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

[Lloyd St. Amand, Liberal, Brant, ON]

Mr. Speaker, I listened with interest to the typically eloquent and thoughtful speech of my hon. colleague from Charlottetown. I think I express the hope of everyone here vis-à-vis the activation of his life insurance that it is 40 years or 50 years distant and not imminent.

With respect to special advocates and the suggestion in my colleague's speech that perhaps there are components of the bill that ideally would be buttressed, would his concerns with that portion of the bill be substantially alleviated if there were strict guarantees for adequate funding for the special advocates, and similarly, strict guarantees that any and all information required by the special advocate would be forthcoming within a 24 hour basis so that there would be some time for the advocate to properly represent the detainee?

[Shawn Murphy, Liberal, Charlottetown, PE]

Mr. Speaker, it is not a perfect situation, but one has to bear in mind that the procedure we are dealing with in the legislation is basically foreign to our concept of how justice works. We do not work in normal criminal law or civil law under special advocates. People accused of an offence retain counsel. They do not deal with counsel who are obtaining the information from another source and counsel cannot disclose the information they receive to the person accused. This is a foreign concept but it is a balance. As I said before, it is not perfect.

To answer the member's question of whether there should be adequate funding, yes, there has to be adequate funding. If there is not adequate funding, the whole system will not work.

Also, and this is in the legislation, the way the system has been devised, the person subject to the security certificate will be given a list of special advocates, not a long list, I assume a very short list of advocates. That person will probably be given his or her choice as to the advocate to be used, although the person probably will not know it. That was the second part of the question. Yes, that has to be provided. If we do not have that, the whole thing is a sham. Hopefully that will be provided.

Again, funding, information and choice are all very important and fundamental principles to the concept.

[Judy Wasylycia-Leis, NDP, Winnipeg North, MB]

Mr. Speaker, I want to tell the member for Charlottetown that, quite frankly, we are shocked that the Liberals are prepared to support a bill like this on a wing and a prayer. What the member has just said in response to a question is that he is concerned about elements that are not part of this bill, but he is quite prepared to hope and pray that somehow goodness will prevail on this bill which has very serious flaws, without due regard for serious long term implications and ramifications for individual rights and freedoms, about which I thought the Liberals at one point felt fairly strongly. They were proud of their record with respect to the Charter of Rights.

I want to raise a few concerns about this bill and ask the member why he would support a bill that is so flawed. Perhaps he could give us some reassurance that we have missed something in the bill that addresses those concerns.

I acknowledge that the NDP is the only party in the House right now opposing Bill C-3. That does not mean that we are wrong and the rest of the House is right. There have been many occasions when three parties, the Conservatives, the Liberals and the Bloc, stood together on an issue and supported a position that was wrong. In this case, we are dealing with a similar situation, where in haste we are proceeding with a bill that is flawed and we are not thinking about the long term ramifications.

I understand that the Liberals brought this bill forward in the first place and did so in the heat of the moment after 9/11 when the government was so quick to come up with fast solutions without thinking through how they would affect other elements of our society. Now that they are in opposition, one would have thought the Liberals would be thinking very seriously about whether this is the right way to go, especially given the Supreme Court ruling and the concerns raised by numerous organizations at the committee hearings around this bill.

It has to be pointed out that Bill C-3 does not make Canadians any more secure, but it does undermine some very fundamental freedoms. That is why we are opposing this bill. These security certificates mean that people are going to be accused and deported without knowing the facts or without having the details presented to them. We do not believe that will address the fundamental issue of protecting Canadians in times of terrorism, but it will trample on rights and freedoms.

We do not believe that security certificates will deal with the very serious threat that we all acknowledge is around us. What we need is a government that is committed to putting in place proper border security services, proper training and education for our RCMP, proper information so that we can all be prepared to do our bit. To take a bill and trample on rights--

[The Deputy Speaker, NDP, Bill Blaikie]

The hon. member for Charlottetown.

[Shawn Murphy, Liberal, Charlottetown, PE]

Mr. Speaker, first of all, I do appreciate the comments from the member for Winnipeg North. We can see from her comments that she does not agree with what I have stated, but that is the benefit of this institution. We have different views and different comments.

