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.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons and Minister for Democratic Reform]

Mr. Speaker, 2007 has been a great year for Canada and a great year for the House of Commons.

Next week is the last week of the fall sitting and the last week before the new year. The sitting and the year have been extremely successful for the federal government, as we have introduced legislation in all of our priority areas and have delivered results for Canadians.

However, since we have only a few sitting days remaining this year to address important tax cuts, security issues and other priority bills still pending, Canadians are expecting us to work very hard in the coming days to produce results for them.

We want to see our priority bills passed in this House and sent to the Senate so that they may become law before Christmas. As a result, next week will be 2007, a year of results week.

We plan to build on our past achievements by debating and passing the budget implementation bill, which would lower taxes for all Canadians by reducing the GST to 5%, as well as by bringing in tax cuts for individuals and corporations.

We will debate Bill S-2, An Act to amend the Canada-United States Tax Convention Act, 1984, which must be passed by Parliament before January 1 to ensure that it is implemented and we can benefit from that.

We will also debate our railway transportation bill, Bill C-8, and our bill on the settlement of international investment disputes, Bill C-9. Both bills will help create jobs and provide economic certainty for Canadians.

Our government will continue to show Canadians that we are serious about tackling crime and strengthening the security of Canadians. Next week, we expect that our security certificates bill, Bill C-3, will be reported back from committee. The bill will then be debated at report stage and third reading. We hope the hon. members of the House understand the importance of passing this legislation so that it may be considered and passed by the Senate before the deadline imposed by the Supreme Court.

We will debate any amendments made to our Bill C-13 on criminal procedure, currently being examined by the Senate.

Speaking of the Senate, the government hopes that the tackling violent crime act will pass the Senate so Canadians can feel safer over the Christmas holidays knowing that the bill has been enacted into law.

Canadians also expect their institutions to be more accountable and democratic. We have built a record of results on this file as well, with the passage of the Federal Accountability Act and Bill C-31 to improve the integrity of the voting process. Next week we will continue with our plans in this area by debating Bill C-29, which closes a loophole in our campaign financing laws that Liberal leadership candidates used to bypass campaign contribution limits last year.

We would also like Bill C-6, on the visual identification of voters, and Bill C-18, on the verification of residence, to be sent back by committee. It is important for these bills to become law, so that they can be implemented in time for the next byelections.

Tomorrow I will also seek consent to send Bill C-30, the specific land claims bill, to committee. This bill to create certainty and allow land claims to be resolved more quickly is a welcome addition and the country will be better off the sooner its process is put in place.

This year, 2007, has been an excellent year for Canada. Our economy is booming, the country is united and there is integrity in government.

We have achieved a lot this year. Our government has delivered real results for Canadians in 2007 and will continue to do so next week and in the new year.

[Roy Cullen, Liberal, Etobicoke North, ON]

Thank you, Mr. Chair.

Thank you to the witnesses, especially to Mr. Harkat and Mr. Charkaoui.

The government has used security certificates sparingly over many years, but the reality is that the times it does use them it affects individuals like you in a very fundamental way, and I appreciate your coming here today.

I know you're opposed to Bill C-3 and security certificates, but one of the items being proposed regarding the special advocates is that if this bill passes in some form, a special advocate will have a chance to challenge the information that is presented by CSIS and RCMP and other sources. I know there's a debate around how complete and effective that could be, etc., but at least that would happen.

I know you're fighting this because you want to clear your names.

Mr. Harkat, in the brief you distributed, it says that “recent information about the human rights situation in Algeria make it clearer...that even his deportation to that country would be to send him to torture”.

I think, Mr. Charkaoui, you're saying the same would be true if you went back to Morocco. I know, Mr. Charkaoui, you're saying that CIC said this based on whatever intelligence or lack they had.

But what would be the motivation for the authorities in Algeria or Morocco to torture you if you went back to your respective countries? Torture normally is to punish someone or to extract more information. What's your sense of why they would cause you harm if you went back to your countries of origin?

[Sameer Zuberi]

Perhaps I could reply very quickly.

Mr. Dosanjh said previously that Care Canada doesn't support Bill C-3 but is proposing amendments. As it is right now, we don't support Bill C-3 and we stand strongly against the security certificate. We think criminal legislation is a standard that should be there, that should be put in place. If you want to keep it under the Immigration and Refugee Protection Act, insert criminal legislation standards into that act so these men can know what they are up against and can defend themselves, as we can, in an open court. That's what our position is.

[Penny Priddy, NDP, Surrey North, BC]

Thank you, Mr. Chair.

