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

[The Deputy Speaker, NDP, Bill Blaikie]

Pursuant to order made Thursday, January 31, 2008, the House will resume consideration of the motion at third reading of Bill C-3.

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 third time and passed, and of the motion that this question be now put.

[Mario Silva, Liberal, Davenport, ON]

Mr. Speaker, I too share many of my colleague's concerns. I have been doing quite a bit of homework. I have spoken to NGOs, Amnesty International and certain people in the legal profession about this bill and have asked them if they knew of any way we could change it or improve it, or whether it should be rejected.

Much to my surprise, Amnesty International is opposed to the bill but, at the same time, it does not argue that we should get rid of security certificates at hand. Other prominent human rights lawyers, such as Kent Roach from the University of Toronto's faculty of law, have said that Bill C-3 does address the concerns raised in the Charkaoui decision by the Supreme Court in February 2007. I know that legislatures have a very difficult thing at hand because this is, in some way, being rushed by the government. The government had from February until October to introduce the bill before the House.

At the end of the day, this is still a flawed bill and I do not support it because of that. However, there should be some consideration given to the need for security certificates given the fact that we do not live in a perfect world, that there are different objectives at play and that sometimes these objectives can be in conflict with one another, even on issues of civil liberties and on security.

Is it the position of my hon. colleague and her party that security certificates should be eliminated and that we should not have them in this country because it is not the view of organizations such as Amnesty International?

[Denise Savoie, NDP, Victoria, BC]

Mr. Speaker, I am pleased to have the opportunity to speak to 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 we know, this is a bill that would reintroduce security certificate legislation with the provision for special advocates to address the civil liberties issues raised by the Supreme Court.

I am opposed to this bill because I believe it would compromise some of the fundamental principles of our justice system by circumventing due process which is a fundamental right in any democracy.

The Conservatives, supported by the Liberals, are proposing a law that attacks section 9 of the Charter of Rights and Freedoms that states, “Everyone has the right not to be arbitrarily detained or imprisoned”. This section specifies not just Canadians but everyone in Canada and yet this law would deny that right to permanent residents and foreign nationals.

It seems somewhat ironic that we say that we are fighting for democracy in Afghanistan and that we want to help them build a justice system that treats all people fairly at the time when there is slippage of those very principles in our own country.

I believe there are many ways to erode democracy. Corruption in government, for example, erodes democracy, free trade agreements that favour commercial rights of corporations over the rights of their citizens, of which the Conservative government is an ardent proponent of, or laws that disenfranchise groups of voters, as did Bill C-6, for example, introduced by the Conservatives, or indeed, as my colleague has just mentioned, the behaviour in the House which undermines true democratic debate.

Bill C-3 is just another law in that series that undermines the fundamental principles that many have fought for and that are being traded away in a very bad law.

There are two major problems with security certificates. First, as one of my colleagues has mentioned, they do not punish people who are plotting or have committed serious crimes, like terrorist acts or espionage. Security certificates allow for the detention and deportation of those suspected of terrorist activities but do not ensure suspected terrorists are charged, prosecuted or jailed for their crimes.

Because there are very serious consequences facing those named in security certificates, like deportation orders, possible removal and even torture, strong safeguards are required and this legislation does not go far enough in protecting civil liberties.

Canada must take strong measures to protect itself and its citizens against terrorists and spies. These are not nice people and we must take strong measures. However, we must find a better balance between protection against terrorist activities and protection of civil liberties than that offered in this flawed bill. The NDP believes that the Criminal Code is the right tool for the protection of our national security, not the Immigration and Refugee Protection Act.

I listened very carefully to some of the Conservative and Liberal members who have argued today in favour of this law. The member for Vancouver South said that security certificates offered the only effective mechanism, as the evidence may be out of country and we could not get a conviction in a court of law.

I think there is something fundamentally wrong with sending someone away under the cloud of accusation of terrorism without any proof. There is something equally wrong in sending them away so they can continue their criminal activities elsewhere. Why would we allow someone we suspect of terrorist acts to leave the country? How does that improve our global security?

The second flaw in this bill includes secret hearings, detention without charge or conviction, detention without knowing the evidence against someone, indefinite detention and lack of an appeal process. This again undermines the core values of our justice system.

The right of full answer in defence, the right to know the allegations against someone and the opportunity to respond to those allegations is a well recognized aspect of fundamental justice and that right is abrogated under the security certificate process. The detainee may never know the reasons why he or she is being deported. As with the Maher Arar case, we have seen the abuses that can occur.

It is understandable that security may be needed in some cases. I am not a lawyer but I understand that there are very clear provisions within our Criminal Code and the court system for matters of national security for hearing evidence when there is a need to withhold information in the interest of national security. One has to ask why we are rushing to abrogate basic democratic rights.

I believe it was the member for Vancouver South who admitted that this law was flawed but, like most of his Liberal colleagues, he has indicated that he will vote in favour of a bad law. It was an incomprehensible statement Liberal opposition members made in our Parliament that they would support a bad law because we are running out of time, the time having been set by the Supreme Court. I do not know how often I have heard this. It seems very convenient that the government has waited nine months or until the very last minute to reintroduce Bill C-3.