In something like this perhaps we do not know who was right and who was wrong, and we will not know perhaps until some time in the future. The members talked about the 2001 act that was brought in in haste. Was it a perfect act? No, in fact it was set aside by our Supreme Court. But we are dealing with a six years later hindsight with 20:20 vision. When we look back at this, we could always make judgments and determinations on facts that perhaps were not available to the people who drafted the legislation at that particular time.

We are talking about a balance and the member across has certain views. One side of the equation would allow everyone in and not infringe on anybody's rights, no matter if they are proven to be a terrorist or involved in criminal activity, et cetera. On the other side of the equation, anybody the government is suspicious of in any way can be put in jail and have the key thrown away. Those are the two extremes. We are trying to bring them together with a piece of legislation that has built into it concepts that are somewhat foreign to what we have done in the past.

Again, it is a whole issue of trying to strike the right balance and that is why, speaking for myself, I think this matter should be sent to a committee. The committee should study it, although it does not have a lot of time, and come forward with the best bill possible for this institution. Hopefully it will pass.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, I just have two quick questions. For those who are concerned about civil liberties, could you just outline how this bill is better than the original? Now that the government seems to have set a brand new big policy not to protect Canadians overseas from capital punishment, you talked about returning Canadians--

[The Deputy Speaker, NDP, Bill Blaikie]

Order. I know the hon. member is sitting right beside the hon. member for Charlottetown, but it still does not give him the right to call him, “you”. He has to ask questions of the hon. member and not questions of the Chair.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, the member talked about returning Canadians to other countries and I would like to ask if this is a concern for him?

[Shawn Murphy, Liberal, Charlottetown, PE]

Mr. Speaker, to answer the last part first, yes it is a concern of mine. I think it is a concern of most people who support this particular bill.

We have had a very well known incident where a Canadian citizen actually was sent to a country where there was torture. This hopefully will never happen again and this has to be one of the foremost considerations with the committee. There are certain provisions in there, but we have to look at it very carefully and ensure that no person is deported to any country where torture might take place, and also that we cannot rely on the diplomatic undertakings of certain countries on this particular issue.

On the whole civil liberties issue, the first part of the member's question, perhaps the most salient provision of the bill was the introduction of the special advocates. This is a concept that is somewhat foreign to most of us, but it is used in other countries, I understand successfully.

It is not a perfect provision, but I believe it is a step in the right direction. I believe it is an attempt to balance the fundamental principles with which we are dealing. There are certain issues of choice of advocates and the funding of advocates. The advocates have to be qualified and of course they have to go through their own security testing. But it is a step in the right direction.

When we read the decision of the Supreme Court of Canada, it would appear that we are never certain of course and a lot of experts have different opinions. Some experts have opined that this particular legislation, Bill C-3, will be struck down by the Supreme Court of Canada. Others have said it will not be, but if we read the decision of the court we are left with the impression that it will be acceptable.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, Bill C-3 is really about how our society approaches an attack on our society. As a society it seems to me we always have the opportunity of making one of two decisions. We can respond to an attack in fear, in panic, or we can respond from a vantage point of strong belief in the essential values of our society and that those essential values will protect us and prevent further attack.

After 9/11 in particular, but at other times in our history, we as a country and as a society have all too often opted for the first alternative, that is, reacting in fear and in panic, and putting into place legislation rather than protecting our society as a whole. This has actually caused our society to become weaker. We saw that with regard to the security certificates.

Obviously, I will spend most of my time talking about them, but we saw it after 9/11 with the anti-terrorism legislation. Canada passed a law at that time that by any objective analysis was not necessary. We had provisions within our existing legislation, the criminal justice system, and our procedures under that system protected us. History has proven that true over the last five or six years, and in particular in the last year or two, as sections of the anti-terrorism legislation have been struck down.

We have a similar history with regard to the security certificate, although the security certificates when we study them have a bit of a twist that we have not yet seen with the anti-terrorism legislation.