Thank you very much, everybody, for being here this morning, and to your families who are in the audience today.

I always do this at the beginning, just to put some context around the questions I ask.

The NDP, as you may know, is not supporting this piece of legislation because we think there are certain violations of democracy that are inherent in Bill C-3. And even with special advocates and all the things that people have talked about, I don't think it in any way does away with what those basic foundation pieces of democracy are.

I would like to ask just a couple of questions, though, if I might.

I'd like to know this, either from Mr. Harkat or Mr. Charkaoui. When you've travelled in other countries, and you obviously have, have you in any way run into a set of circumstances, probably not the same as this but similar to this, in which people accused you of nefarious activities because you were travelling or accused you because you'd been previously in a certain country, and your passport said that?

[Adil Charkaoui]

Thank you for your question. There is no doubt that Canada, like every other country in the world, has to protect itself from terrorism. That is why we have laws like the Anti-Terrorism Act and the Criminal Code. It is equally clear that Canada, like any other country in the world, has the right and even the duty to control immigration. It has the right to refuse foreigners the right to enter Canada. We are not talking about immigration or terrorism, however; we're talking about how the Anti-Terrorism Act is used, an Act that contains no oversight mechanism or counterweight with respect to deporting people and combating terrorism. That is the problem with security certificates, and that is why the Canadian Bar Association, the Barreau du Québec, Amnesty International and all these groups are opposed to Bill C-3. And that is why we intend to challenge it before the Supreme Court of Canada. It's the use…

The Supreme Court ruling was clear: in order for security certificates to be constitutional, they must, at the very least, be associated with a fair trial. What is a fair trial? I believe many of you are well qualified to determine that, and are even lawyers. If we're talking about a fair trial, the first thing is to have access to the evidence against you or be able to test or challenge it. It means being told of the allegations.

Let me answer your first question: how can Bill C-3 be improved? If it were up to me to choose, there would be no Bill C-3. The criminal law, which applies to everyone, already exists. If we want to improve it, we must first resolve the matter of the evidentiary standard. Second, we have to look at the quality of the evidence. It can be obtained under torture. In such cases, that is not evidence. The use of the term “evidence” is also a sham. This is intelligence, not evidence. There is no evidence against me; there are only CSIS reports.

Third, there is the definition of “terrorism”.

[Christian Legeais]

The best way to improve the security certificate process would be to ensure that it is consistent with fundamental justice and international standards of justice. That is the first change that needs to be made. But, Bill C-3 does not do that.

I am having some difficulty answering your question because it really is not up to us to make improvements to a system that persecutes people like Mohamed Harkat, Adil Charkaoui, Mohamed Mahjoub, Mr. Jaballah and Hassan Almrei. That is not our role as a committee. However, I did list a number of areas that we find unsatisfactory or unacceptable in Bill C-3, and you should make amendments in all of those areas.

We could talk about any of the transitional measures set out in the Bill. They legalize indefinite detention. That should be changed. Persons named in a security certificate should be released.

The appeal process that is proposed is a truncated and incoherent one. The judge who upholds the reasonableness of the certificate would be the one determining what avenues of appeal are available. That has to be changed. A real right of appeal has to be provided.

Bill C-3 perpetuates the threat of deportation to torture, disappearance or death. Bill C-3 should state in no uncertain terms that no person can be deported to a place where he or she could disappear, be tortured or be killed. International law makes that clear, but Canada has opted for a made-in-Canada solution which makes that legal.This is not a conceivable or acceptable balance.

The evidentiary standard for security certificates remains the same—that is, reasonableness, which is the lowest standard. The criteria laid out in the Criminal Code should be adopted instead, and the persons named in a security certificate should be entitled to a fair trial.

The fact that the evidence can be secret in no way prohibits the use of information or evidence obtained through torture. The legislation should say that this is unacceptable. There are many other such elements here.

The special advocate is not allowed to speak to anyone without the authorization of the judge. He can be removed by the judge. That has to be changed. Give this individual a lawyer. I don't think Federal Court justices will accept the special advocate concept. They refused it in the case of Mohamed Harkat. Judges believe they have the required competence and jurisdiction and see no need for the addition of another independent, more competent individual. With this system, we have an independent judge and an independent advocate who will decide on information provided by an incompetent agency. Where is the logic in that? Get rid of that.

Those are the main points that stand out from a quick review of Bill C-3.

