Bill C-3 (Historical)

An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act

This enactment amends the Immigration and Refugee Protection Act to add provisions relating to a special advocate to Division 9 of Part 1 of that Act. The special advocate’s role is to protect a person’s interests in certain proceedings when evidence is heard in the absence of the public and of the person and their counsel. The special advocate may challenge the claim made by the Minister of Public Safety and Emergency Preparedness to the confidentiality of evidence as well as the relevance, reliability, sufficiency and weight of the evidence and may make submissions, cross-examine witnesses and, with the judge’s authorization, exercise any other powers necessary to protect the person’s interests.
The enactment eliminates the suspension of consideration of the reasonableness of a security certificate that occurs when the person named in it makes an application for protection.
The enactment also provides that, when a person is detained under the security certificate regime, a judge of the Federal Court must commence a review of the detention within 48 hours after the detention begins and then, until it is determined whether a certificate is reasonable, at least once in the six-month period following the conclusion of each preceding review. A person who continues to be detained after a certificate is determined to be reasonable and a person who is released under conditions may apply to the Court for a review of the reasons for their continued detention or for continuing the conditions if a period of six months has expired since the conclusion of the preceding review.
The enactment permits the appeal of a determination whether a security certificate is reasonable and of a decision resulting from a review of a person’s detention or release under conditions to the Federal Court of Appeal if the judge certifies that a serious question of general importance is involved.
It also permits a peace officer to arrest and detain a person who is subject to a security certificate if the officer has reasonable grounds to believe that the person has contravened or is about to contravene their conditions of release.
The enactment enables the Minister to apply for the non-disclosure of confidential information during a judicial review of a decision made under the Act and gives the judge discretion to appoint a special advocate to protect the interests of the person concerned.
It also contains transitional provisions and makes a consequential amendment to the Canada Evidence Act.

Immigration and Refugee Protection Act

[The Deputy Speaker, Bill Blaikie]

The hon. member for Halifax.

[Alexa McDonough, NDP, Halifax, NS]

Well, Mr. Speaker, I think that was a very sincere comment: he does not really like to do that but...? Give us a break.

I think I have made my point clear. We have a fundamental disagreement here. I absolutely believe that overwhelmingly we are well served with very competent judges. I also believe that we have a legal system that for a very good reason exists with checks and balances, with due process.

Yes, there may be instances in which some information should be withheld, but that is a far cry from the kind of hang 'em high, lock 'em away and throw away the keys kind of justice system that is too often conjured up in people's minds when they are fearful about the possible threat of terrorism.

We have to be very careful not to succumb to that. As Barbara Lee has said, “let us not become the evil we deplore” in the attempt to defeat terrorism.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Alexa McDonough, NDP, Halifax, NS]

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

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

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

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

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

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

Mr. Speaker, the question of the member for Halifax is insightful. In my remarks I referred to the fact that there was a chill across the country. It is in primarily our diverse communities. They feel they are being abandoned.

How the government members and the government itself can ignore the expert advice that came before the committee is beyond understanding. Clearly people are frightened for the well-being of our Charter of Rights and Freedoms. They see this as the beginning of the undermining of that charter.

It is baffling. The warnings that were given, and I used the word before, were cavalierly tossed aside by the government.

[Denise Savoie, NDP, Victoria, BC]

Mr. Speaker, the hon. member mentioned the tone in the House. I was glad he raised this issue. I think it is very pertinent to the debate about democratic rights.

Many young people in my riding are concerned about the bullying, the catcalls, the kind of behaviour that is displayed here. They are becoming discouraged with the democratic process with our government and believing in what we are doing here.

Would my colleague like to comment on the link that he makes between the erosion of democracy and behaviour in the House?

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

Mr. Speaker, the thing that is very striking about what we hear in the community is this. I will give one example that my caucus mates have shared. All of us have heard from teachers. Because of the tone in this place, they no longer wish to bring their students here.

The member asks me what I believe the long term effect of that will be. If people do not experience this place, if schools no longer want to talk about this place, if we do not encourage the democratic process for which this place should stand, then the young people will not learn and they will not want to be part of this process.

All the things that minimize democracy have to be challenged. That is what brought me to the point of raising my remarks earlier.