Another argument that has been used by those supporting the bill is that they have improved the security certificate process by introducing special advocates. Special advocates have been used in New Zealand and the United Kingdom and the process in both of those places is seriously flawed and under heavy criticism by many credible people. The United Kingdom keeps being cited by those who support modifying rather than abolishing the security certificate system despite court cases that have ruled against them there.

Given that the United Kingdom Lords of Appeal have ruled against provisions of the process and that Ian Macdonald, QC, a special advocate with over seven years experience, quit over the failure of the government to address the problems with the system, it does not seem to be the ideal solution for Canada to adopt.

The NDP strongly believes that a system that denies the right of answer in defence cannot be corrected by mere procedural tweaking. Even if all civil liberties were protected, security certificates within the Immigration and Refugee Protection Act would still not be the appropriate mechanism for dealing with threats to national security which should be pursued under existing articles of the Criminal Code.

We strongly oppose security certificates because the process is fundamentally flawed and this measure would further diminish democratic rights in Canada.

[Alexa McDonough, NDP, Halifax, NS]

Mr. Speaker, I welcome the intervention by the member for Hamilton East—Stoney Creek on the bill.

I know it is not possible for all members to sit in all committees, no matter how interested and concerned they are about particular legislation. However, I think the member may also be aware that our colleague who sits on the public security committee, the member for Surrey North, has indicated that the overwhelming testimony before that committee was to oppose Bill C-3 in the form in which it was presented.

I agree that some small amendments have made it less odious, less objectionable, but not sufficient for the NDP caucus to support the legislation.

Of the 20 written submissions to the public security committee to deal with this, only 1 recommended support of BillC-3? Of the 17 witnesses who did not have written submissions but nevertheless gave convincing oral submissions, only 1 recommended support of the legislation.

Could the member comment on what that says about being responsible or unresponsive to the informed views of people with considerable scholarly background, legal background, involvement in human rights and civil liberties activities and organizations over a very long period of time?

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Mr. Speaker, over the last few weeks, and in fact today in this House, we have seen some extraordinary things happen.

The House of Commons, in my estimation, should always be a place of debates that enhance and ensure that the expectations of Canadians of their justice system are met and exceeded. This place should always be a home of motions and bills and debates that raise the bar on human rights as well as the rights of citizens. Bill C-3 and its expected outcome would do just the opposite.

However, in this place, the tone of debate on Bill C-3 often mirrors a mediocrity and a nasty tone that one never would expect of parliamentarians present. We hear derisive remarks. We hear catcalls. We heard baiting in the form of the questions put forward on this bill that were they not so amateurish, might well have stood in the 1950s and been used by Senator McCarthy of the U.S.

Parliamentarians must reach to do better. We must move to a place in our debates that illuminates rather than obscures the makeup of any bill. As I said, Canadians expect this of their elected representatives. It is our responsibility to meet that expectation.

When I last spoke on Bill C-3, I advised the House of an occasion last summer when I had visited a Muslim friendship centre in Edmonton. At the centre, I met some new Canadians as well as some more-established Canadians from that Muslim community. Our discussions were wide-ranging and the topic of racism and discrimination came up.

A gentleman who had been in Canada some 30 years spoke up. He was well established. He said he had been contributing to the Edmonton society. From the other people in the room, it was very clear he was a leader who was well respected in his community and the broader community. The gentlemen told the story of how over the ensuing years following the tragic events of 9/11 investigative officers from CSIS would drop by to speak to him. He said that they wanted to know about all the money he was sending to his homeland and the terrorist groups he was supporting. He told them Canada was his homeland, but as a dutiful son, he had sent money home for 30 years to raise the standard of living of his family in his former country.

Some 40 years ago this year, I moved from New Brunswick to Ontario. For me, coming to Ontario, in the 1960s in particular, was something like moving to a new world. However, like the man in Alberta, many good Canadians from our own east coast send money home to their families to help support them back east.

In my opinion, what is happening to us as a country is nothing short of tragic. In my opinion as well, what is happening in the name of national security is an affront to our democratic processes.

As Canada rushed to follow the Americans' approach to, in their words, fight terrorism, we cast aside some of the most fundamental beliefs of Canadians. Just consider Bill C-3 and how it conflicts with the fundamental belief of Canadians that in Canada one has the right to be presumed innocent until proven guilty.

I stand here today speaking on security certificates, and I regret that I am doing this. In our country, once so rightfully proud of our human rights record, our justice system and our positioning in the world, how did we reach this point?

After Bill C-3, Canadians will not be more free. And because of Bill C-3, they certainly should not feel any more secure. I believe, along with the rest of the NDP caucus, that Bill C-3 would continue to fail Canada and to fail Canadians.

The NDP opposes Bill C-3 for the most fundamental of reasons. Repeatedly, we have spoken to the fact that measures in our Criminal Code already give law enforcement the tools they need to deal with crimes against Canada and crimes against Canadians.

Security certificates themselves fail Canadians in a grand fashion. A security certificate does not allow for the presentation of evidence that would support accusations against a person accused or suspected of terrorist activity. Instead, the security certificate simply removes the individual from Canada. In doing so, it fails Canadians.

When an individual is believed to be guilty of an offence against Canada or Canadians, then the Criminal Code must be used to deal with that accusation. A security certificate does not offer, nor support, justice for either the accused or for Canadians. In fact, as I have said repeatedly, security certificates in themselves are an affront to Canada's national sense of justice.