As I already said, the Supreme Court ruling basically asserts that security certificates are unconstitutional. Indeed, that is the perception of the people of Canada. Now the government comes along and introduces legislation that proposes the exact same system that is currently in place, with a few minor changes.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Thank you.

Thank you all for being here, particularly Mr. Harkat and Mr. Charkaoui, and of course the others as well.

What I'm hearing from all of you, essentially, with the exception of Mr. Zuberi, is that you don't believe we should proceed with Bill C-3. So it may be irrelevant for me to ask you what changes you think we should make to Bill C-3, but I'm going to do that nonetheless, because this is the bill the government has proposed, and because this is the bill we have to make an effort to make better if we can. So all of you can perhaps answer the question of how you would like us to change this bill in one or two or three or four ways.

I know you talked about the special advocate. How is that going to be put together? Who is going to put together the roster? You want to talk about the choice of counsel and whether or not you should have the freedom. I understand that within the roster, the detainee may have the freedom to choose one of the roster. I'm assuming the roster is going to be put together with CBA and others participating, so there will be some independent process.

I would really like to hear from you as to what you think are the two or three or four things you'd like to change that might make this legislation better. Otherwise, we could argue back and forth and try to find out what happened in your situations. That would take a long time, and we don't have that kind of time.

[Adil Charkaoui, Coalition Justice for Adil Charkaoui]

Good morning. I will be speaking French.

I would like to begin by thanking you for giving me this opportunity to address honourable members of the Committee. Before I actually discuss Bill C-3, I would like to introduce myself. If you read the CSIS report, you will see that I am depicted as a monster, a dangerous terrorist, a member of al-Qaeda, someone that needs to be controlled, handcuffed, and placed in a cell, a cage. Those comments are ones you may have heard over past months and years.

I am truly delighted to have this opportunity to give you the other side of the story. Indeed, if you only believe what CSIS is saying, with all the propaganda that is out there against the Muslim community, and particularly immigrants who do not benefit from the full protection of the Charter of Rights and Freedoms, there is the possibility that abuse can occur, as the Supreme Court stated, in its ruling on the Charkaoui, Harkat and Almrei case.

I was born in Morocco in 1973 into a family with two children; I have a sister. In 1995, we decided to immigrate to Canada—my father, my mother, who live here, and my sister. For me, Canada has always been a dream: the dream of living my life in French, because I am Francophone, and living in a multicultural country that respects the Charter of Rights and Freedoms and the Universal Declaration of Human Rights. In Morocco, I studied French literature. So, I am a supporter of the values embodied in the French Revolution.

When I came to this country, I did not expect to be treated this way. I was treated like an animal, a savage, which I am not. We arrived here in 1995 and I began studying French literature at the University of Montreal. I was here, not as a Canadian citizen, because I did not yet have that status, but as a permanent resident.

When Mr. Stockwell Day stands up and asserts, at every possible opportunity, that we are foreigners, terrorists and dangerous people, that is absolutely false. It's propaganda. I am not a terrorist. I have never been charged with anything under the Criminal Code. I have never committed a crime. Mr. Stockwell Day's allegations are therefore false. I am an honest citizen and I have nothing to reproach myself with. If the government claims—and I'm talking about CSIS—that I am a terrorist, well, they have the courts. They can charge me and introduce their evidence.

In 1995, I arrived here with my parents dreaming of a better world, of a country where I could live and build my future. Today I am married, with three children—two girls and a boy—who are all Canadian. My parents are Canadian. I am a permanent resident. I am not a foreigner; I did not land in Canada by parachute; I was selected. I demonstrated that I had no criminal record: Interpol did an investigation. So, when I came to Canada, I did not come as a dangerous enemy, but rather, as a permanent resident.

I completed my university studies and began to work as a teacher. I applied for Canadian citizenship in 1999 and attended a security interview in the offices of Immigration Canada.

What is striking is that I am here today speaking to you as members of the Standing Committee on Public Safety and National Security, and not the Committee on Immigration. What the security certificate tells us is that there have to be two systems: one for immigrants and the other for citizens.

This legislation, Bill C-3, really changes nothing, other than making a few cosmetic changes, such as adding the special advocate, who will not have solicitor-client privilege and will not be able to defend me—really just a clown. As far as I'm concerned, the special advocate is a clown. As I see it, there is no circus and no clown. I don't want a circus; I simply want a fair trial.

When I got to the offices of Immigration Canada, I was asked to go up. I met with CSIS. I was asked questions about my religion, my prayers and the mosque. I am not a fundamentalist, I am not an extremist, but I was asked questions about my values, what I thought of the Palestinian conflict, and what I thought of Saddam Hussein. Those questions have nothing to do with Canadian citizenship.

