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

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, in spite of the changes to the act with which the official opposition is pleased, does the member think there will be enough financial resources for the special advocate to not only do administrative work, but further investigative work if it is necessary? Will the special advocate have the kind of freedom to information that he would want to see available if he were in the position?

[Roy Cullen, Liberal, Etobicoke North, ON]

Mr. Speaker, I thank the member for Surrey North for her hard work on the sub-committee and the committee on this matter.

This matter was raised and discussed in committee. There was some concern that not only did the special advocates need the sort of rum and ration type of support, but they needed to be able to do all the research and have the resources available as well so they could act and respond in a timely way. The government responded, not unreasonably, that the matters could not be built right into the legislation. We looked at the wording at the time and some improvements perhaps were made to make it more clear.

All of us in the House and all Canadians and people who are interested in this legislation will be watching, I am sure, as the government brings in the regulations to support the special advocate process. That will begin to spell out more clearly how this will work. The next stage will be the estimates and the budget building process to see what actual resources are made available. If they are not sufficient, the House, or the committee or both should flag that and take it on with the government.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Mr. Speaker, most Canadians would be stunned to hear that people have been incarcerated in Canada for periods as long as five to seven years on evidence that potentially was obtained through torture. The bill as it stands now has been amended so that evidence obtained by torture cannot be used.

We also know that evidence is provided by countries from the Middle East, developing countries and third world countries that do not have the same standards of evidence that we have here in Canada and other democracies. What guarantees do we have that evidence from countries that have different standards than ours in terms of evidence, that people will not be incarcerated as a result of that type of evidence?

Second, we also know that many of these countries are not democracies, they are dictatorships. People often seek refuge from those countries because they are political opponents to those dictatorships and seek refuge in countries such ours, Canada. We have a tradition of providing refuge.

We also know that some of those countries are quite adept at forging documentation and have in the past taken out personal vendettas against their political opponents who have escaped their grasp. What guarantees do we have--

[The Acting Speaker, Andrew Scheer]

I apologize to the hon. member, but I do need to give the hon. member for Etobicoke North adequate time.

[Roy Cullen, Liberal, Etobicoke North, ON]

Mr. Speaker, I know that in the hon. member's riding, he has a large population of Muslim Canadians, as do I. In fact, I think my riding has the third largest population of Muslims in Canada.

Some of the Muslims in my riding are not very happy with my stance on these particular issues. However, I can tell the House that the mainstream Muslim community that represents the vast majority of Muslims in Canada, I believe, have told me the reason they came to Canada was to escape the kind of intolerant societies, the risk to their personal lives, the corruption and the violence that goes on in those countries. They want a country that is safe for them and their children.

I am not suggesting they would all agree with Bill C-3, and we on the Liberal side are not suggesting that the bill is perfect. However, in response to threats to Canada, I think it is a reasonable solution. Ultimately, it could be challenged in the Supreme Court and the Supreme Court will decide.

I should say that the subcommittee--

[The Acting Speaker, Andrew Scheer]

Resuming debate, the hon. member for Saint-Hyacinthe—Bagot.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Mr. Speaker, the bill was introduced following a decision handed down by the Supreme Court in February 2007, which stated that the procedure for the judicial approval of security certificates established by the Immigration and Refugee Protection Act was inconsistent with the Canadian Charter of Rights and Freedoms and, furthermore, that it was of no force or effect. First of all, I have serious doubts about five particular provisions of Bill C-3.

First of all, arrest without warrant is a serious concern to us. As we know, a warrant can be obtained very quickly if sufficient evidence is presented to a judge. Why is this not the case here?

Second, are security certificates really necessary? Yes, they are, in very exceptional cases. They should only be upheld if the individual is considered dangerous beyond any reasonable doubt. However, with this bill, reasonable doubt is sufficient grounds for the continuing detention of a permanent resident or foreign national subject to a security certificate.

My third concern is whether it is acceptable for the term of incarceration to be indefinite. People are sent to prison but not told how long they will be there, and that evidence is being gathered. Deadlines keep getting pushed back. We are worried about the fact that people can be detained indefinitely. The mere fact that indefinite detention is possible for subjects of security certificates seems extreme to us.

For how long can a society that claims to abide by the rule of law keep people locked up with no evidence that they have committed a crime? It makes no sense that in a free and democratic society, people can be detained without ever having been found guilty following a trial.