[Denise Savoie, NDP, Victoria, BC]

Mr. Speaker, I am pleased to have the opportunity to speak to Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act. As we know, this is a bill that would reintroduce security certificate legislation with the provision for special advocates to address the civil liberties issues raised by the Supreme Court.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Mario Silva, Liberal, Davenport, ON]

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

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

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

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

[The Deputy Speaker, Bill Blaikie]

I am afraid we will have to wait until after the votes to hear the response of the hon. member for Victoria to that intervention.

The House resumed consideration of the motion that Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, be read the third time and passed, and of the motion that this question be now put.

[The Deputy Speaker, Bill Blaikie]

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

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Speaker, I understand that we are now finally discussing the substance of the bill in order to decide whether to accept or reject it. We will be voting against this bill for the following reasons.

We believe that if a judge is to make a decision that will result in the incarceration of an individual for an indeterminate period of time, he must be convinced beyond a reasonable doubt. That is the criterion which the judge should use to make his decision. That is what the law prescribes for all Canadians—for those governed by Canadian law and for Canadians.

I will point out shortly that security certificates only apply to foreigners. In this case, since we decided to give them the right to appeal, this appeal should be of the same sort, that is it should deal with a question of fact, a question of law or of law and fact.

We were also not satisfied with how the whole issue of the special advocate is dealt with, although we recognize that a significant improvement has been made to the legislation.

At this time, perhaps, people are still watching us, or some may watch us later. I would like to make it easier for them than it was for me to understand this legislation. Few people unfamiliar with the bill understand what we are talking about, the term used and our discussions.

I would first like to say, so that it is clearly understood, that the security certificate is badly named. We should really be talking about a deportation order because, in practice, that is what is being requested. This is why it applies only to aliens and not to Canadians. Indeed, under section 6 of the Charter of Rights and Freedoms, Canadians have the right to live in Canada, to leave the country and return, which is not the case for aliens. The charter refers to every Canadian citizen. Therefore, it does not apply to aliens.

What is a security certificate? Generally speaking, secret services may believe that a person is dangerous. In our modern world, dangerous people, the kind of people we fear, are terrorists who have been trained and sent to live in Canada, remain unnoticed if possible and, at a given time, carry out a terrorist act. That is what happened on September 11. Many of the people in those planes, who took part in the take-over of the planes and the subsequent suicide attack, were model citizens. They are known as “sleeping cells.” By the way, this is a ridiculous term, not that we are accusing anyone here, because the definition of a sleeping cell is a model citizen. He is here to go unnoticed among us. So he is a model citizen. It seems a bit unfair when we think about it.

Let us return to the security certificate. We are talking about a deportation order that has been requested by two ministers, the Minister of Citizenship and Immigration, because this deals with the Immigration and Refugee Protection Act, and the Minister of Public Safety, because, he, obviously, is responsible for national security.

If they believe an alien is dangerous, they issue what we call a security certificate to expel that person from Canada. The certificate is brought before a judge who must be convinced that the person is dangerous. In fact, it is not necessary to convince the judge, only to have him think that it is reasonable to believe that the person is dangerous based on the evidence presented to him.

Obviously, if they feel that way, it is because they have secret information about that person. That is the reason you will often hear people say they do not know what evidence was presented to the judge. In fact, very often, the evidence comes from three kinds of sources.

First, the source might be an ally who gave us information on the condition that we not make it public. Second, the source might be an undercover agent, whose life may be at risk if he is discovered or who at least risks never working as an undercover agent again and losing his secret agent status. Third, the evidence can come from investigation methods or terrorist group surveillance activities that should not be disclosed for fear of helping those concerned get around those methods.

This type of evidence is presented to the judge. The judge hears this evidence in the absence of the accused. In fact, we should not use the term “accused”. We should always avoid talking about the “accused” and instead talk about the “person concerned”, since that person is not being accused or charged. That person is believed to be dangerous and because he is considered dangerous and he is a foreign national, we want to deport him from the country. We do not want to inform the person concerned because if he is indeed a terrorist, as we suspect, he could later tell others about the investigation methods or the name of the undercover agent.

The judge hears the evidence in the absence of the person concerned and in the absence of his lawyer, if he has one. Then the judge decides which pieces of evidence the person concerned can be informed of. For example, if we know that the person received training in Pakistan and he was seen in a certain village doing a certain thing, the judge can tell him he was seen without telling him who saw him or mentioning how that information was obtained and without disclosing the names of the people who were directly responsible for providing that information.