I told them that I was not a terrorist and that I thought Palestine was occupied. Indeed, that land is actually referred to as the “occupied territories”. I told them that I was against terrorism and violence.

In 1999, I was asked to become a CSIS informant and rat on my own community. I refused. CSIS hasn't left me alone since. That was in 1999. It is now 2007, and I am still subject to retaliation from CSIS.

Unfortunately, Bill C-3 cannot protect me against CSIS's abuse, for several reasons.

I'm going to stop talking about myself now. I only have 10 minutes, so I didn't really introduce the Coalition Justice for Adil Charkaoui, which does excellent work.

I will move on now to Bill C-3.

When I was arrested, I was handcuffed and put in a six by ten foot cell. Fortunately, I was in Quebec—I have said this before and I'll say it again—because the other detainees were treated like animals in Ontario. They told me: “Mr. Charkaoui, we have evidence that you fit the profile of an al-Qaeda sleeper agent”. Those were the first allegations.

I was given a 400-page document. I went through it with a fine-toothed comb in prison; I read it and re-read it. My file contained ten or more biographies of Osama bin Laden, a document on how to build bombs, documents on speeches made by Saddam Hussein and a report on weapons of mass destruction in Irak. There were 14 pages about me. In those 14 pages, it stated that Mr. Charkaoui speaks several languages: English, French and Arabic; he is a university student, is studying for a Master's degree and would like to do a Ph.D.; that he is married—marriage is just a cover, as far as they're concerned; that he has a restaurant with his family to finance terrorist activities. But there is no evidence; just vague allegations. It also said that he had travelled to Pakistan. I didn't travel to Pakistan. I have travelled all over the world, but they talked about only one trip and ignored all the trips made to the United States, Germany, Spain and Egypt. They only talked about one trip. They also talked about people I don't know, with whom I have no contact whatsoever; their names were written. They started to talk about the Khadr family, people I don't know but whose names were inserted in my file for propaganda purposes—just to scare the judge.

Judge Simon Noël detained me for 21 months because I refused to testify. As far as I'm concerned, it's a travesty of justice. There is no justice when evidence is secret, when you're dealing with a certain amount of evidence and reasonable grounds to believe, and when torture is authorized. One of the so-called informants is Abu Zubaydah. Mr. Bush recently admitted publicly that he was detained at a black site—a secret CIA prison. How can his word be accepted? Up until now, the Canadian government has used it against me, even though the court temporarily rejected it. That was the first depiction of me. I had the profile of a sleeper agent.

When I was preparing to leave prison, they changed the allegations. They said that I no longer had the profile of a sleeper agent. Indeed, the Director of Sunni-Islamic Counterterrorism—I don't know his name because it's a secret, since he is a CSIS agent—testified before the court and stated that he had no evidence that Mr. Charkaoui was a member of al-Qaeda. After my release, I took a polygraph test four times to show them that I wasn't a terrorist. They changed the allegations and said I was a member of al-Qaeda. After my release, there was another change in the allegations against me. They said I was no longer a member of al-Qaeda, but that I had become a member of GICM, a Moroccan group.

So, every time I and my lawyers came forward with evidence, to show that the allegations were ridiculous, the government—and I'm still talking about CSIS, because we're not dealing here with the government or the RCMP, but rather, CSIS—simply turned around and changed the allegations.

In terms of the evidence I was given and that was made public subsequently…

[Sameer Zuberi]

My name is Sameer Zuberi. I'm with the Canadian Council on American-Islamic Relations. We are an Ottawa-based advocacy group that works nationally across the country, with representatives from Montreal to Vancouver. We have worked on a number of different issues, from the Arar inquiry to security certificates to, in Quebec, the reasonable accommodation issue. These are the types of cases we work on.

We work on a national level on campaigns that people know about, such as the certificate, and we also work on smaller, unknown campaigns and unknown cases that never actually go to the press.

I want to thank everybody in this committee for listening to us. I'm sure you have to spend a lot of time to do this all the time, and it's not necessarily an easy thing to do.

I also want to thank you for giving us the opportunity because I know that at first you wanted to go quickly through this, so that you could get the legislation enacted, which is a fair and responsible thing to do. I also want to thank you for taking the time to hear from us because, while there are serious concerns that we have as a council, there are also other individuals who have serious concerns.

I want to preface what I'm about to say by first saying that I believe we Canadians and Canada should be strong on terrorism. There is zero tolerance for terrorists, and we must prosecute them and ensure that such acts are not allowed to occur. That has always been our position.

