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

[Roy Cullen, Liberal, Etobicoke North, ON]

Mr. Speaker, I appreciate the emotion the hon. member put into his remarks. One of the things that I think he got wrong is that security certificates have been around for about 30 years. In fact, they were brought in during the Trudeau era, the same prime minister who brought in the Canadian Charter of Rights and Freedoms. They are not a new vehicle. In fact, Bill C-3 and the work of our subcommittee and the decisions of the Supreme Court are actually going to lead to improvements in the process.

I will never forget a meeting we had of the Subcommittee on Public Safety and National Security when we were reviewing the anti-terrorism legislation. Someone from the Department of Public Safety and Emergency Preparedness brought forward a briefing document that was a dossier on someone who was being detained under a security certificate in Canada. The dossier had to be blanked out for the sources of information, but it was a chronicle of the charges that were made against an individual as to why the individual was being detained under a security certificate.

There was also someone from the B.C. Civil Liberties Association on the witness panel.

There is another misunderstanding people have. A person detained under a security certificate understands fully why he or she is being detained. What the person does not know are the sources of the information. It is the role of the judge to make sure that that information is corroborated and reliable and not the result of torture. That is why the special advocate process will improve that sort of process.

When this dossier was presented to the subcommittee, I recall asking the member of the B.C. Civil Liberties Association if he would like the person being detained under a security certificate to be his next door neighbour. This individual, who is someone from a civil rights organization, said no. I asked him what the problem was and he replied that the problem was the process.

That is why we are here today debating Bill C-3. This bill will improve the process. Will it be a perfect solution? Of course not. Our primary responsibility as parliamentarians is to protect the safety and security of Canadians. There is no perfect balance between dealing with those responsibilities and protecting the civil rights of Canadians.

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

Mr. Speaker, I certainly take the hon. member at his word for the process he was talking about and the information that was provided. I agree with him that the certificate has been around for 30 years, but its intent has been misdirected. That certificate was never intended to be used in cases of terrorist activity.

Our party is very clear. We still believe that within the Criminal Code of this country there are mechanisms and resources that we can turn to to deal with this.

Individuals are not being told what the evidence is against them. The question of facing their accusers and national security could be addressed in another manner. Very clearly, it is important that people and their legal representatives be allowed to see the evidence and that they be allowed the opportunity to access the most fundamental aspect of justice, and that is to face their accusers and to defend themselves against what may well be false allegations.

There are many times that people in the U.S. have been rendered to other countries. We know that in the justice system in the U.S., many times people are imprisoned because they are poor and they cannot afford proper representation. As I alluded to in my remarks earlier, my family faced such a thing. It leaves a mark.

I will not call into question the motivation of any member of the House. I am sure members are giving their best judgment. I just ask them to err on the side of caution and the side of justice.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I am glad to have the opportunity to speak this afternoon in this debate on the report stage amendments 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. I was pleased to second the amendments put forward by my colleague, the member for Surrey North, on behalf of the NDP caucus today.

It is a somewhat controversial process to suggest that all the clauses of this bill be deleted, but it is a way for us in this corner of the House to show our very serious concerns with the legislation, to show our fears that this is the wrong process to protect Canadians, and to ensure fundamental justice in Canada. In the traditions of this place, putting forward those kinds of amendments is one way of showing that kind of deep concern.

The security certificate legislation is a feature of our Immigration and Refugee Protection Act, but my fear is that we are now using it essentially to prosecute very serious criminal matters, and in fact some of the most serious criminal matters that could face our society, those being terrorism, espionage and threats against the national security of Canada.

What this is saying is that we are prepared to use this lesser immigration process, which is essentially an expedited deportation process, to ensure that dangerous people are kept off the streets in Canada. It seems to me that this is short-circuiting our criminal justice process, especially when it comes to very serious crimes such as terrorism, espionage and threats against national security.

If there is a time when those crimes should be prosecuted, and prosecuted vigorously, it is when we have information about people who are present in Canada and participating in any of those kinds of activities. We should be ensuring that they are charged, prosecuted, convicted and then punished for those activities, but we should be doing it according to the principles of our justice system.

