criminal activities related to security, terrorism, espionage and organized crime, and to pursue appropriate charges under the Criminal Code.

I happen to believe these crimes are so serious that we should have every resource available to our intelligence and police agencies to have an effective prosecution of individuals who have engaged in that kind of activity.

I strongly supported this and proposed, during the discussions in committee, that this needed to be an important feature of the report. There is no excuse for being soft on those kinds of serious crimes. We need to pursue those allegations vigorously, but do it in the context of respect for our criminal justice system and without compromising the criminal justice system.

I should note that a similar minority report on the security certificate process was made by the member for Windsor—Tecumseh, the NDP justice critic, to the report of the Standing Committee on Public Safety and National Security's subcommittee on the review of the Anti-Terrorism Act. The report was entitled, “Rights, Limits, Security: A Comprehensive Review of the Anti-terrorism Act and Related Issues”.

A major feature of the legislation now before us in Bill C-3 is to add a special advocate to the process, a court appointed lawyer who would have access to the evidence and act in the interest of the accused, which is the way this is described. I believe the special advocate process or office is also a flawed process, a flawed institution. We have seen that there have been significant problems with the same kind of process of special advocates in other jurisdictions.

A special advocate from the United Kingdom, Ian Macdonald, has been very outspoken on the problems of the special advocate in that jurisdiction. I want to quote something he said in relation to his role as a special advocate. He stated:

My role has been altered to provide a false legitimacy to indefinite detention without knowledge of the accusations being made and without any kind of criminal charge or trial.

This is a very serious response from someone who has worked inside exactly the kind of system that is contemplated by Bill C-3.

Bill C-3 limits the ability of the special advocate to communicate with the accused about the evidence that he or she has seen. That is a huge flaw. There is an inability to test the evidence, a key aspect of our criminal justice process. There is the serious problem of turning allegations into evidence, which is a key part of a criminal trial in our country as part of our system and is absent in this process, a flaw also in the U.K. that was raised by Mr. Macdonald. It continues to be a flaw in this legislation.

Mr. Macdonald said to a parliamentary committee in the U.K. in 2005:

—you have a whole lot of mass of information and assessments without there ever being any need to make an effort to turn any of that into evidence. I think that has within it an inherent risk that you end up with quite shoddy intelligence and misleading intelligence.

We also need to test information presented in court by cross-examination and the calling of other witnesses, all of which are denied by this process.

In fact, Mr. Macdonald summed up his role as a special advocate by saying that he was called to provide “a fig leaf of respectability and legitimacy to a process which I found odious”. That is a very serious condemnation of that process.

This past July, the U.K. Parliamentary Joint Committee on Human Rights issued a strongly worded report, describing the U.K. special advocate system as “Kafkaesque or like the Star Chamber”, nothing that we would want to emulate in this country.

If the government had been serious about the special advocate process, it would have taken very seriously a report last summer in our country by Lorne Waldman and Craig Forcese on the security certificate process. They made a very detailed set of recommendations about how that process might be used. In fact, they said that the Security Intelligence Review Committee, or SIRC process, might have more to recommend it than the U.K. special advocate process, which the government seems to have emulated.

I do not think the government has made a serious attempt to address the problems of the security certificate process because it did not take the recommendations of Messrs. Waldman and Forcese very seriously when coming up with this legislation.

Six people are still subject to security certificates in Canada. One is incarcerated still at the Kingston Immigration Holding Centre, Hassan Almrei, and five others, Adil Charkaoui, Mohamed Harkat, Mahmoud Jaballah, Mohammad Mahjoub and Manickavasagam Suresh, are all subject to very serious conditions of release related to the security certificate process. In my opinion, for the reasons I have discussed, none of this is justified.

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 3:50 p.m.
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NDP

Bill Siksay NDP Burnaby—Douglas, BC

Mr. Speaker, I want to thank the hon. member for Kitchener—Waterloo for his intervention in this debate. I want to note my respect for his work in protecting the freedoms that are granted to us through the charter. I know that has been a feature of his career in this place. I pay tribute to him for his work on that.

I also want to pay tribute to him for something that he taught me when we were members of the Standing Committee on Citizenship and Immigration, when we were dealing with the proposals around the revocation of citizenship. One thing I learned was that this was an attempt to use a lesser process, a change using the Citizenship Act to go after significant criminal activity. The example that kept coming up was how we needed the possibility of revoking citizenship to get at people who were war criminals, who had misrepresented themselves when they came to Canada and who had committed terrible war crimes, that we needed this option to be able to remove them from Canada.

The hon. member showed me how using that kind of lesser process to get at an incredibly serious criminal issue such as war crimes was inappropriate. If we were going to seriously address the problems created by war criminals, we needed to have war crimes legislation that was effective and could be used to prosecute those people here in Canada, not a lesser possibility under the Citizenship Act. That is exactly what the bill we are currently talking about does. It uses a lesser deportation immigration process to go after the significant criminal issues of terrorism, threats to national security and espionage.

I wonder if the hon. member might comment on that. Does he agree that in Bill C-3 we are using a lesser process to go after a very serious criminal matter?

The House resumed 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.