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

[Denise Savoie, NDP, Victoria, BC]

Mr. Speaker, I think we all agree that it is the government's responsibility to protect its citizens. Anyone who plots a terrorist act should be tried, convicted and punished, not simply, in our opinion, deported to another country. I wonder if the hon. member thinks that an accused should have the right to know and to examine evidence against him or her.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Mr. Speaker, again, the member is attempting to confuse a criminal proceeding with an immigration proceeding. In an immigration proceeding, it is to protect the country from individuals coming to the country who pose a threat to the country.

In a criminal proceeding, what we have is someone who is charged, or intended to be charged, with committing a crime, committing a specific act against the legislature. Those do not have the security interests that are exhibited in a case of foreign nationals wanting to coming to Canada. They are entitled, in fact, to leave at any time they want to. They are just not entitled to come here if there is serious criminality involved, and if there is a threat to security, or terrorism in that area.

However, having said that, the special advocate would balance the rights of the individual to have information regarding his or her case and the ability to address it. That special advocate can test the evidence, can weigh the evidence, can cross-examine witnesses, can argue before the court as to whether or not that information should be kept confidential or not. I would presume that counsel, the ministers of the government of the day and a federal court judge, would have a better sense of coming to the conclusion that that must be kept out of the public eye more so than the individual himself or herself who obviously is the subject that proposes the threat to the country.

It is a balance, and I appreciate that, but it is a balance that allows, with a unique strategem, the individual to know the case that is put forth, to examine and test it within the confines of that limit, and to protect personal interests but without trumping national security.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Mr. Speaker, listening to the parliamentary secretary and listening to quite a bit of debate on this issue, as well as the anti-terrorism bill, I am reminded of what it must have been like back during the time of the first world war and the time of the second world war because for national security we interned people from the Austro-Hungarian empire, we interned many people of Ukrainian descent, and of course during the second world war, we interned Italians, Japanese-Canadians, and the list goes on and on, all done in the name of security.

As members know, we have settled with Japanese-Canadians to make up for the injustices of the past and we have done some with Ukrainian-Canadians as well.

It seems to me that the parliamentary secretary should answer this question. He often says it is an immigration act when we keep people in custody indefinitely and they have a Hobson's choice: If they go back to the country they came from, they might be tortured or killed. Then of course he differentiates it from the Criminal Code where we actually have proof and give people the right to appeal before we can lock them up for a long period of time. Surely the member sees the contradiction in those two approaches. I would appreciate his response.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Mr. Speaker, precisely. We talked about the Hungarians in the dark moments in history. When the Ukrainian-Canadians were interned, this procedure was not in place and they were not subject to it. Had they been subject to this procedure, that would not have happened.

First, the Minister of Citizenship and Immigration and the Minister of Public Safety has a look at the information and the evidence to be sure the case should go forward.

Second, we have a federal court judge who looks at the matters to ensure they are not superfluous, not whimsical. They have to be substantial and they have to be with respect to the safety of our country, with respect to someone endangering the safety of our national security. This is not done at a whim. If we had this kind of process in place, that would not have happened.

This process allows the council to intercede on behalf of the individual to make a case for that individual to ensure there is a perfect balance in the end so the individual is protected. There are measures there where the judge can allow a fairly significant type of procedure to take place for the special advocate, including the kinds of things we would do in a criminal trial, like cross-examination of a witness, testing the evidence and dealing with the weight and the sufficiency of the evidence, the kinds of things that would ensure this is proved, that it is real.

In terms of the distinction between criminal proceedings and these proceedings, I thought I adequately addressed that in my initial speech, but there is a difference.

[The Deputy Speaker, NDP, Bill Blaikie]

I am sorry to interrupt the hon. parliamentary secretary, but the time for statements by members has arrived. Questions and comments will continue when the House takes up this matter again.

The hon. member for Yellowhead.

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.

[The Speaker, Liberal, Peter Milliken]

When the debate was interrupted by proceedings at 2 o'clock, the hon. Parliamentary Secretary to the Minister of Citizenship and Immigration had the floor for questions and comments consequent upon his speech. I guess he is rising in response to the previous question or comment.