At the same time, we cannot throw out human rights just because we are trying to find terrorists.

What we need to do, and what we are seeking to do, is to find a balance between finding people who actually do crimes and protecting the rights of individuals so that they are not thrown into jail when they have not committed any, or when we cannot prove they have committed something. I want to preface what I'm about to say with that.

We're here to discuss today the special advocate. We have looked at the case of security certificates historically as one that is very important for the Muslim community in Canada. It's one that today the Muslim community, which numbers 2% of this country, is very heavily looking at and is constantly aware of. We're watching it on a daily basis. If you talk about it with people on the streets, they know about it; it's something people are following.

What's happening in this room is important to people in this country. The statistics came out the other day that 20% of Canadians are foreign-born, and these 20% of Canadians look towards issues like the security certificate as a litmus test of whether or not the government listens to the concerns of newly landed people.

In terms of the certificate and Bill C-3, we think that the security certificate should have criminal standards. I'm not going to say that the security certificate should not be under the Immigration and Refugee Protection Act, but what I will say is that if we keep it under the Immigration and Refugee Protection Act, what we should look towards is inserting criminal standards within it so that people know what they're up against. We can keep it in the Immigration and Refugee Protection Act; that's just fine. But let's insert those criminal standards so that people can see the evidence against them. That is only fair.

I was sitting here the other day when Warren Allmand was giving his presentation, and he made a very valid point. He said we don't want to be deporting people who we feel are serious threats to other countries, because that in the end will not be responsible of us as Canadians, but will give our responsibility to the rest of the world. Because we now live in an increasingly global society, what happens here at home affects other parts of the world and vice versa; therefore, if we don't address the issues responsibly here in Canada, they may just come to bite us later on, in the future. We certainly don't want that.

The special advocate system does not resolve the question involving certificates of a two-tiered justice system, wherein we have two standards of justice, one for immigrants and another for citizens. This is certainly not fair; it is not equitable; it is un-Canadian. This is something that, if we in this room were subject to it, we would certainly not appreciate.

The special advocate amendments do not lead to a resolution of the questions on indefinite detention and deportation to torture. For us at the Canadian Council on American-Islamic Relations, these are two very valid points, two that we still need to look at and are of concern to us.

Indefinite detention cannot be allowed. It's something that is not just. And deportation to torture is abhorrent and is something that we, as Canadians, cannot allow. Why? Because people around the world look to us for standards in terms of how to create their own legislation. They look to us to see how they should be implementing their policies, and if we will allow deportation to torture, other countries will follow suit. They will follow our model.

Finally, I'd like to close on whether a point of evidence being brought forth in the security certificate process has been addressed responsibly in Bill C-3. Bill C-3 still allows for secret evidence to be brought forth. Yes, you now have another individual who comes and looks at the information. However, whether this individual can actually vet this information thoroughly is a major question. There is no back and forth process between the special advocate and the named individual. That is a concern. How can the special advocate actually see that the information is correct, sound, and accurate if he or she cannot dialogue with the named person?

What we saw in the Arar commission, with the most recently released documentation, was that national security claims were used to hold back embarrassing information that would basically have shown that national security agencies made a mistake. Who is to say that the special advocate process will not lead to the same sort of occurrence: it will be said that something cannot be released due to national security concerns only because it would embarrass CSIS or the RCMP if it were divulged to the public?

We saw recently the taser incident, which, while unrelated to security certificates, really showed that when evidence is brought forth openly and people get a chance to evaluate what's there, we can actually come to the truth. If this passenger had not taken his video camera and start recording, would we have known today that this person, the Polish man, actually did not fight back against officers? Maybe not. Maybe we would have accepted the story that was given to us. But now, because of the actual evidence having been brought forth and because of people seeing it, we were able to come to the truth. In the end, that makes us a better country and that makes us more responsible and better able to deal with the issues.

In terms of balancing human rights and the need to prosecute real, serious criminals, we must look at that seriously. But if we are really to eliminate terrorism in this country and around the world, we need to do so in a just and equitable way. Otherwise, we will not address the issues and we'll not be able to get to the heart of the problem.

I'll close on that. This is a very important concern for Canadian Muslims and for immigrants in general in this country.

[Christian Legeais]

As regards Bill C-3, our Committee sees it as an attempt on the part of the government to leave the impression that these changes to the security certificate process will make it fairer and consistent with modern standards of law enforcement and fundamental justice.