We should not be trying to short-circuit those very basic principles. I think that is what we are doing by using what I believe is a lesser provision of law in the Immigration and Refugee Protection Act to indefinitely detain people who have not been charged or convicted of any crimes and to deny them access to the evidence that is presented against them. They do not have the ability to fully test what is being presented and is leading to their continued detention.

Currently, post-September 11, this is being applied to six people in Canada, five of whom are Muslim men. I am very concerned that these men have had very serious allegations and accusations levelled against them, accusations that will follow them for the rest of their lives and make it difficult for them wherever they live, here in Canada or in any other country. Once people are labelled as suspected or accused terrorists, especially in the current world climate, their lives become very difficult.

Given 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 some lesser process. That is why I am fundamentally opposed to this legislation.

I would like to see us repeal the provisions of the Immigration and Refugee Protection Act relating to security certificates. If there is a problem with our criminal law such that we are unable to prosecute people accused of these very serious crimes, then we should fix those problems in our Criminal Code to ensure that this kind of prosecution can take place.

I am also concerned that if the security certificate process went through to its logical conclusion, these people could be deported to countries where their lives would be in danger or where they might be subjected to torture. Canada must never deport someone to torture. We should never deport people when we have reason to believe that they will be killed once they return to their countries. We have a responsibility in that matter. Ultimately, the security certificate process allows us to avoid those kinds of responsibilities. We must never deport someone to torture.

I have to reiterate that using the security certificate process as provided in our immigration law is a lesser process that does not meet the important and longstanding traditions and standards of our criminal justice system. The appropriate way to deal with these very serious crimes is under the Criminal Code.

Of the five Muslim men who are currently the subjects of the security certificates, Hassan Almrei is the only detainee now being held at the Kingston Immigration Holding Centre. “Holding centre” is a nice way of describing what it actually is. It is a maximum security prison within a maximum security prison.

It is a maximum security prison located within the walls and the fences of Millhaven maximum security penitentiary, so it is not exactly a picnic of a place to be. I have been there on several occasions. It is a very difficult place. To be detained there indefinitely is I think a very severe penalty for anyone, especially someone who has never been charged or convicted.

Mr. Almrei is the only prisoner there. I believe that raises serious issues of solitary confinement, which we have to struggle with in this place and in our justice system. I do not think it is ever appropriate to hold someone in solitary confinement for a long period of time. Now that Mr. Almrei is the only prisoner there, that is the situation he faces.

The other four men who have been released on very strict conditions, Mohammad Mahjoub, Mahmoud Jaballah, Adil Charkaoui and Mohamed Harkat, are living with very difficult requirements. There are very severe restrictions on their lives and the lives of their families.

The reality is that those four men have been released from detention because they have family members who have been willing, on behalf of Canadian society, to act as their jailers. I think that is a very difficult proposition to put to any family member: that on behalf of Canadian society they should have to be responsible for one of their loved ones 24 hours a day, seven days a week, to make sure they remain in custody and meet these very rigorous conditions.

The effect on the lives of those families is very severe, and again, when their loved one, their father, brother or spouse, has never been convicted of or charged with a crime in Canada. These are very severe restrictions and we see how difficult it is for these families. We have seen just recently how Mr. Harkat has been arrested for an alleged breach of his release conditions. We are waiting anxiously to hear the outcome of his hearing today.

In a sense, I believe that those conditions have been set so strictly so that they will fail. It is hard to imagine how anyone could live under those conditions. It is a testament to the strength of the relationships in those families that they have been able to hold those families and those relationships together given the conditions that they are required to live in.

I am very convinced that this legislation violates some of the fundamental tenets of our justice system and that it uses a lesser mechanism in immigration law to deal with one of the most serious criminal issues that could face our society, that being terrorism or threats against our security. That is why I strongly will be voting against this. I am glad that the New Democrat caucus in this Parliament will also be voting against it.

[Roy Cullen, Liberal, Etobicoke North, ON]

Mr. Speaker, for the member opposite, in this whole discussion the factor that seems to be missing is the whole question of sources of information that Canada relies on for national security purposes.