[Ed Komarnicki, Conservative, Parliamentary Secretary to the Minister of Citizenship and Immigration]

Mr. Speaker, there was a two part question. I answered the first part but not the second part. I would like to answer the second part of the question raised by the hon. member for Kitchener—Waterloo. I believe the second part was his concern that a foreign national may be held indefinitely under a security certificate indefinitely whereas someone charged under the Criminal Code for a Criminal Code offence would serve a time specific.

It points out the very essence of the distinction between the two. In the matter of the Criminal Code, the charge is for a criminal act that has been committed and the sentence is proportional to the type of act committed and the length of time that is appropriate to be served for that crime. It is unlike the issue we are dealing with here, which is national security and the admissibility of a person into Canada. A foreign national is not admitted to Canada if there is a security risk, if the person is part of organized crime or a terrorist, or there is evidence to believe that.

The foreign national, although not allowed into the country, can leave at any time. The only reason for detention is to protect the safety and security of the public. It is not a punitive measure. It is not something that is definite in time. Having said that, the bill provides for the person to be brought before a Federal Court judge within 48 hours and if there is a detention order because of a public safety and security issue, that is reviewed every six months and for as long as the person is in detention, but the person is free to leave at any time.

That is a very significant distinction. If there is another way to protect the safety and security of the country, the judge is able to release those on certain conditions, as has happened in many cases. They are restrictive. They need to be restrictive because the first and paramount interest is the safety and security of Canadians. That is the difference, that is the distinction and that is why the bill must pass.

[Dean Del Mastro, Conservative, Peterborough, ON]

Mr. Speaker, I enjoyed listening to the member's comments on the bill. I think the bill is wholly reasonable. I entirely agree with the member that the safety of Canadians needs to be the paramount concern of any government.

Perhaps the member could underline how this proposed legislation implements the Supreme Court of Canada decision regarding the reviews of the reasons for continuing to detain individuals. How have we addressed the Supreme Court of Canada's concerns?

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

First and foremost, be assured that there is a review, Mr. Speaker, of any detentions every six months and on an ongoing basis.

More important, there was a suggestion that there needed to be something in the nature of a special advocate. This bill provides for a special advocate who is security cleared and will have some experience in matters like this, who is able to probe the evidence, who is able to look at the material to see whether it should be confidential or not, or whether there are issues about bringing it in the public or not. The special advocate would be allowed to cross-examine witnesses, to probe the evidence that the minister has put forth. This bill underscores the idea of protecting the person's interest as much as is possible with regard to the fact that the security of the nation and the security of Canadians is paramount.

It sets out the parameters of how this might work. Then it adds a particular clause which states that the special advocate may exercise with the judge's authorization any other powers that are necessary to protect the interest of the permanent resident or foreign national.

It certainly indicates very specifically what can be done. It also says that in a challenge of the minister's claim that disclosure of information or other evidence would be injurious to national security, the special advocate can challenge the relevance, the reliability, the sufficiency of information or other evidence and the weight to be given to it. He or she may make oral or written submissions with respect to the information and other evidence that is provided and may participate in and cross-examine the witnesses who testified during any part of the proceeding that is being held.

That sounds very much like what we have in an ordinary courtroom in a criminal proceeding. It is the type of thing that is meant to protect the person's interest to the degree that it can be protected, given the circumstances that we find ourselves in.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Mr. Speaker, I am very pleased to engage in the debate.

First and foremost, let me start by saying that this is the 25th year of the Charter of Rights and Freedoms. Unfortunately, the government has not made any celebratory comments about it. It has not made a point of letting Canadians know, because the government does not very much support the Charter of Rights and Freedoms that was enacted on April 17, 1982.

It is very appropriate, in some ways, that we are debating this piece of legislation, the amendment to the security certificate act, because this legislation, which has been used to hold people indefinitely, to hold them when they do not know what the charges are against them, has been illegal for 25 years.

All governments in the past 25 years have argued that the security certificate process was constitutional. It was not until the Supreme Court struck it down, saying that this is not good enough, that governments and the bureaucracies that support governments admitted to that.

When we talk about why it is so very important to have the Charter of Rights and Freedoms, perhaps we have to reflect for a minute. I am going to make this very short, but I am going to draw it into the question. We have to look at the history of this country. We have to look at how this country has evolved.