In the guise of protecting rights, it in fact does the opposite. It sustains the hysteria surrounding terrorism to provide for an exceptional power in the law and remove all opportunity for common rational discussion of the terrorism or security issue.

What is the specific nature of the problem? And how should it be addressed? We believe there needs to be a fulsome discussion on the reasons for abolishing the security certificate mechanism and the secret trials. Yet Bill C-3 retains the security certificate mechanism and, in some cases, makes the situation worse. It maintains the secret trials, secret evidence and the impunity of government-sponsored enforcement agencies, notably the political police force or CSIS. All of the condemnation and criticisms made by the Justice for Mohamed Harkat Committee with respect to the security certificate process in front of the Sub-Committee on Public Safety and National Security on September 21, 2005, and subsequently in front of the Standing Committee on Citizenship and Immigration on November 9, 2006, are still relevant, and I invite Committee members to read the record of those proceedings. We said at the time that the security certificate mechanism and secret trials are medieval instruments, constitute a violation of fundamental rights and have no place in a modern society.

Bill C-3 is presented as the government's response to the Supreme Court ruling in the Charkaoui, Harkat and Almrei case and as being warranted by exceptional circumstances, namely the need to combat terrorism. Not only does Bill C-3 not satisfy the Supreme Court's ruling in terms of the need to ensure consistency with several sections of the Canadian Charter of Rights and Freedoms, it betrays the very essence of that ruling: that these rights violations are not acceptable, are rejected by the people of Canada and are unconstitutional.

With Bill C-3, what we have been told is exceptional and isolated is now to become the standard. In addition to that, the impunity of the State and its enforcement agencies is also maintained, a course of action which is certainly not bound to ensure society's collective safety and security. We also note that Bill C-3 proposes the use of a special advocate, a mini version of the British model which was also designed to grant minimal rights and access to justice while getting around the principles of fundamental justice. This special advocate can speak to no one without the authorization of the judge. He is not authorized to speak to the person named on the security certificate and may be dismissed by the judge, thereby hampering his independence.

Furthermore, the use of secret evidence, if such evidence exists—because, so far, we have seen only allegations—is maintained. There is no prohibition on the use of evidence or information obtained under torture. The evidentiary standard with respect to security certificates remains the same: reasonableness, which is the lowest evidentiary standard in the Canadian system. Bill C-3 maintains the opportunity to make a decision based on information or intelligence, as opposed to evidence. Information or evidence that would normally be inadmissible in front of a normal court is admissible in this process. It perpetuates the threat of deportation to torture, disappearance or death.

The appeal process that is proposed is a truncated and incoherent process. A judge that sustains the security certificate will have the authority to indicate what avenues of appeal are open to the named person. The transitional measures introduced in this Bill legalize indefinite detention. It is clear that the new version of the security certificate process and accompanying secret trials simply preserves, completely intact, the system now in place. No right is strengthened in this Bill—quite the opposite. This attempt to reform the security certificate mechanism makes it clear that reform simply is not possible and that this medieval instrument must be abolished once and for all.

Thank you.

[Mohamed Harkat, Justice for Mohamed Harkat Committee]

Good morning. My name is Mohamed Harkat.

On December 10--Human Rights Day--five years ago, our nightmare started. After 43 months of detention without charge or access to the evidence, one year in solitary confinement, time spent in Guantanamo North, and one and a half years under house arrest under the toughest bail conditions in Canadian history, I am here to demand justice.

For the past 18 months, my wife and I have been imprisoned in our own house. We have surveillance cameras in the house. I wear a GPS tracking device. My wife or mother-in-law have to supervise me 24 hours, seven days a week. I've never been left alone in my house or in the backyard. All visitors and family members coming to our house have to be screened by CBSA. Our computer room is under lock, and I have a curfew. We have only three four-hour outings, and all outings are booked and pre-approved by CBSA at least 48 hours in advance. All mail and phone is intercepted. I am followed by two CBSA officers. And the list goes on.

My life has been nothing short of the worst nightmare, and yet I have never been charged with a crime. I don't know the evidence against me.

This grave injustice continues for my family and me. This is not the Canada I dreamed of. Today I am here to urge the Canadian government to give me a fair and open trial so that I can defend myself openly. I strongly believe security certificates won't take me anywhere. My hope for a fair trial died when Bill C-3 was created. This is legislation that will continue to violate my rights as well as the charter.

What little glimpse I did have of a hope for justice is now gone. This is the worst kind of injustice. All of the allegations against me have ruined our lives.