Before I go on with that, we have historically made some very bad decisions. When we did that, oftentimes it was targeting specific communities within our overall society. We saw it in the first and second world wars against the Italian and German Canadian communities, where a large number of people were incarcerated for a good part of those wars. When we go back and look at it objectively in hindsight, we say that they were not a threat to us. They were not a security concern, but we imprisoned them and took them away from their families and put them into prison camps for both of those wars for extended periods of time.

Of course, the most tragic of all of those was what we did to the Japanese Canadian community in the second world war. We deprived them of their property and their liberty for the entire war, and not paying compensation after the war. This was a real stain on the history of this country.

As I go back and whenever we are looking at protecting our community and our country as a whole, I argue that we have to come from the vantage point of a sense of self-confidence that the society that we build, the criminal justice system that we build, and the security systems that we build are all more than adequate to protect us.

Then, when we are given that choice, we always hear that we have to balance it. When I hear those words, I always cringe because I know what is coming next. When people talk about balancing, what they are really talking about is taking away rights, taking away our civil liberties, acting out of fear and panic, as opposed to saying “we as a society over the last 135-plus years have built a system that generally will protect us”.

I want to come back to the security certificates. Many people I know think that the security certificates were a product of the anti-terrorism legislation after 9/11. Of course that is not accurate. We have had security certificates for almost 30 years now.

To some degree when we look at them, their real abuse did come after 9/11. It came because to a great extent they have been used almost exclusively, with the exception of Mr. Zundel in that period of time, against people who are Muslim and who fit a stereotype of a terrorist. I emphasize stereotype of a terrorist because nothing of course is proven. No one is even charged. They are simply held.

I want to go back and cover the history. Prior to 9/11 we had a system where certificates were used. We only had a few cases, one that is still outstanding, where an individual was held for extended periods of time. In fact, that individual was released under conditions and is still in Canada because he cannot go back to his country without realistic apprehension of torture and probably death as a result of his conduct in the other country. So he is still here, in a case that went to the Supreme Court of Canada once and in a number of other appeals.

However, he is here. He has never been charged, never been convicted, and still is under control, although living in society. That case was reasonably abusive, but the cases that came after 9/11 are even more so.

I want to point out that the system changed after 9/11 because up to that point we had what I saw as somewhat greater protections against the abuse of the use of these certificates.

I must say at that time I was opposed to the use of these certificates because I felt our criminal justice system was more than adequate to deal with the problems we were finding and applying the certificates to.

However, it was certainly a safer system in terms of preventing abuse and in fact it did. It worked under what we call SIRC and it provided additional abilities for the person who was facing the condition of a security certificate to have some additional protection more closely in accordance with our traditional civil liberties and human rights in this country. It was far from perfect and in fact, again, it was not necessary.

After 9/11 though, it became very obvious that we were using them almost exclusively to target individuals who were Muslim and who fit a stereotype.

We have had five cases since 9/11 all very similar, people incarcerated for extended periods of time without charge, no prospect that they are ever going to be charged in this country and it always begs the question. If they are such violent people, if they are such a threat to our society, how dare we as a country send them back? Are they going to be terrorists in the other country, are they going to commit violent acts in the other country?

In a number of cases these people have been here for extended periods of time. We have a moral responsibility, if not a legal one, to keep them in this country and deal with them in this country in our traditional criminal justice system. That of course has not happened.

In addition, we have had these cases where the certificates were applied for and granted by our proper ministers who had signing authority to pursue these. Then there were very extensive legal battles to the Supreme Court, again most recently to the Federal Court at the trial level, and the Federal Court of Appeal level repeatedly and repeatedly.

What we have always been faced with in those five cases, without exception, is the reality that the certificates are useless when they come up against the practical fact that if we send these people back they again are facing torture or death in these countries. Our courts have repeatedly found that we are not prepared to do that. There is a sliver of a window that the Supreme Court left open with regard to cases where we might do that. However, in all five of these cases, our courts have said no, we cannot do that because of the fear of torture and/or death.

We are left with this conundrum. We have these people in the country. We are saying that we are never going to release them, but we are never going to charge them and we are never going to prosecute them. That so flies in the face of our traditional criminal justice system as to make a mockery of that criminal justice system.