My fourth point is that special advocates are not given access to all of the evidence. We think it is important for a special advocate bound by solicitor-client privilege to have access to all of the evidence. Currently, they may be given only a summary of the evidence, but we think they should receive the evidence in its entirety. We think it is important for advocates to be able to defend the rights of an individual facing deportation.

The people involved should be able to select security-cleared advocates from the Minister of Justice's list. Is it not logical to ensure that special advocates have the resources they need to do their jobs? Special advocates should also be allowed to see their clients more than once so they can get additional information once they have received the evidence.

My fifth point is that, clearly, appeal procedures have to change.An appeal will only be allowed if the judge, having heard the government's and the special advocate's representations, upholds the order for removal or incarceration. If the individual cannot be deported, there can only be an appeal on a question of law or general interest raised by the judge. For the individual concerned, it is not very reassuring to know that the person confirming the deportation is the same one who drafted the notice of appeal.

I do not understand why the government went so far. A similar burden does not exist elsewhere in the law, at least not in our law. I still have a number of very serious reservations about Bill C-3.

[Alex Atamanenko, NDP, British Columbia Southern Interior, BC]

Mr. Speaker, I thank my colleague for his speech.

I would like to ask a question. I do not believe that the Canadian public really understands what a security certificate is all about. I would like my colleague to confirm one thing.

For example, my in-laws live in the United States; they are American. In theory, if they were to come to Canada and if they were suspected of wrongdoing, they could be arrested and put in jail without being given a reason and without having access to a lawyer. Is that true? Are security certificates a threat to us?

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Mr. Speaker, I would like to thank my colleague for his question.

Security certificates cannot be issued against Canadian citizens. However, they could be a threat to any visitor or anyone who has permanent residency but not citizenship, so any individual who was granted permanent residency by the government.

Any foreign national, any visitor or any individual living in or visiting Canada could be incarcerated with no access to a lawyer and without being told what evidence exists, if a security certificate was issued against this individual on our territory.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, it looks like that in the U.K., which has often been quoted as being a country from which we should learn. There was a special advocate with seven years of experience, Ian Macdonald. He quit over the failure of the government to address the problems of the system.

It seems to be that the advocate proposal that is part of the bill does not really address the whole issue. Does the hon. member have an opinion on whether the advocate system really addresses the whole question of the denial of human rights?

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Mr. Speaker, indeed, elsewhere in the world, people have access to a special advocate, for example, in England, where that is part of their code. It has been proven that this method is ineffective.

The Bloc Québécois believes that allowing a special advocate to visit the person being held under a security certificate, but not allowing the advocate to reveal all of the evidence, is not consistent with the law in this country. The advocate should be able to reveal all the evidence to the person being held under a security certificate.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, in Canada we have the Canadian Charter of Rights, a charter that makes us very proud. We talk about it with our friends who visit us from other parts of the world. It is one of the reasons that a lot of immigrants come to our country. We are mighty proud of the Canadian Charter of Rights.

In the Charter of Rights we give every person in Canada the same rights: the right not to be tortured, the right to be treated equally, all rights under the law that are basic fundamental rights. The charter is supposed to protect every individual in Canada, which means that if Canada does not tolerate torture then we do not want to see torture in other countries.

Bill C-3, regarding security certificates, treats people as two kinds of human beings. One kind is Canadian. The other kind is everyone else who may be subjected to a security certificate. A person, for whatever reason, could be given a security certificate without the person having any idea what the Canadian government has against him or her. It is supposed to be a national security issue.

In Canada, one would think that people who commit a crime would be charged and, if convicted, they would go to jail and be punished. Actually, the security certificate in Bill C-3 sets up a second class of human being. They will not be charged nor convicted. They will not be jailed nor punished.

I keep hearing the Conservative government and the Liberals saying that they want to be tough on crime. If they want to be tough on crime, why are they not punishing people who are supposed to be criminals? What are we doing with them? We just deport them back to their own country.

If they are real criminals, why do we want them to be deported elsewhere? They may be terrorists and we are supposed to be having a war on terror. If they are terrorists, rather than charging and jailing them here in Canada and keeping them under lock and key in a place that is secure from the rest of the world and from Canadians, we deport them back to their home country.

If people are real terrorists and they are set free in their home country, they could wreak havoc in their home country. They may even come back to Canada and who knows what will happen. I thought we were supposed to be tough on criminals.