I'm outraged that my case is based on and tried on secret evidence. I am here today because I want all Canadians to know the truth. I want the truth to come out. I want justice. I deserve a chance to clear my name, and that's what other Canadians are standing for.

How long will I be submitted to this terrible treatment--inhuman bail conditions and mental torture--by the Canadian government?

I would like to ask each one of you to reflect on this new legislation and ask yourselves if you would like to be in my shoes. Would you accept this process? Would you put your lives in the hands of special advocates who can't communicate openly with you?

Why is there this two-tiered system? Why am I being punished even though I have never been charged with anything? I have never committed a crime.

Is the special advocate process good enough? It still means years of detention and does not give me equality in the eyes of the law when actual criminals don't need special advocates. Would you trust this system enough to put your lives in the hands of an appointed lawyer without choosing him or her?

I therefore urge the Canadian government to allow me a fair trial. My community, other organizations, and my family and I will continue to fight until justice prevails. As a human being in this country, I expect justice, and today I am demanding justice.

I would like to thank the committee for giving me this chance to speak.

[Christian Legeais, Spokesperson, Justice for Mohamed Harkat Committee]

Good morning. My name is Christian Legeais and I am a spokesperson for the Justice for Mohamed Harkat Committee.

My comments on Bill C-3 will follow Mr. Harkat's statement explaining the consequences of the security certificate process for himself and his family, as well as what we expected following the Supreme Court ruling in February.

Mr. Harkat.

[The Chair, Conservative, Garry Breitkreuz]

I'd like to call this meeting to order.

This is meeting number nine of the Standing Committee on Public Safety and National Security. We are continuing our examination 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.

We welcome our witnesses this morning. I presume that those who aren't here will show up in the next little while, but I think we'll go ahead and begin.

We have with us the Justice for Mohamed Harkat Committee. I'll ask you, gentlemen, to introduce yourselves. Then we have the Canadian Council on American-Islamic Relations and Coalition Justice for Adil Charkaoui.

The usual practice at the committee, gentlemen, is that we allow you an introductory statement of approximately 10 minutes, and then we'll have questions and comments from the people who are on the committee.

We'll ask the people for the Justice for Mohamed Harkat Committee to introduce themselves.

Gentlemen, you may begin.

[Alex Neve]

I think it is important that Bill C-3 is focusing on one particular aspect of how security plays out in the immigration system. There are various other ways, proceedings, and procedures wherein this plays out and wherein a lot of these same concerns about secrecy and adequate representation arise.

Then there are the wider concerns I've flagged, which are not addressed in either Bill C-3 or anywhere else in Canadian law, around those sorts of proceedings, either possibly leading to the deportation of individuals to situations where there's a serious risk of torture or to instances of an individual against whom there are quite serious allegations of criminality, be it terrorist criminality or involvement in war crimes or crimes against humanity, being deported and thus escaping justice.

Both of those should be of concern to us in our immigration system. We should not be contributing to injustice by sending people off to face human rights violations. We should not be contributing to a lack of justice by sending people off to face nothing.

[Julia Hall, Senior Counsel, Terrorism and Counter-Terrorism Program, Human Rights Watch]

Thank you, Mr. Chairman, and thanks as well to the entire committee for giving Human Rights Watch this opportunity to appear today.

I understand the committee is in the process of considering hearing additional witnesses, and of course we welcome that as well.

I'd like to just say, as a point of beginning, that Human Rights Watch endorses Amnesty International's basic concerns with Bill C-3, but I'd like to take you back a couple of years to Human Rights Watch's first foray into advocacy around security certificates. In an April 2005 report we recommended:

Repeal as a matter of urgency Division 9 (sections 76-87) of the Immigration and Refugee Protection Act (IRPA), providing for the use of security certificates authorizing the government to detain and deport, based on secret evidence presented in ex parte hearings and without procedural guarantees, persons determined to be an imminent danger to Canada’s security, including potentially effecting such transfers to countries where a person would be at risk of torture or ill-treatment.

We also noted at the time that although the IRPA did not expressly provide for indefinite detention without charge or trial of persons subject to a security certificate, the practical effect of the detention regime accompanying certification could result in just that: indefinite detention. If a judge determined that a person would pose a threat to Canada's national security and deportation could not be effected, then indefinite detention was, at that time, a possibility, given the loopholes in the law. Human Rights Watch called for closure of that loophole since indefinite detention without charge or trial is by its very nature arbitrary and in violation of international human rights law.

Many of these concerns were articulated in our amicus brief in the Charkaoui case, the decision from which struck down certain provisions of the IRPA as unconstitutional.