If the accused is guilty, the person should be charged and tried under our Criminal Code and the appropriate penalties applied. Only then, following those penalties being served, should the person be deported. Bill C-3 would allow people to be held in detention without the opportunity to face their accusers or see the evidence against them.

We should consider, for a moment, that people in detention who proclaim their innocence will never have the chance to speak to the evidence in a court of law. If they are allowed to go through our Criminal Code procedures, our courts, our justice system, and were found innocent, they would have had the right to return to a Canadian life, to pick up where they left off, to pick up the pieces.

Under security certificates, many will spend years upon years in detention, and they have already. They have not seen the evidence against them. Nor have they had the chance to refute the evidence against them. As a result, the most fundamental tenets of our justice system will have been sacrificed. The existence and the use of security certificates has put a chill across our country.

I alluded to the individual in Edmonton, Alberta, but there are more cases than that individual, cases where Canada has failed its citizens. We should talk to Mr. Almalki about his time in Syria. He was detained in a cell, which was more like a coffin, for three months. We should talk to Mahar Arar about how Canadian officials let him down when he was abandoned to be rendered to another country to be tortured when certain people knew that would happen. Canadians know that Canada failed these men. Bill C-3 is setting ourselves up for further failure.

I was raised to take great pride in our justice system, and I do. The fact that innocent people can face their accusers and the evidence against them, and because of that process, the innocent one day can walk free.

It is crucially important to the sense of justice that all Canadians have that the people in this place pause, stop the rhetoric and think about the deterioration of our justice system and our human rights system if we gerrymander the process with Bill C-3, if we put into place a process like this, which is so ugly and disgusting. I truly cannot understand how anybody in this place can support it.

Our Criminal Code is among the best in the world. Our justice system is among the best in the world. Canada even sends people to other parts of the world to teach them about our justice system. One of the few ways we can keep that pride in our system and our institutions is to ensure individual rights and the rights of all people to face their accuser and the evidence against them.

For the NDP, the security certificate is an affront to civil liberties. We understand, with Bill C-3, the Conservative government is trying to address what is seen as a flaw in the process, and the Supreme Court ruled that it was a violation of the charter. Clearly, what the government has tried to do with Bill C-3 is move around something that has been deemed by the Supreme Court as a violation of the charter.

We must think about the rights and freedoms for a moment. We must think about the individuals detained in our country. Their freedom has been taken away and they have no rights.

It is our Charter of Rights and Freedoms that we must protect. Imagine the setting aside of well respected fundamental terms of justice and how this is being done so cavalierly. The detainees have not seen any critical evidence against them. Their legal representatives have not seen the evidence against them. Let us just say tomorrow, for whatever reason, it is deemed acceptable that they return to Canadian society, that there had indeed been an error. They will also be besmirched by the fact that they have been detained. Because of Bill C-3 and the security certificates, they will always be subject to suspicion.

I spoke harshly because I was upset with what I had heard in a committee about the tone of this place. I know when I speak to many members here, they want to see us all rise above rhetoric and beyond the point scoring process that seems to happen here daily. That challenge is being put to us by Canadians and they want us clearly to reflect what they believe.

With that, I will close with a line that has been heard in this place many times before. We must remember, for the rest of the world, what we ask for ourselves, we wish for all. That is what makes Canada the place to which many people from all over the world seek to come.

[Ken Epp, Conservative, Edmonton—Sherwood Park, AB]

Mr. Speaker, she did not answer the question. I asked her how she would handle it if someone were picked up with substantive evidence, enough to arrest them. The evidence is there, but we cannot divulge either the source or the nature of the charges against the person because doing so would put in danger those who are on our side, the informants, the other people who are involved.

I would like to also point out to the member that Bill C-3 does accommodate that by allowing a judge, and in this country we believe judges to be fair and impartial, to hear the evidence in secret chambers, with a lawyer appointed to actually represent the accused and to see the evidence but also sworn to total secrecy so the whole process can be done to protect our citizens. That is in the bill. So she is at the same time supporting the concept of what is in the bill and speaking against the bill. I have sort of backed her into a corner. I regret doing that. I do not like to--

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 third time and passed, and of the motion that this question be now put.

[Alexa McDonough, NDP, Halifax, NS]

Mr. Speaker, I appreciate the opportunity to speak to Bill C-3, which deals with security certificates.

Mr. Speaker, I look forward to sharing my time with the member for Hamilton East—Stoney Creek.

I have to say that I already was very concerned about the legislation that is now before the House. If we just take a moment to remember, it is legislation that aims and purports to fix flawed legislation that was struck down by the Supreme Court for some very good reasons. Now what we have is flawed legislation to replace the flawed legislation.

The legislation that has now been introduced by the Conservatives has been left really until the last minute. I think they are hoping that some kind of fearmongering and trying to muster public opinion will actually put pressure on members of this House to cave to the notion that we should cut debate short and we should just ram it through without critiquing it, which is actually what the parliamentary secretary proposed a little while ago, I have to say to my surprise and horror.

When I heard the comments that he was making in his defence of this flawed legislation, I just could not believe that members of this House, and probably he is representative of his colleagues, have learned absolutely nothing from the very problematic situations that have been created. Frankly, to be honest, many of them were created by the previous Liberal government, but in the instance of security certificates, these have been in place for a very long time.