Now, today, we are faced with this legislation that had been in effect a response to the Supreme Court of Canada decision of about 10 months ago. It was one of these cases that went to the Supreme Court. In that decision, the Supreme Court said, after analyzing the empowering legislation for the certificates, that we could not continue with the system as it is now, it being a clear breach of the Charter of Rights and Freedoms.

Also, as the court always has to go to that secondary stage of asking in a free and democratic society if this type of infringement on civil liberties and human rights is permissible, it said no to that as well. It said that the legislation as is, the practice as is, is unconstitutional. It is against the charter and it is not saved by the residual clause, section 1 of the charter, that allows in exceptional circumstances for breaches of fundamental rights.

The court said it is illegal, unconstitutional and against the charter, that there are no saving provisions in this legislation, and that we have to redo it, making it clear that it gave government 12 months to correct the legislation if it could. If not, then the security certificates are declared unconstitutional, as being against the charter.

We are approaching that timeframe. It runs out sometime in early March, I believe, so we have this response from the government. It was interesting to listen to some of the other speakers who have read the court case, as I have, but I come away with a different interpretation. What we hear is that in this legislation, in Bill C-3, we have cured the problem by introducing the concept of a special advocate.

If one not only read the decision by the Supreme Court but saw the arguments that went on in front of the Supreme Court by counsel from all sides, one would see, I believe, that the simple introduction of the special advocate, and the limited authority given to that special advocate, does not meet the requirements of the Supreme Court in that decision. I say that from two vantage points.

One is that although the concept was discussed and argued by various counsel before the Supreme Court, it was a fairly limited argument. There was not a great deal of evidence put in as to how the advocates function, particularly in the U.K., which is the model that has been fairly closely adhered to in Bill C-3, but there was information that went forward at that point. There were serious questions about its efficacy in the U.K., about whether in fact it was working, and I will come back to that in a minute.

So even though the Supreme Court heard a little about that, it was not extensively argued. Again, when we look at the wording that it actually used, we see that it simply said this may be one possible way of fixing the problem. I think that is a fair characterization of its wording. The court did not go all the way, by any stretch of the imagination, and say to put in special advocates and the problem would be corrected. It did not say that. In fact, the court left open quite clearly the point that this was only a possibility in regard to fixing the problem with the security certificates and the way they impinge on the charter.

When we actually look at the experience in the U.K., and I know that we have heard from other speakers about this but I want to emphasize it, we see that the lawyers in the U.K. who were special advocates have on a number of occasions resigned their positions and have gone public with the reasons for those resignations. Sir Ian Macdonald is probably the primary one that we refer to.

He wrote a very eloquent piece at the time of his resignation as to why he could no longer in good faith continue to act as a special advocate. He listed the problems that he had as a lawyer, as a barrister of much reputation. He is a very experienced lawyer. He is a very experienced barrister in the criminal justice system in the U.K.

His final conclusion was that in terms of being honest to himself, his profession and his professional role, he could not continue to do it because in fact he was not capable. As talented as he is, as experienced as he is in criminal law matters and in the criminal justice system, he could not provide protection that is anywhere near the standard that we should expect. He was speaking there of England, but this certainly would also be applicable here in Canada. He resigned.

I also want to point out that on a number of occasions the special advocates made representations to the government about the additional authority and mandate that they wanted in terms of being able to communicate with the individual who was the subject of that kind of system. It is different in the U.K., but there are basically security certificates there. They were wanting to play a much more traditional lawyer's role of protecting the person they were assigned to protect.

One of the things that happened midway through the process in the United Kingdom was that they actually established resources because they did not have many, both in terms of additional personnel to help the counsel and actually setting up an independent office so they could provide additional protection.

Even after they did that, Sir Ian Macdonald still said that they could not do it, that it is fundamentally flawed and fundamentally against the basic concepts of English common law, civil liberties and of human rights. “And if you want to set this up as a sham”, he said, “I am no longer going to be part of it”. He resigned.

I believe that is the same argument that the Supreme Court will see if this bill gets through. It sounds like it will get through, because the Liberals, as they have done so often lately, are siding with the government. It will probably get through.

We are going to be voting against it as a party, because I believe ultimately that when this gets back to the Supreme Court of Canada it will say that it has now seen how the system works, how the introduction of the special advocate does not meet the basic requirements of the charter and does not protect fundamental rights in this country, and the court is going to strike this one down too.