How does deporting a person from Canada make Canadians safe? I do not know. Why are we afraid of the truth? What does the Canadian government have to hide? Are we seeing a pattern? Why are we keeping the offence hidden from Canadians and from members of Parliament? We do not know, Canadians do not know and the lawyers do not know what kind of offence was committed. The person detained has no idea what kind of offence he or she is being charged with.

What is the minister afraid of? Why will the government not tell Canadians the truth: that it believes the person is a security risk and that is why the person will be jailed and punished.

This kind of thing is a real problem. I will give some examples of people disappearing and people not knowing exactly what happened to them.

A story recently came to light about a gentleman named Benamar Benatta whose timing was really unfortunate. He came from New York City to Canada to declare refugee status just before the September 11 attacks a few years ago. I believe he was born in Algeria but left because he did not want to do what his country wanted him to do.

He joined the military at the age of 18, had some basic training, went to university and became an engineer. After graduation, he went back to the military and started teaching. He was uncomfortable with the military crackdown in Algeria after the 1992 general election so he decided to move to the U.S. However, because he spoke French he thought that rather than stay in the U.S. he would move to Canada where he would feel comfortable being in a bilingual country. He said, “I had the impression that Canada had protection for human rights. Hell, it depends what kind of human beings. If you are not Canadian you may not get protected”.

What happened? He came across the border, declared refugee status but was put into the back of a car and driven to the U.S. He was then jailed in New York where he was held with 83 other people who were high interest suspects of FBI investigations. He could not get to a lawyer. He said that he repeatedly had his head slammed against the wall, et cetera, and interrogated.

However, by November 15, 2001, the FBI decided that it did not have a case against him and officially cleared him from any connections to terrorism but he remained in detention.

After almost four and a half years, he was able to be finally return to Canada. I will not bore members with all the details, but it went back and forth. It was because of the good work of the Canadian Council for Refugees that he was able to get back to Canada. This person was a refugee claimant and, by the way, his refugee claim has been dealt with and he is now formally a refugee in Canada, so obviously he has a good case. This poor innocent man was in jail for five years because Canada was so afraid of people who may cause terror that the man was denied the basic fundamental rights that we accord every human being in Canada. We did not give him fair treatment, in my mind, and as a result he lost five years of his life.

Under this security certificate in Bill C-3, we will be sending people back to their home country. If they face torture that is fine with us. As long as we and the Canadian public do not really know what the charges are, perhaps we can say that we will be blameless.

That is not my definition of accountability, of being tough on crime, of being tough on criminals and certainly not my definition of being a proud Canadian.

[Alex Atamanenko, NDP, British Columbia Southern Interior, BC]

Mr. Speaker, it seems to me that over the last couple of years our country has been sliding away from being in the front to fight for human rights to kind of taking a back seat. We are not standing up for the young kid in Guantanamo Bay who has been there for three years. Some of us parliamentarians have had to sign petitions in the hope that someone does that work on our behalf.

Right now we are saying that if someone is a terrorist we will just send them back or round them up. I will use the example that is kind of humorous. If my in-laws were to come to Canada they could theoretically be rounded up and put in jail because of these security certificates.

What will happen to Canada if the bill does not go through? Will we be in danger from terrorists?

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, if we do not use security certificates, it will mean that someone who is not a Canadian citizen, not a landed immigrant and is here either without status or trying to declare refugee status or landed immigrant status can be deemed to be a suspect of committing a crime. If we truly believe that his or her presence in Canada will jeopardize our security or our national security, let us get the proof and let us make it public so Canadians know what kind of people we have in Canada. We will then collectively, through the courts, which we have faith in, say to this person that we believe he or she is a problem and we will put the person in jail. However, if the person is innocent, we must let them go free and allow them to stay in Canada. If the person is not qualified under the refugee immigration process, then the person will be deported in any event.

However, I must say that refugee claimants should have a chance for an appeal. The House of Commons has said over and over again that we should implement the refugee appeal division of the Immigration and Refugee Board but we do not have such a body, which is not fair.

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

Mr. Speaker, I want to begin by making a statement, which is that suspicion is not guilt.

This past summer I had the occasion to travel to Edmonton to speak to some new Canadians and then some well-established Canadians from the Muslim community.

I was sitting with a gentleman who had been in Canada for 30 years. He had been a contributing member to the society in Edmonton for 30 years and was well respected in his community and in the broader community. He was telling me how, following 9/11, investigative officers from CSIS would drop by and speak to him about all the money that he was sending home, the money he had been sending home for 30 years to raise the standard of living for his family in his homeland, a commitment that we would all do.