What has come to light is that when people are placed under suspicion of possibly having engaged in some kind of terrorist activity, a great many fears flood to the fore and people seem quite prepared to say, “Let us just trample on human rights. Let us suspend civil liberties. Let us throw due process on to the scrap heap. Let us be satisfied that we are going to make some mistakes”. Without due process we will never know for sure. We will just entrap some people who may be completely innocent, and we will never have a way of knowing whether that is the case, because those people will have virtually no rights whatsoever to due process under the law.

I have had many occasions over the last several years since 9/11 to recall the prophetic, profound warnings of a very courageous member of the U.S. Congress who stated that in the attempt to defeat terrorism, let us not become the evil we deplore.

I consider that it is succumbing to evil, that it is embodying evil to say that we do not owe the same kind of due process to every single human being who comes before our courts, to ensure that they are not wrongly convicted, and to ensure that any conviction takes place in a court of law with due process and not based on rumours, suspicions, prejudices, Islamophobia, or any other form of hatred. I consider that it is all the more reason for us to take even more time to be cautious about what kind of legislation we put in place.

My colleague from Surrey North, the public security critic in the NDP caucus, has very aptly cited the instance of Maher Arar and the courageous battle that was conducted to clear him of exactly the kinds of prejudices, presumptions and condemnation. He was placed under suspicion, not through security certificates but through the unbelievable events that resulted in his being spirited away from Canada because of information that was wrongly provided by Canadian authorities to American authorities, and in turn American authorities were prepared to send him off to Syria to be tortured.

It seems to me that it is a particularly appropriate time for us to take a few moments to think about the honour that was bestowed on Maher Arar and Monia Mazigh last night at a very well-attended event addressed by a previous ambassador of Canada who gave distinguished service to the United Nations. What it recognized is that all of us are indebted to the courageous struggle that Monia Mazigh engaged in to bring her husband home. Calmly, clearly, simply, but profoundly, she asked for her husband Maher Arar to be returned home to Canada, to be returned home to his family, and to be returned home to justice.

Let me say again that this did not happen under the security certificates. Effectively, he was tried and convicted in the court of public opinion and was treated without due process, even by the authorities, and perhaps especially by the authorities in this climate. I remember how infuriated I was when cabinet ministers in the previous Liberal government were prepared to ask me if I was not worried that if he was found to be a terrorist I would be tarnishing my own reputation. My reaction was that this will never be allowed to be a fear as long as I live and breathe when someone is placed under suspicion without the benefit of due process.

Let us take a few minutes to think calmly about what it is that we are discussing here today. I am trying to be calm, but I feel very provoked by the comments made by some members in the House over the last while. Those comments show that nothing has been learned from the horrible events that have been visited on the lives of too many people because of the suspension of due process. That goes to the heart of what our Supreme Court exists to do. It exists to ensure due process and to strike down the law when it finds that due process is not assured.

I know that there will be some argument made about the fact that some other countries have now put this kind of system in place, such as New Zealand and the U.K., but there are already serious indications of how flawed the so-called reformed legislation is when it comes to the treatment of people placed under suspicion of terrorism. Let us be very clear. No society has ever been made safer by trashing due process of law.

I have only a couple of minutes left. I want to say once again what has already been said by many of my colleagues and by the member for Surrey North, who has done a superb job in addressing the very heart of this matter, and that is that this legislation is flawed for a number of reasons. Some of those reasons I have already explained, such as the suspension of due process, but also, ironically, for those fearmongers who keep trying to dredge up absolute horror for the public, the irony is that security certificates do not punish people who are plotting terrorist acts.

The fact of the matter is that our criminal legislation should be dealing with this problem. That is the way in which we should be dealing with any handling of suspected terrorists.

I plead with all members to pay careful attention to the fundamental principles that are at stake in this instance. Let us be clear that any society which tries to become more secure by trashing human rights and civil liberties is likely to end up being both less secure and having a lot less freedom for all of its citizens.

[Ken Epp, Conservative, Edmonton—Sherwood Park, AB]

Mr. Speaker, I would like to point out with great clarity that the people addressed by this bill are not citizens of our country. Our primary responsibility is to protect Canadian citizens.

The other thing is that this bill is a correction to what was lacking, as identified by the court, in the previous legislation. This provides that people who are so accused would have a process whereby, outside of the people who arrested or detained them, someone independent from that such as a judge or an appointed lawyer who will operate in secret, in closed quarters, in camera, would hear the charges.

Frankly, I do not know why members of the House would fail to trust them. We have to have some trust in our own people, in our own system. They will not keep a person detained who in fact is innocent. That is why this process was brought in.

Unfortunately, we are dealing with people who have been arrested. I do not believe that our people just willy-nilly, at random, take a person off the street and say, “There is one. Let's arrest him”. I do not believe that.

In every instance, these people have had evidence collected against them and they are arrested with grounds. Bill C-3 corrects the deficiency so that there is a process, while at the same time addressing the problem of being falsely accused--

[Ken Epp, Conservative, Edmonton—Sherwood Park, AB]

Mr. Speaker, I am delighted to speak to this particular bill.

I want to say at the outset, and actually will be almost the brevity of my speech, that I support the bill wholeheartedly. It is a pragmatic necessity in the world in which we live. I think our duty as parliamentarians and as the House of Commons is to give speedy passage to the bill so we can continue, under the provisions of Bill C-3, to provide security and safety to Canadian citizens. That is a paramount duty and responsibility of government.