The person concerned can try to explain why he went to Pakistan and try to convince the judge that he did not receive terrorist training and that he is not part of one of those sleeper cells we are so afraid of. As you can see, there are limited ways to challenge the arrest since the person is not provided the confidential information, which is also probably the most important information.

In fact, we are talking about a removal order. The individuals need only to leave the country to pursue their activities. Then why do some people not leave? Because in some cases—increasingly so—if these people go back home after being deported for security reasons, they are sure to be sent to prison in the destination country, like Morocco, Syria and many countries in the Middle East. Not only are they sure to go to prison, but since they are suspected terrorists, they will likely be tortured. This has happened a lot lately. Sometimes they are tortured to death.

Consequently, these people do not want to leave Canada and contest the removal order because they are afraid to go back to these countries. Others contest the removal order because they have been in Canada for a number of years. They have started a family here, they have jobs and Canada has become their country, even though they have not taken out Canadian citizenship. Those are some reasons why people contest the removal order.

Now, because it considers these people dangerous, the government is thinking of incarcerating them during the procedures, to prevent them from escaping and going to live somewhere else in Canada under a new identity or whatever. The government is thinking about a form of incarceration. It is true that these people can always leave the country if they wish. That is why some members of this House say that it is a three-walled prison, although they never explain what that means.

Keeping the same image, I would answer that it may be a three-walled prison, but in some cases, there is a cliff where the fourth wall should be. The person who is incarcerated cannot really leave, because leaving would mean certain death. That is why these people do not want to be deported.

When we understand that, the situation becomes much clearer. We understand that these people are not Canadian citizens and that they have not been accused of anything. The government simply has information that they belong to a terrorist group. But that does not have to be proven beyond a reasonable doubt in court. All it takes to keep these people in prison is for the judge to be satisfied that this belief is reasonable. And they can be kept in prison for many years. In fact, they are incarcerated indefinitely. That is why the Supreme Court ruled that this was not just an administrative matter. These people have certain rights. In my opinion, that is the most important thing.

I would like to read some excerpts from the Supreme Court decision so we can have an idea of its intentions. According to the court, it is not simply an administrative decision, but it is also as serious as criminal charges. Even if they were never charged, it is just as serious and they must be granted certain rights. In paragraph 60, the court said:

It is one thing to deprive a person of full information where fingerprinting is at stake, and quite another to deny him or her information where the consequences are removal from the country or indefinite detention. Moreover, even in the less intrusive situations, courts have insisted that disclosure be as specific and complete as possible.

As they say, it is a serious decision. The information must be revealed.

I will go a bit further to understand the background. It is about a removal procedure. People will perhaps remember that this summer, an individual was arrested at Dorval. I believe he was Russian, but his nationality was not known when he was arrested. He had several pieces of ID, a considerable amount of money in different denominations, and so on. A security certificate was issued against him and he left. It was not long. He left and was not sent to prison. He returned home or went elsewhere. Those who stay here do so because they cannot leave Canada for fear of torture or death.

In paragraph 91, the Court stated:

[The government] asserts that when the provisions were drafted, it was thought that the removal process would be so fast that there would be no need for review.

Because of what I explained, we can see that it takes more time. Some people have remained in prison for five, six or eight years on a security certificate. So it is a very difficult detention. In paragraph 96, the Supreme Court said:

Detention itself is never pleasant, but it is only cruel and unusual in the legal sense if it violates accepted norms of treatment. Denying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrarily indefinite and support the argument that it is cruel or unusual. (The same may be true of onerous conditions of release that seriously restrict a person’s liberty without affording an opportunity to challenge the restrictions.)

We have read in the papers about people who complain about the bracelet, conditions of house arrest and so on. In paragraph 98, the judges say:

More narrowly, however, it has been recognized that indefinite detention in circumstances where the detainee has no hope of release or recourse to a legal process to procure his or her release may cause psychological stress and therefore constitute cruel and unusual treatment.

Further on, in paragraph 105, they add:

It is thus clear that while the Immigration and Refugee Protection Act (IRPA) in principle imposes detention only pending deportation, it may in fact permit lengthy and indeterminate detention or lengthy periods subject to onerous release conditions.

In paragraph 107, the Supreme Court states:

Drawing on them, I conclude that the s. 7 principles of fundamental justice and the s. 12 guarantee of freedom from cruel and unusual treatment require that, where a person is detained or is subject to onerous conditions of release for an extended period under immigration law, the detention or the conditions must be accompanied by a meaningful process of ongoing review that takes into account the context and circumstances of the individual case.