Quite frankly, I am proud to say that the NDP will continue its opposition to the use of the security certificates. We should get this out of our system completely. We should have the faith, the confidence and, yes, the courage in our belief that we can protect our citizens using our existing criminal justice system. All sorts of evidence says we are justified in that belief and that faith in our system. That is the way we should be going. This legislation should never be passed.

[Lui Temelkovski, Liberal, Oak Ridges—Markham, ON]

Mr. Speaker, I listened to the member for Windsor—Tecumseh speak about this. Obviously we do not agree on the outcome of the issue of Bill C-3. His party tends to believe that we should not go further into this and explore other avenues, even though the basic premise of the bill may be flawed, but we would like to take it to committee, where all party members will be able to contribute to this and amend it in such a way that it can be fixed to be applicable and can be applied in the future for those people who are detained.

I have a question for the member. Does he think there are sufficient instruments in place whereby applicants coming to Canada can be identified before they land in Canada as to whether they are terrorists or members of some war crime situation from other countries? Or should there be additional time taken prior to them having the right to come into Canada and then certificates issued for them subsequently?

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, we can go back and analyze the process by which the 19 terrorists committed the atrocity of 9/11, as has been done very extensively, and look at the U.S. system, which is much more vigorous in checking out people before they come to the United States than the Canadian system, certainly at that time, although we have tightened up quite significantly since then.

I think it would be unfair of us as parliamentarians to convey to the Canadian citizenry that we could 100% guarantee that we could prevent a person bent on the terrorist type of activity, violent activity, from getting into this country. It would be foolhardy on our part to suggest that.

I would repeat that we have tightened up quite extensively what we do in terms of people coming into Canada compared to what it was like prior to 9/11. I think a number of those provisions have been useful. Others probably do not advance it at all.

I want to make one more point in response to the point the member made about us disagreeing over this. I practised law for 27 years, mostly in the courts, and a good deal of that was criminal law in the early part of my career. I can well understand the desire to do something like this, to have security certificates, but my legal practical experience says that I am never as a lawyer going to be able to make that system work and preserve our civil liberties and human rights.

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, listening to the debate, now from the three opposition parties, I am a little surprised to learn, judging from the comments, that the NDP is the only party that will be opposing Bill C-3 at this stage.

I want to ask my colleague in the last minutes we have left in the debate on this subject today if my understanding is correct. Even though the Supreme Court overturned the security certificate provisions of the 1990s, when the Conservatives reintroduced Bill C-3, there were still the same controversial parts of this security certificate process, such as secret hearings, detention without charge or conviction, detention without knowing the evidence against a person, and a lack of an appeal process.

It seems to me, and I would ask my colleague to confirm this, that these are an affront to natural justice by anyone's definition and in any developed nation. Could he clarify that those are some of the reasons why the NDP cannot support this bill at this stage? Even if amendments may be possible at committee, these points alone are justifiable grounds to oppose this bill at second reading.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, my colleague from Winnipeg is very accurate in his assessment. Simply providing the band-aid of the special advocate will not deal with any of the other problems, such as incarceration without charge or conviction, and in many respects, even the right to remain silent. In order for people to find out why they are being held, they almost have to break their silence. It is an interesting twist. There is no question that Bill C-3 is a band-aid approach, and I want to make a comment in that regard.

I think it was the Department of Justice that commissioned a study by a law professor here in Ottawa and a private lawyer involved in a lot of citizenship and immigration files with respect to security certificates. They prepared a very extensive report, about 50 or 60 pages long. They analyzed what went on in the U.K., what went on here in Canada, and in Australia and New Zealand. In addition to the special advocate, they made a long list of steps that could be taken to perhaps make the security certificate system palatable. The only part of the report that the government took was to provide the band-aid of the special advocate. Specific references were also made to additional authorities to give to the special advocate, and hardly any of those were incorporated.

This goes back to why we are voting against this legislation. It is not going to survive the ultimate challenge when it gets back to the Supreme Court.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, why does the member believe that a special advocate would not protect civil liberties and why would it be unconstitutional?