Therefore, I would urge all members of Parliament to give speedy passage to the bill so it can go through the process and become law prior to the deadline of February 23 so we can achieve what needs to be done.

In an attempt to help move the agenda forward and to get the bill passed, I move:

That this question be now put.

[Blair Wilson, Independent, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Mr. Speaker, it is an honour to join in the debate on this important legislation, Bill C-3, An Act to amend the Immigration and Refugee Protection Act.

While this specific bill would not be my first choice when it comes to drafting legislation to better deal with the process surrounding security certificates that the Supreme Court of Canada has declared unconstitutional, it is, nonetheless, the bill we have before the House today.

However, I take great comfort in the fact that the Liberal Party and my colleagues on the committee have passed a number of critical amendments to significantly improve this bill, amendments that, first, will remove any and all evidence that was obtained as a result of torture; second, the retention of the solicitor-client privilege between the special advocate and the accused; and third, the inclusion of the provision that allows the accused to choose his or her special advocate.

While this bill is not perfect, it does include those three important Liberal amendments which I feel would significantly improve the bill.

Does my colleague across the way not think that these important Liberal amendments will go a long way in improving the bill and will help to safeguard both national security for Canadians and, at the same time, respect our Charter of Rights and Freedoms?

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, I am not sure I understand the first question on why it is considered unconstitutional. I talked about why it is considered unconstitutional.

Let us be clear. The Supreme Court did strike it down. The Supreme Court said that it had to be changed to better reflect and meet the civil and justice rights of individuals. It did not send it back and said that if it were polished up a bit, it would be okay. The court said that it did not work for the people who were being detained.

The fact that the member is getting many letters asking questions about why more people are not appearing before the committee says Canadians are following this. People want to know where the evidence and information has come from, on which the committee has based its decision.

Yes, two people, who have been detained under Bill C-3 certificates and are on bail, came before committee. I did not suggest for a minute that there had not been an opportunity for those two people to be there. I found their presentations helpful, as I found the presentations of many people who came. I do not think anybody suggested that those people were unable to make presentations. It would seem to me reasonable that they were able to do so. If it is extraordinary that it has happened in Canada, then so be it and good for Canada.

The fact they appeared is fine. They have the right. We were talking about the impact on their lives and the lives of their families. I more than acknowledge that those people had the right to appear. Those are still the same people who do not have the right to know the information that is being used against them. I say it is unconstitutional because the Supreme Court did.

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, I was going to say that I am pleased to rise in the House, but I am not sure if I am pleased to rise in the House today over this particular discussion. However, it is important to rise in the House today to speak to Bill C-3.

I am proud that the members of the NDP, along with some others, are standing in opposition to what is really fundamentally flawed legislation.

Others have spoken to this, but from the beginning, security certificates have been the wrong way to deal with an approach to terrorism, espionage and organized crime. The member for Vancouver South, although saying that his party will be supporting the bill, did say that a method such as the SIRC system would have been a preferable approach to take to this as opposed to this redone, renewed and recycled security certificate bill that we have before us.

When the security certificates were shut down in February 2007, I think many people were very pleased to see what they hoped would be the end of a really defective process. That did not happen. People are very disappointed that the government has chosen to reintroduce security certificates.

The Liberal opposition members have noted on a number of occasions that this is not the bill they would have brought forward, that it probably could have been a better bill and that there were other systems, but they are going to support it anyway because of the timeframe.

The bill was struck down in February of 2007. Its replacement was tabled on October 22, 2007. If this is such a grave and grievous threat to Canada, and I think we will all agree that terrorism, organized crime and espionage are such threats, why would the government wait nine months in order to bring this forward? Why would the government not have brought the House back in September when it was due to come back and allowed for further opportunity to debate it at committee and to call witnesses?

It is very puzzling that we found ourselves seeing it for the first time at the end of October. Witnesses who might have wished to present before the committee could not. Now I hear people suggest that it was not really what they would have done but that we have to pass it now because we have a time crunch. I understand the time crunch, but I am not sure that it is the best reason for passing flawed legislation. To me, the fact that it was not dealt with earlier is something that, to be quite honest, I simply fail to understand.

As well, I was bothered by the examination of the legislation at committee. Having waited nine months to reintroduce this, the minister then came to committee and said, “Please hurry up and pass this and please move it quickly through committee because it will expire in February”.

As a result, the Conservatives established a timeline at committee that excluded dozens of witnesses, among them experts, advocates and people with direct experience of the security certificate process. People spoke up. They said that this was not acceptable. They said that there were many more people from whom we needed to hear. Indeed, there were names added to the list of people testifying before the committee.

Again, what was interesting was that 17 witnesses testified before the public safety committee, of whom 13 were opposed to Bill C-3. There were 20 written submissions, and all but one said that Bill C-3 was flawed. Having heard that from all of these witnesses, for some members it was as if they thanked the witnesses very much for their information, but they had already decided the way they were going to go on it, and the way they were going to go was security certificates.

They had made up their minds, and while they said thanks to witnesses for coming in with their presentations, it was not going to influence their thinking. I think the Conservative members on the committee, and maybe the Liberals as well, although they acknowledged that there were some problems, ignored expert testimony and advice.