We appear before you today to comment on Bill C-3, the stated purpose of which was to remedy the deficiencies of the IRPA identified by the Supreme Court in Charkaoui. We deeply regret, however, that Bill C-3 does no such thing. In fact, the very same criticisms levelled against the IRPA prior to Charkaoui back in 2005 stand with respect to Bill C-3. The substantive and procedural deficiencies we identified in 2005 cannot be set right simply by adding to the mix a security-cleared third party in the form of a special advocate. Regrettably, under Bill C-3 a person subject to a security certificate still will not have access to the secret evidence upon which he has been labelled a national security threat or to secret evidence used to assess his risk of torture upon return. A person assigned a special advocate will not enjoy the benefits of an attorney-client relationship, making any communications between him and his assigned advocate vulnerable to disclosure. The government is still not expressly directed to disclose all evidence, including exculpatory evidence, in this case to the special advocate, making the claimed utility of such an advocate even more limited.

In the interest of full disclosure, I served as an expert witness before the Special Immigration Appeals Commission in the United Kingdom in the case of Abu Qatada. I was there serving as an expert on returns to the risk of torture and the use of diplomatic assurances, or, what they call in the United Kingdom, memoranda of understanding. I personally witnessed more than once special advocates in that case complaining to the judge in open session that the government had not fully cooperated with disclosure requests that had been lodged months prior, at which point the Chief Justice, Judge Ouseley, would call the session into close to discuss the matter further. It was of great interest to those of us in the audience or serving as experts that the special advocates felt the need in open session to challenge the government's lack of cooperation with respect to disclosure.

Finally, under Bill C-3, indefinite detention without charge or trial remains a real possibility since a judge could in fact rule that a person is a national security threat but recognize correctly at the same time that he could not be deported due to risk of torture on return. You will see in our written comments as well that Human Rights Watch does not believe that diplomatic assurances against torture, that is promises from a receiving government that a person would not be tortured on return, are reliable and thus do not mitigate the risk of torture upon return. A certain sense of déjà vu thus surrounds our reading of Bill C-3.

The deficiencies in the bill also fail to meet criticism from other international quarters, and it should be of note that we do sit here to represent to some extent an international perspective on the bill.

In April 2006, the UN Human Rights Committee expressed concern that some persons subject to security certificates in Canada had been detained for several years without criminal charges, without being adequately informed of the reasons for their detention, with limited judicial review, and called on the Government of Canada to legally determine a maximum length of such detention.

Therein lie, in that one paragraph of concern from the UN Human Rights Committee, all of the concerns we have with Bill C-3. This language is eerily similar to the committee's recommendations to the United States government with respect to detentions at Guantanamo Bay.

In December 2006, the Human Rights Committee called on the U.S. to give detainees access to counsel of their choice and expressed concern that detainees did not have adequate due process due to restrictions on their rights to have access “to all proceedings and evidence”.

The use of secret evidence and the establishment of special advocates has been commented upon by many, as the committee well knows from the documents that have been submitted into evidence, including those from Human Rights Watch. But I'd like to share some words with you from a lecture given by Justice Arthur Chaskalson, president of the International Commission of Jurists and chair of IJC's Eminent Jurists Panel. The lecture was given at Cambridge University in May 2007, and the title was, “The Widening Gyre: Counter-Terrorism, Human Rights and the Rule of Law”.

First, Justice Chaskalson applauds Canada and the Canadian Supreme Court for having struck down those provisions of the IRPA that did not comply with the charter or with international human rights obligations. But he goes on to say:

But the appointment of special counsel for this purpose [of testing secret evidence] is not an all embracing panacea. Persons against whom accusations have been made are told that evidence material to the decision to take action against them may not be disclosed to them. Instead, the government that has taken the action will appoint lawyers with security clearances to represent their interests. The lawyers may see the evidence but may not tell them what it is. They must just do the best that they can in the circumstances without being able to get detailed instructions from the affected persons on the information that has been withheld. I am not sure how an English family with a child detained in some foreign country would feel about such a system; or indeed an English family with a child detained in England.

I must confess to having considerable reservations about the fairness of this process.

In closing, I'd like to say that the special advocate system proposed in Bill C-3 simply does not answer the requirement for transparency that is enshrined in international human rights law with respect to fair trial guarantees. Therefore, it does not, as constituted in Bill C-3, provide a person subject to a security certificate with the proper ability to mount a defence.

It is the position of Human Rights Watch, then, that Bill C-3 and a system for special advocates should categorically be rejected.

Thank you.