There is a huge number of cases where we have been very draconian in our actions toward various peoples who came to Canada, be they Canadians of Chinese background or Asian background. We had the Chinese head tax and the Asian exclusion act. We had the internment of Canadians who were from the Ukraine and the Austro-Hungarian Empire.

Specifically, a colleague of mine with whom I served in the House had one uncle who was serving with the Canadian armed forces during the second world war while another uncle was interned and in detention during the second world war. I can tell members that my colleague was highly emotional about it.

Of course, we had the internment of Japanese Canadians. We had the policy of “none is too many” for the Jews. We had the turning away of SS St. Louis. We had a racist immigration policy until 1977.

So when I talk about the importance of this debate and what the charter represents, it is important to look at the history. It is because of all those injustices that I believe the Charter of Rights and Freedoms came into play and was enacted by the House.

It was a recognition that Canada is not a nation of any majority but a collection of many minorities, to the extent that we can be on the side of majority public opinion one day and we could very easily be on the side of the minority the next. Essentially, we are all minorities.

The charter laid out fundamental rights. Nothing is more important in terms of fundamental rights than section 7 of the charter, which essentially states that every person “has the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice”. The charter then sets out another seven sections on what those legal rights are. This is a very important piece of the covenant that we Canadians share. I very much wanted to make that point.

It really is unfortunate that when we talk about the bill dealing with the security certificates, which was introduced in the House, we are not also talking about the bill on the Anti-terrorism Act, which deals with preventive detention and investigative hearings, because that bill started off at the Senate. I think it would benefit us if we took a holistic look at these various pieces of legislation.

I think it would benefit us if we looked at these in that way, particularly in the context of what happened on 9/11, because so much of our legislation now seems to be responding to the attacks on the World Trade Center. We should look back. We should try to determine if the actions taken by democratic governments in the western world, and indeed in the rest of the world itself, are enhancing the security of Canadians and security in the western world. Or are they making matters worse? I think that kind of overview would be beneficial not only to members of Parliament but to the country as a whole.

Therefore, I regret that the government has introduced the ATA or Anti-terrorism Act legislation in the Senate while of course we are dealing with the security certificate section in the House of Commons. I think a holistic approach would have been more preferable.

Much has been said about one of the reasons for having the bill, which is that we want to protect the security of Canadians. I think this is something that is very important for all Canadians to understand when we are dealing with security certificates and detentions for an indefinite period of time. If we are dealing with such dangerous individuals as the government, the security forces and the bureaucracy would have us believe, I think it is important to understand that under the security certificates, these people can leave any time they want.

It is like having dangerous criminals here. Would we allow them to leave any time they wanted to if they really were dangerous? In essence, that is what the security certificate does. It is like they can get out of jail any time they want. What the government does not talk about, of course, is the point about the people who do not want to leave these inhumane conditions. They do not want to leave being confined to indefinite detention. Many of them are afraid that in the places to which they might be sent they are going to be tortured or killed. It is a kind of Hobson's choice.

However, the point of the matter is that if we focus on how dangerous these folks are, then surely to God, if they are guilty of committing terrorism or plotting terrorism, it would benefit all of us to have them in a secure custodial place where they cannot get out any time they choose.

I think that point is very important. I used this argument in the citizenship and immigration committee when we talked about security certificates. I said that if we were fortunate enough to capture Osama bin Laden surely it would not be beneficial to us or anybody else to send him back to the caves of Afghanistan. That would not make Canada safer. It would not make the western world safer. It certainly would not make the world a safer place.

Let us take the long view. I thought about this a fair amount, because I have had occasion to live under a totalitarian regime. As many members know, I was born in Budapest, Hungary. There is a particular place in Hungary to visit. It is called the Terror Museum. It is on Andrásy utca, Andrásy street. It documents the terror under the Nazis and the Communists.

At the most dramatic spot in the museum there is a mannequin, one half of which is a person in a Arrow Cross Nazi uniform. As it turns around, we see a person wearing a Soviet uniform. What is so interesting about the museum is that it shows that the terrorism committed by either the Communists or the Nazis was equally horrible. There was no difference. They were the flip side of the same coin. When we look through the museum at the various exhibits, we realize that state terror can be very dangerous.