The basic premise of the right to defend oneself is interesting. It is one that has been raised here frequently. It is one that people who are opposed to this legislation are very concerned about. I heard an earlier speaker say that normally we assume that people are innocent until proven guilty, except in this case, where people are presumed guilty until proven innocent, except that we do not give them the tools to prove themselves innocent. They are not given access to the information to prove that they might be innocent, but we know that in at least one situation there was information that would have caused a different outcome.

It is interesting to know what we are saying about somebody who, we have said, is involved in terrorism. Terrorism is the example that gets used the most, but it could be espionage or gang crime as well. It is interesting to know that what we are saying is that we will send the person back to his or her own country to continue his or her work, so to speak. If that indeed is the individual's work, then he or she will perpetuate that, perhaps teach other people, come back to Canada and try again.

How Canada would be any safer as a result of that I do not know. Why would Canada not be safer if it used the Criminal Code to put people in jail? Surely that is what Canadian citizens expect of us in terms of protecting this country: that if people commit or are about to commit a crime of that nature, a crime that is a danger to the citizens of our country, they would be put in jail for a very long time so that their activity is cut off and they will not be engaged in that activity. I think that the right to defend has been totally suspended for this piece of legislation.

Another issue the NDP has with this legislation is the one around civil liberties. Public safety seems to me to be about a balance between freedom and security. There is no question about it: Canadians want to know that they are secure. They have every right to know that, but it is a balance. This legislation is just as imbalanced as the last piece of legislation, which was struck down by the Supreme Court.

Most lawyers who have expertise in this area have said they believe the legislation will be struck down again if it is taken before the Supreme Court. I am quite certain there are lawyers who will be prepared to take this back to the Supreme Court and we will be back here having the discussion again about why this does not work and why we should be including this in the Criminal Code with a different kind of system.

The provision of a special advocate, as is done by the U.K. and New Zealand, is, people have said, a compromise that will work, but in the U.K. there have been many challenges as to the effectiveness of the special advocates and the resources they have.

As for the lawyers here, 50 lawyers have applied here and I think people are expecting that many more, but the lawyers I have talked to do not want be in the position of knowing that if they see something in the file which would be of benefit to the detainee but needs further clarification, they cannot do it. Yes, lawyers can speak with the detainee and the detainee's counsel and then they have the right to see the file, but if they see something in the file that would be of benefit to the detainee and needs further clarification, they cannot do it. For one thing, they do not have the resources to do the research. Second, they do not have the ability to have that discussion with the detainee.

There are ways, and most lawyers will tell us that, of asking questions without giving away that information which other speakers indicated they were concerned about, information that would indicate to others that their cover had been blown or who had reported on them. We know that lawyers are able to ask questions. We saw that in the Maher Arar case, where they discovered later that some very simple questions would have been able to clarify the fact that he indeed was not involved in the activities that they thought he was.

Others have spoken of Ian MacDonald. Mr. MacDonald was a special advocate in the U.K. system. He quit over the failure of the British system to address the civil, justice and human rights needs of people who had been detained. Knowing that, the government still has chosen to adopt that system. People have said that under this system, we will still be able to ensure evidence will be brought forward that will not keep somebody in detention because we will not make errors in that way.

I was at an event last night where Maher Arar and his wife, Monia Mazigh, were awarded the British Columbia Civil Liberties Award. As people have read, Maher Arar was rendered back to Syria by U.S. border agents where he faced torture until his return to Canada a year later. Thanks to the work of Commissioner Dennis O'Connor and the Arar inquiry, Canadians now know that Mr. Arar's experience was due to errors by Canadian officials who placed excessive emphasis on national security at the expense of civil liberties and human rights. As a result of the work of many people and Monia Mazigh and his children, that was rectified. However, not everybody has that kind of support system available to them.

We know errors are made. We know information can be suddenly condensed. The original proceedings are gone and are now in a more modified form. Perhaps some evidence that could be used is suddenly not available to people. We see a bit of that now in the case in front of the court.

The Conservatives know the special advocate system is flawed. Mr. MacDonald has spoken in front of committee. He has shared his criticism of the special advocate process.

Five individuals have been confined under security certificates. One person, Mr. Almrei, is still in detention. The other four men, Mohammad Mahjoub, Mahmoud Jaballah, Adil Charkaoui and Mohamed Harkat , are on bail with sureties on conditions that are set up almost to fail. If the men go to a mall and they have to go to the bathroom, their sureties have to go with them. It does not matter if it is the women's washroom or where it is. They have no breathing room. It is almost as if these conditions are set to fail.

If these people are guilty, they should be on strict bail conditions, but not on conditions set to fail. We do not do that to people in our justice system. If these people are guilty, we must have an opportunity to prove they have done what they are accused of doing.

Even if all civil liberties were protected in the legislation, security certificates are still legally the wrong way to go. Why would this not be done under criminal legislation? Can we not change our criminal legislation? It has a very different level of evidence. It has a very different level of seriousness in terms of how evidence is presented and the standard which one has to meet. It would be a much better method to deal with these instances.

We have seen the consequences of those kinds of allegations. We owe it to people to subject them to the highest possible standards of our justice system, not a lesser process. This is why I and the NDP caucus are fundamentally oppose to the legislation, as are the Bloc Québécois and at least a couple of members of the Liberal opposition.