This information comes from a variety of sources. It comes from agencies all around the world. There is an exchange of information. If this information were to become public, then of course those agencies and foreign countries would no longer give information to Canada. That would be an unfortunate development because a lot of that information is useful for our national security purposes.

The way the process goes is that under the current regime the government goes to a Federal Court judge and makes the argument on the information of CSIS, the RCMP, the Department of National Defence or other agencies. I note that a Federal Court judge does not get there because he or she is a rookie or does not have any experience or is just out of Osgoode Hall Law School. These judges have been around for a while. They are charged with challenging the credibility of the evidence being put forward.

Is the evidence corroborated? Is it reliable? Has it been derived from torture? That is the job of the Federal Court judge. What this bill is doing is actually enhancing that process, because a special advocate will actually pursue those questions quite vigorously on behalf of Canadians and on behalf of those who might be detained under security certificates.

To say that people do not know why they are being detained is not right. They know why they are being detained. They do not know all the sources of the information.

I would like to know from the member how he would deal with the question of sources of intelligence that are important for our national security interests if they got onto the floor of a court or into the public domain.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, the reality is that Canada's Criminal Code does deal with that. If a Canadian is charged with these kinds of crimes, there are mechanisms which accommodate exactly that. We do not need a special process like this. Those mechanisms already exist in the Criminal Code of Canada. We can see that right now, because there are Canadians charged with these kinds of crimes and those processes are in court. Those kinds of issues will be dealt with by the court as well.

To say that we need this lesser process to deal with people who are not Canadian citizens I think is a very flawed thing. To say that we need a separate system of justice or a lesser system of justice for someone who is a visitor in our country or is a permanent resident I think violates the charter at a very fundamental level. It certainly violates my hopes for what the charter might mean to someone who is present here in Canada.

I am someone who believes that the charter should apply to anyone who is here in Canada and that what is good for a Canadian citizen should be good for any of our brothers and sisters around the world, that we should respect that hope with all of those people. I do not accept that we need a separate process to deal with that.

I also do not accept that the special advocate in any way will address the problems of hearing secret evidence. We have seen that it has been a flawed process in Britain and in New Zealand. We have seen many recommendations made by experts in Canada about what a special advocate process might look like here. Unfortunately, the government chose not to implement any of them in the legislation it brought forward. It had that possibility and it had the studies for a long time, yet the bill that was presented here did not reflect any of that wisdom.

Some of the special advocates in other jurisdictions in Britain have said they have had to leave that work because all they were doing was adding a veneer of respectability to a very flawed process. I do not want to put a lawyer in Canada in that position. I think that is why the government has had to extend the deadline for applications for people who wish to be special advocates in Canada: because lawyers in Canada are unwilling to participate in that kind of flawed position. It is a flawed position that the Canadian Bar Association has said is likely to be held unconstitutional, so here we are debating a law that is going to end up back in court and which is likely to be rejected again according to many of the experts who appeared before the committee.

I do not think that is an acceptable process. We need to be clear about what our hopes are for our justice system. We need to be clear about protecting the principles of that justice system that has been established over hundreds of years and that we have fought hard and long for in this country. I believe this legislation flies in the face of that experience and that tradition. That is why I will not be supporting this legislation.

[The Acting Speaker, Royal Galipeau]

Is the House ready for the question?

[Some hon. members]

Question.

[The Acting Speaker, Royal Galipeau]

The question is on Motion No. 1. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

No.

[The Acting Speaker, Royal Galipeau]

All those in favour of the motion will please say yea.

[Some hon. members]

Yea.

[The Acting Speaker, Royal Galipeau]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Acting Speaker, Royal Galipeau]

In my opinion the nays have it.

And five or more members having risen:

Call in the members.

And the bells having rung:

The recorded division on Motion No. 1 stands deferred until Monday, February 4, at 6:30 p.m.

The House resumed from January 31, 2008, consideration of 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 reported (with amendment) from the committee, and of the motions in Group No. 1.