In fact, I myself celebrated an anniversary recently of 40 years moving from New Brunswick to Ontario. In some people's minds that is like coming to a new world, at least it was in the sixties. Some of the good Canadians from the east coast would send some of their money back home in the same way. I was never questioned but perhaps I was fortunate that it was a different time or that I had different colour skin than the other gentleman.

What is happening to us as a country is a tragedy. It is an affront to our democratic processes that has occurred in the reaction that has followed 9/11. It has followed the Americans' approach to 9/11 and the Americans' fight on terrorism.

I rise to speak on security certificates, but I wish to heaven I would never have to do this again. I believe, along with the rest of the NDP caucus, that Bill C-3 continues to fail Canada and Canadians.

Canadians are not more free because of Bill C-3 and they certainly are not feeling any more secure. Furthermore, the NDP opposes Bill C-3 because, as we have heard repeatedly in this place, there are already measures in our Criminal Code to deal with the activities, 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 the presentation of evidence that would support the accusations against a person who is accused or suspected of terrorist activity. Instead, the security certificate simply removes the individual from Canada and in doing so, in my opinion and as expressed earlier by the member for Trinity—Spadina, it fails Canadians. If the individual is actually guilty, then a process should be enacted in this country to deal with that guilt.

A security certificate does not offer or support justice for either the accused or for Canadians. In fact, security certificates in themselves are an affront to Canada's national sense of what justice is. If the accused is guilty, the person should be charged and tried under our Criminal Code and the appropriate penalties applied and then the person should be deported, but not held in detention without the opportunity to face his or her accusers or see the evidence against him or her.

There is another side to this. The people in detention who proclaim their innocence and have not had a chance to speak to it in a court of law, the day comes when they are found to be innocent. If they had gone through our Criminal Code procedures, our courts, our justice system, they would have had a right to return to Canadian life, to pick up where they had left off, pick up the pieces. But they have spent years upon years in detention and again they have not been able to see the evidence against them, to refute the evidence, the most fundamental tenets of our justice system. That has put a chill through our country.

I alluded to the individual in Edmonton, Alberta, but there are more cases than that individual. Talk to Mr. Almalki who was detained in a cell which was more like a coffin for three months. We all know the case of Maher Arar. We all know when we fail, and we are setting ourselves up for failure again.

I am pausing because I tend sometimes to get a little emotional. I was raised to take great pride in our justice system, the fact that people can face their accusers and walk away. I am going to be speaking later today about a family incident and I will give a small piece of it here to make the point of what I understand is our justice system.

My sister was strangled to death as a 10-year-old child. My father was mistakenly accused of that crime. We were a poor family. A great fear went through us that we would not be able to save my father from those accusations. Later he was proved to be innocent and there was a mentally disturbed person in the family who was dealt with and spent time in an appropriate hospital following that. Let us consider for a moment the place we are putting people, where they cannot face their accusers and they cannot refute the evidence, and how terrible that is.

From time to time I will do my best to take a breath, but it is so 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 if we gerrymander process, to put in place a process like this that is so ugly and disgusting. I cannot understand how anybody in this place could support it.

Our Criminal Code is among the best. Our justice system is among the best in the world. Canada will send people to other parts of the world to teach them our justice system. We should keep that pride. One of the few ways we can keep that pride is to ensure individual rights and the rights for people to face their accusers and the evidence against them.

For the NDP, the security certificate is an affront to civil liberties. There is a sense in my gut of how wrong this is that I just cannot put it aside.

We understand with Bill C-3 that the Conservative federal government is trying to address a flaw in the process that was pointed out by the Supreme Court. It is far more than a flaw. What it is trying to do today is move around something that was a violation of our Charter of Rights and Freedoms.

We should think about rights and freedoms for a moment. We should think about the fact that there are individuals detained in our country. Their freedom has been taken away and they have no rights. We have a Charter of Rights and Freedoms.

Imagine the setting aside of well respected, fundamental terms of justice and how that was so cavalierly done. The detainees have not seen any of the critical evidence against them. Their legal representation has not seen the evidence against them.

Let us just say that tomorrow, for whatever reason, it is deemed acceptable that they return to Canadian society, that there had been an error. They will always be besmirched by the fact that they have been detained. They will always live beside neighbours who doubt them. If they returned to their country of origin, many of the countries those folks would return to are countries where we know torture is committed. It is time for our country to take a strong stand for the liberty, for the human rights of our citizens and guests in our country, as well.