Yet we would deport some people to countries such as that, where human rights are not respected and executions are an everyday occurrence. If anybody has a chance to focus on that, it might give people a different perspective.

In Canada, there are six people presently under security certificates. Five of them are out on bail. One is being held in the Kingston immigration holding cell. One person is being held. It cost $3.2 million to build the facility. It costs $2 million to operate the facility. It seems to me it would be much more prudent to have that one individual released on conditions. If the government really believes it has something, then I think that person should be kept under surveillance instead of us spending that kind of money.

The parliamentary secretary would have us believe that there are many safeguards built into the security certificate. He mentioned that the security certificate has to be signed by the Minister of Public Safety and the Minister of Citizenship and Immigration before going in front of a judge.

The reality is that the present-day Minister of Public Safety, on November 19, 2002, slandered Mr. Maher Arar by implicating him as a terrorist. It is this minister, who did not have the facts and was a critic in the official opposition, who could stand up and make that kind of charge. Surely that does not give a member of Parliament any comfort on the objectivity that he will bring to the job.

The other person is the Minister of Citizenship and Immigration, who, I am sad to say, is lacking in knowledge of that portfolio. I dare say that I would not trust her judgment a great deal.

Then, to have a judicial process that is so draconian, that does not allow for any appeal and that can keep evidence away from the person being charged under the certificate, is not right.

We also have to look at the role various security organizations have played. I am going to bring up two cases because they show how the United States security service and the FBI are not in sync with our security organizations.

Let us take the case of Maher Arar, which obviously many Canadians know about. This gentleman has undergone the most exhaustive inquiry in Canadian history in terms of an individual. He was cleared of all charges and any suspicion, but the United States of America keeps him on a no fly list. That is one case.

The next case I am going to cite I saw while going through the report of the B.C. Civil Liberties Association, which made a submission to members of the House on security certificates and anti-terror legislation. It is the case of Ernst Zundel, a great nuisance and an undesirable person who was dealt with by the security certificate process as a matter of convenience. It was convenient. Yet the government made the case, with which Justice Blais agreed, that he was a security threat, even though under freedom of information it was discovered that the FBI charge concluded that this man was not a security threat.

Here we have two security services in operation in two democracies, one in Canada and one in the United States, coming to totally different conclusions.

Much has been made about this applying only to people with no status in Canada and people who are residents in Canada but are not citizens of Canada. I remind the House that in 2002 a proposed citizenship act was tabled in this chamber, under which the security certificate process was going to apply to Canadian citizens. It was going to use it against Canadian citizens as well. I say that because the way we treat people different from ourselves, be they residents, immigrants or visitors, at the end of the day is the way we can end up being treated. I invite all members to revisit that proposed citizenship act that would have placed Canadian citizens under a security certificate regime.

I mentioned that in a time of tension and fear, such as the time after 9/11 and also during times of war, is when basic human rights need to be guaranteed by the charter more than ever.

When everything is going well, it is not a problem, but it is as soon as times get tough, that we need the guarantees. It was at that type of point in time when the decision was made to get rid of Canadians of Ukrainian background. It was at that type of point in time that racist decisions were made to get rid of Canadians of Japanese background, to put them through an inhumane process for which we ended up apologizing.

There is a lot of scaremongering going on in the name of security. We have to realize that in doing this, we are essentially undermining our own security. The best way to fight terror is to build an inclusive country, where everybody feels a part of the country. We must recognize that Canadians have all sorts of backgrounds and come from all over the world. We will always find an example of someone who breaks the law. It does not just apply to Muslims. I remind members in the House that Timothy McVeigh was a Christian. He was a Caucasian. After he blew up the federal buildings in the United States, we did not do an inquisition into Christianity.

Every Canadian has a stake in making sure that Canada does not become a them and us society. If it became a them and us society, we would have built a society like that in the United States of America where O. J. Simpson was not going to be convicted by a black jury. There are centuries of reasons of discrimination for that happening.

Disturbing incidents have happened in this country of ours. We could look at the debates on reasonable accommodation in Quebec. Appealing to intolerance does not help. It does not help security. It did not help security when the Prime Minister of Canada while in Australia played that division card, played the card of suspicion, when he intervened in the whole issue of veiled voting to divert attention, to change the channel on in and out funding of elections by the Conservative Party.