In further debate I hope other people will be able to expand on some of these points. For these men and their families, to deny them the right to defend themselves, to not tell someone why they are charged, to be unable to produce the evidence for them or their counsel and to expect a special advocate to look at it and then be unable to use it in any significant way for that detainee is outside the realm of any understanding I think Canadians have of human and civil rights and the responsibilities of the justice system.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, I would first like to congratulate all the opposition members who worked very hard in the Standing Committee on Public Safety and National Security on this very important issue regarding human rights and people who are concerned about procedural guarantees. I am thinking of the contribution of my colleague from Marc-Aurèle-Fortin. I believe he was supported by the member for Saint-Hyacinthe—Bagot. I also know that members of the official opposition, such as members from the NDP, worked very hard and they should be acknowledged.

I must say it is very disappointing for the democrats in this Parliament, very disappointing for those who believe certain principles should be defended when it comes to the administration of justice, and very disappointing for those who believe in fundamental justice.

As my colleagues on the Standing Committee on Justice and Human Rights know, in a democracy, the ends do not justify the means. We cannot say a situation is urgent or that there are potential terrorist threats as a way to ignore or fail to respect some principles of fundamental justice that are inalienable and inviolable.

That is why the Supreme Court sent a very clear message to Parliament—it will be one year ago in a few days, if my memory serves me correctly—indicating that it had gone too far, that it miscalculated the potential repercussions of this bill, particularly in light of one of the constitutional guarantees found in section 7 on the right to life, liberty and security. There is ample case law to show that section 7 cannot be violated unless the fundamental principles of justice are respected.

I was in Ottawa in 2001. The then minister of justice was a member from Alberta, Anne McLellan, a former constitutional law professor—I do not know whether she went back to teaching. It was therefore quite surprising that we were being proposed procedural shortcuts like those contained in the bill at the time and which have not been improved since.

In short, the Bloc Québécois has always had three lines of attack when it comes to this bill. First, in 2001, we said that the Criminal Code contained all the necessary provisions for dealing with possible security threats by individuals who are not Canadian citizens. This could be handled through the Criminal Code and also through the Immigration and Refugee Protection Act.

In 2001, we already had three major concerns. It is nonetheless reassuring to know that the Supreme Court shared our concerns.

The first concern is about the exception that allows foreign nationals to be arrested without a warrant. This exception can very easily be abused. Anyone who has ever practised law in any capacity has considered the balance that must exist in societies, between the duties of citizens and the responsibility of the state to provide a safe environment for its citizens. Accordingly, if we are to rely on the police, they should, at the very least, be given the authority to intervene with a warrant.

This is a topic that has generated all sorts of rulings. There is even talk about an independent judicial authority and ensuring that a certain number of conditions are met when a warrant is issued. That is easy to understand, since a warrant has the potential to be extremely intrusive. Not only can individuals be arrested, but authorities can interfere in their private lives and go to their homes. The court has said that a home is a man's castle. Obviously, we cannot enter an individual's home without first having done a certain number of compliance checks.

Since 2001, it has been possible to arrest foreign nationals without a warrant previously issued by an independent and impartial court whose judges cannot be removed—except, of course, for misconduct.

I would remind the House that it has nothing to do with the fact that someone is a foreign national, that they do not yet have Canadian citizenship, that they have not been in Canada or Quebec for many years. As we know, concerning the process of obtaining citizenship, from the time a person enters Canada as a political refugee, permanent resident or person in need of protection, it can take many years to be eligible. It takes three years for citizenship, but in some cases, it can take much longer, depending on whether there are any appeals.

What an absurdity, what a violation of rights and how insensitive to introduce in Parliament a legislative framework under which we can appear without a warrant being issued by a legal authority, a court of law, and of course, under the conditions set out in the Criminal Code. What is most worrisome is that when someone is accused of being a threat to national security—the word “national” refers to Canada, but it could also apply to Quebec—it is believed that that individual has a history of terrorism, that he or she has been involved in organized crime and has committed such serious offences that he or she must be considered inadmissible to Canada. Furthermore, we expect that individual to understand the evidence used by a legal authority—in this case, the Minister of Citizenship and Immigration, the Minister of Public Safety or both—to declare him or her inadmissible to Canada. In fact, we expect the individual, whom we are about to declare inadmissible to Canada, to know what evidence exists against him or her.

There was a sort of revolution with regard to procedure in the early 1990s. I am referring to R. v. Stinchcombe. Stinchcombe was an Alberta lawyer who practised business and real estate law, and who committed fraud by making poor investments with the fortune of a client who had retained him. There were a number of appeals.

This case is important in the history of justice because a ruling was given on disclosure of evidence. Since 1992, all evidence held by the Crown must be disclosed to the defence. At times, the evidence could fill the House of Commons. At times, hundreds of thousands of pages have to be disclosed to the defendants. That is why trials can last years and years. This is particularly true in criminal cases.

However, that is part and parcel of the principle of procedural fairness whereby if charges are laid, if an individual is brought before the courts, if he is accused of an offence, he must be apprised of the elements of the proof. That applies to a notebook kept by the police upon the arrest to the most refined investigative techniques. The fact remains that the evidence must be disclosed in full to the defendant who is being accused.

Given that it allows someone to be arrested without a warrant, Bill C-3 strays far from this principle. Not only is the individual arrested without a warrant, but he is told that he will not have access to the evidence which has deprived him of the right to remain in Canada and Quebec. Consider the extent to which this contravenes fundamental legal rights. Consider that depriving an accused of access to evidence is contrary to the tradition of defending rights and procedural fairness.