Clearly, it is because of the consequences that these decisions may mean indefinite incarceration in exceptional cases and the Supreme Court believes that enhanced procedural safeguards are needed.

We can take the Supreme Court's reasoning and apply it to the provisions that are before us. We understand that security certificates cannot be issued against Canadians, but sometimes people are so dangerous that the government wants to make use of certain legal provisions, such as those in part XXIV of the Criminal Code. Sometimes the government says that these people have to be held in prison indefinitely. This is a very harsh sentence, although it is not quite as harsh as life imprisonment.

In such cases, judges must be certain. They must not just believe that the reasons for which the person is thought to be dangerous are reasonable, as in cases of foreigners who are the subject of removal orders. Judges must be certain. We would have preferred that the judge's decision, which may result in indefinite detention, be made on the basis of the same criteria: being certain beyond a reasonable doubt. That is one of the two main reasons we will be voting against this bill.

The second reason concerns the decision to appeal. I should clarify that they decided to reinstate the appeal process. There was one before for the security certificate process, but it was abolished at the beginning of the last decade. Nevertheless, they decided to reinstate it, albeit in a very strange way. To keep the person in jail and maintain the security certificate and the removal order, the judge must determine if his or her own decision is a legal issue of general public importance. An appeal can be allowed on those grounds, and the judge drafts the notice of appeal for the person.

If I had just been convicted, I might not have much faith in the way the judge would present my case to the court of appeal. The purpose of the appeal is to advance the law, which is very noble. It is a bit like medical research, except that in this case, it does not really affect the patient.

I asked some officials where they found this appeal procedure that I had never heard of in my 30 years of practising law. They said that it came up in administrative law cases. However, the judges have told the officials that this is not administrative law. That is why conditions are needed to make it constitutional. The ruling is so serious as to be almost criminal in nature. That is not what they tell us, but that is what it boils down to. We are asking for improvements to the procedure so that the person involved can have a better opportunity to tell his or her side of the story, with full knowledge of the evidence, where possible.

This is what section 759 of the Criminal Code says about what happens when a Canadian is found to be a dangerous offender and the courts want to sentence him or her to time in prison:

An offender who is found to be a dangerous offender under this part may appeal to the court of appeal against that finding on any ground of law or fact or mixed law and fact.

In cases that are just as serious, why would we not grant the same rights to a person who, I would remind the House, has never been charged or convicted of anything, when all we have is some information held by security agencies that suggests that the individual is dangerous? If we must consider foreign nationals believed to be dangerous based simply on reasonableness, I think we should give them at least the same opportunity we give to Canadians we want to put behind bars because they are dangerous offenders, guilty beyond a reasonable doubt, and who have been convicted for several offences before they were declared dangerous offenders. We must grant the same rights to foreign nationals. That is why, once again, we would have liked to improve that piece of legislation. That was impossible, which is why we cannot accept this and why we will vote against it.

When the minster says this is a matter that should go beyond party politics and that we should have a different attitude, I do not see anything partisan about our attitude. For such an important decision, he should have sought the consensus of all members.

After such a long day, I hope to have nevertheless enlightened a few people who did not understand what a security certificate is. What is important to remember is that it is a deportation order because someone thinks such people are dangerous. The security certificate applies only to foreign nationals and not to Canadians. They are not given all the evidence because—

[The Deputy Speaker, Bill Blaikie]

Questions and comments.

The hon. member for Hochelaga.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, first of all, I would like to congratulate the member for Marc-Aurèle-Fortin. I know he worked hard in committee. I would like to take this opportunity to mention that Nicole Martin is in our lobby. My colleagues will understand how lucky we are to have her there.

I would like to ask an even more important question. Does my colleague agree with the opinion—which I hope will one day be the majority opinion—that this law was not necessary, even if we do not deny the existence of terrorist networks? The member for Marc-Aurèle-Fortin made this argument well.

Could he speak about certain provisions, not specifics, of course, that already exist in the Criminal Code or in other acts, and that would have enabled us to act in 2001, in response to the events of September 2001, when Anne McLellan introduced a bill to which the Bloc was opposed?

Is it not inherently dishonest to make it seem as though there were not already tools that would have helped us fulfill our duty to provide security at a time when people could represent a threat to national security? Is it not rather appalling, in terms of human rights, to have a bill like this one?

I would like to know what the member for Marc-Aurèle-Fortin thinks.