If we want a Canada that is safe and secure, we have to make sure all of us are treated equally and that we do not differentiate between the way we might treat immigrants and the way we might treat citizens, because that would be wrong and counterproductive.

[Dean Del Mastro, Conservative, Peterborough, ON]

Mr. Speaker, notwithstanding the comments I was going to make, I wanted to begin by suggesting that I think a lot of African Americans in the United States and certainly people of African descent in this country would be offended to hear that the member thinks those people do not stand for justice and would not convict one of their own based on the evidence before them. I think that is sad and I do not believe that is why that case arrived at that decision. I find that offensive.

The member often talks about how we do not celebrate the charter. I want to go back to that and ask him if he is going to have a celebration in the year 2010 when the Bill of Rights celebrates its 50th anniversary. That of course was a Conservative document which enshrined a number of the rights that the member claims he stands for, things like freedom of speech, freedom of religion, equality rights, the right to life, liberty and security of the person. It also enshrines property rights, such as the right to enjoy one's property, which the Charter of Rights and Freedoms neglected to do.

Specifically, I want to ask the member whether he believes that in all cases, the rights of an individual should trump the rights to the safety of the entire Canadian society. That is really what this is about.

The member is saying that he believes the Charter of Rights should always apply to everyone and if we apply those rights, then therefore we could never properly protect the Canadian public through the use of security certificates, even though the Supreme Court of Canada did not say that security certificates were against the charter. The Supreme Court recommended some changes. That is what this bill seeks to implement, and with these changes, we will be able to adequately protect Canadians.

The member wants to make this about the charter. It is not about the charter at all. It is about protecting Canadians. I wish he would get it straight.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Mr. Speaker, the member raised a number of topics.

Let me start with the O.J. Simpson case. All the polls taken after the O.J. Simpson case found that blacks in the United States thought he was innocent and non-blacks thought he was guilty. The case was very much poisoned by Detective Fuhrman when he came into the court and said that there was no racism involved and that he had never seen racist activity himself.

That is what I mean. That is why we have to have an inclusive society where it is not them and us, but it is all of us together in the same boat.

The member said that the security certificates were not unconstitutional. The Supreme Court found the security certificate to be unconstitutional and it gave the government a year to fix it. I am amazed that the member would not know that very basic fact. I ask him to read the judgment. This is incredible. That is the Conservative mentality.

He talked about the Bill of Rights. I will celebrate the Bill of Rights, as I have celebrated the Charter of Rights. I might tell the hon. member that on November 13, seeing that the government was not going to celebrate it, I had a celebration in my riding of Kitchener--Waterloo. We brought in Justin Trudeau and we celebrated the Charter of Rights and Freedoms. I would suggest that the member might want to do the same.

In terms of talking about security, Benjamin Franklin, one of the signatories to the Declaration of Independence in the United States, put it very aptly when he said that those who would give up freedoms in the name of security deserve neither security nor freedom.

[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?

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Mr. Speaker, certainly I appreciate the member's comments. We seem to be of like minds when it comes to the charter, civil liberties and human rights.

Let me say to the member that, yes, essentially we use overblown rhetoric to justify actions that really do not get at the problem the government is trying to solve. This is totally inappropriate legislation.

I reiterate that if there is someone who is a serious security threat in this country, the person should be in custody. We have other ways of getting rid of the person, instead of using something as draconian as the security certificate process, which totally ignores the legal sections of the Charter of Rights and Freedoms.

I will say to members in this chamber that I came to this country 50 years ago. My family and I tiptoed through minefields to get to freedom. We know what it means to live in a totalitarian dictatorship. We know that threats to civil liberties can never be taken lightly.

I go back to the central point I made in my presentation, that the only way we are going to be secure, and I will quote another American, George Washington, the price of security is eternal vigilance. We also have to recognize that eternal vigilance means that we defend our basic rights in the process. If we fail to do that, people can make a very good case that Osama bin Laden and his ilk did so much more damage to us because we did it to ourselves.

If we are going to fight terror, we have to fight it with a coherent plan. We are certainly not going to fight it by releasing dangerous individuals from custody to go back to the caves of Afghanistan or Pakistan or wherever. We will do so by keeping them locked up securely for the reason for which we have convicted them.