It is obvious that there are times when the evidence can be sensitive. That is why there are provisions in the Criminal Code. The judge can order a closed doors hearing and request that the media do not have access to information. However, in no way can we support a principle that does not allow an accused person, and particularly someone accused of a criminal offence, the right to know the evidence on which the accusation is made. Why is this principle important? It is important because the right to a full and complete defence is written into the Canadian Charter of Rights and Freedoms, as well as in the Quebec Charter of Human Rights and Freedoms. How could one appoint a solicitor to defend a client if the solicitor does not know all the evidence being used against the accused? Why is it important? It is important because we know that as individual citizens we are not on a level playing field with the government. The government has investigation techniques and police officers and can use infiltration to gather information. There is a whole range of tools that can be used in making an accusation against an individual that are not available to the ordinary person.

I repeat, the Bloc Québécois is not saying that terrorism does not exist or that there are no individuals who could represent a real threat to the security of the country. What we are saying is that it should be possible to set up a legislative regime in which a lawyer under oath has access to the evidence and represents his or her client in a closed-doors context, in a context where there cannot be the same circulation of information as in a regular trial. However, to insist that during all the procedures the accused person can never see the evidence—we do not believe this is acceptable in terms of procedural fairness.

The third questionable point for the Bloc Québécois is the point the member for Marc-Aurèle-Fortin brought out so brilliantly in committee. We know what a formidable attorney the member for Marc-Aurèle-Fortin is. He has made his living as a defence counsel. He has an excellent command of the techniques of cross-examination. How many times have I spoken of his excellent work in the Schreiber-Mulroney affair at the Standing Committee on Access to Information, Privacy and Ethics? He was splendidly supported by our colleague, the member for Saint-Bruno—Saint-Hubert, who is not a lawyer but was still able to extract a confession. She led Mr. Schreiber to confess, as a result of which the Club des ex awarded her the title of one of the most promising parliamentarians; a member with a bright future within the Bloc Québécois. That happened between Christmas and New Year’s Day on the RDI network program Le Club des ex. The host of the program was our old colleague Jean-Pierre Charbonneau, the former provincial member for Borduas. The former Liberal Heritage minister took part and, of course, a former ADQ member of the National Assembly from Lanaudière, Marie Grégoire.

All this to say that our third concern is that people will not only be arrested without a warrant but will not be allowed to see the evidence against them. This means that if the Minister of Citizenship and Immigration or the Minister of Public Safety signs a security certificate, the Federal Court is notified. If the judge, having examined the facts, finds that the rationale in the certificate is reasonable and finds reasonable grounds to believe that the person involved is a danger to Canada, the entire process is initiated. The individual will be arrested and detained, often for considerable periods.

Some people say that the individual can choose to return to his country of origin, but when someone has left that country three, four, five or six years previously and remade his life in Canada, it is not easy to leave. Often, of course, people came here to remake their lives because they feared the possibility of torture and persecution under authoritarian regimes.

There is another problem with Bill C-3. The level of proof required is clearly too low in view of the seriousness of such situations. The Bloc member for Marc-Aurèle-Fortin moved an amendment to require that the evidence be beyond a reasonable doubt, as in any criminal case. But the amendment was rejected. It was a bad decision that had no basis in parliamentary practice and was certainly not justified from the standpoint of the interests of the accused.

How can we possibly be satisfied with a simple level of proof like reasonable doubt when the physical survival of people—including arbitrary imprisonment and detention under very difficult conditions—is at stake? What sense does it make not to require a level of proof equivalent to “beyond a reasonable doubt”, as in any criminal case?

Once again, the hon. member for Marc-Aurèle-Fortin, who is a very experienced parliamentarian, moved amendments but unfortunately they were not discussed. It was decided, quite wrongly, that they were beyond the scope of the bill. That was a very bad decision. We obviously respect the authority of the committee chair. I do not know whether you were asked for advice in the matter, Mr. Speaker. In my opinion, you would have agreed with your clerk and would not have rejected this decision. I should add that the Bloc Québécois challenges it and we think it was an abuse of procedure that is not a credit to the institution.

That being said, I would like to move on to our fourth concern, which is the fact that this bill does not include an obligation to ensure that an individual will not be deported to a country that practices torture before triggering the process by which that individual can be not only detained, deprived of basic freedoms, poorly represented and arrested without charge, but also deported. The bill offers no guarantees in that regard. In cases where the mechanism applies, Canada may use the flawed system that I have been talking about for several minutes now to deport individuals deemed to be a threat to national security. Canada is violating its international obligations by failing to ensure that measures are taken to avoid deporting individuals to countries that practice torture.

This is, therefore, a very bad bill. I do not understand how the Minister of Public Safety can sleep at night after introducing such a terrible bill that stands in stark opposition to our democratic traditions. This will certainly be a blemish on Canada's reputation in the international community and in forums for multilateral debate.

This is a very bad bill, and we cannot support it. We do not understand the Conservative government's intention given that, as I recall, it expressed serious reservations when it was on the opposition benches. Even though the Conservatives supported Ms. McLellan's bill, they were concerned about a number of flaws that remained over time.

Once again, shame on the government for its lack of respect for procedure. I call on all of my colleagues in the House to reject this bill.