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.

[Alex Neve, Secretary General, Amnesty International Canada]

Thank you, Mr. Chair.

My name is Alex Neve, and I'm the secretary general of Amnesty International Canada. It's a pleasure to be here today. We do certainly appreciate the fact that the committee has opened up this extra opportunity for hearings, making it possible for us to appear.

Amnesty International first spoke out about concerns regarding Canada's immigration security certificate procedure back in 1997, in the case of Manickavasagam Suresh. At the time, we highlighted two separate but certainly interrelated and very serious human rights concerns, and 10 years later both of these issues of fair process and protection from torture remain very substantial and glaring problems.

Amnesty International approaches its review of Bill C-3 from three perspectives. First, does it lead to a process that meets international standards, such that individuals who are subjected to certificates will in fact be dealt with fairly? Second, is it a process that more widely stands to strengthen the protection of human rights in Canadian security laws and procedures? And third, recognizing the importance of the example Canada sets for the rest of the world, is this an approach that demonstrates leadership in the crucial global effort to ensure that human rights are not sacrificed to security?

That latter consideration, we urge, should be of real concern in your deliberations. The past six years, in the aftermath of September 11, have witnessed a global challenge to human rights standards. Crucial safeguards against torture, arbitrary detention, fair trials, and other vital human rights principles have been undermined. We very much need to look to Canada to stand firm for these critical human rights principles and make it clear that true, lasting security will be achieved only through scrupulous regard for these hard-won, universally binding standards.

Amnesty International developed principles that we believe should guide reform of the immigration security certificate process, which derive from Canada's international human rights obligations. It had been our intention to promote these principles in consultations we had expected would be conducted in advance of preparing this bill. Those consultations, unfortunately, never took place.

After outlining those principles, I will then highlight a number of the most problematic human rights shortcomings in Bill C-3's proposed special advocate model, and I will end with Amnesty International's key recommendation, that the special advocate model should be abandoned, and instead, measures should be put in place to make it possible for the individual's own lawyer to provide effective representation.

The overarching principles--there are nine of them--are as follows. I hope you will be able to have these later in writing. On short notice our brief wasn't able to be prepared in both languages, but it is available and is with the clerk, and he tells me it should be distributed to you in short order. In writing, they are elaborated more fully, but I want to signal the key concepts.

First, in no circumstances should any procedure lead to the removal or transfer of any individual from Canada to a country where there's a serious risk he or she would be tortured or subjected to cruel, inhuman, or degrading treatment.

Second, in no circumstances should any procedure lead to the removal of an individual if he or she would consequently escape facing justice for crimes.

Third, criminal proceedings should be launched in Canada when removal or transfer is not possible.

Fourth, immigration removals should not be disguised extraditions.

Fifth, immigration-based security procedures should provide the same rigorous standards of procedural fairness as are offered under Canadian criminal law.

Sixth, the right to full answer and defence must be scrupulously protected in any immigration-based security procedures.

Seventh, in no circumstances should evidence be withheld for the sole reason that to disclose it would be injurious to international relations. The Arar inquiry provides troubling examples of the extent to which concern about injuring international relations is used in a wholly inappropriate manner to justify withholding important evidence.

Eighth, in immigration-based security procedures, detention must be the last resort. Immigration detention should not be prolonged and can never be indefinite.

Finally, ninth, immigration detention is not and should not be treated the same as criminal detention.

The approach that is proposed under Bill C-3, unfortunately, does not meet these principles. In large part, of course, that is because the bill fails to incorporate provisions that deal with many of the very troubling shortcomings that are inherent in the security certificate system, such as deportations to torture, concerns about impunity, and issues related to detention.

The special advocates proposal itself, evidently intended to improve fairness, improves the system only marginally and in the end does little to ensure that fair trial rights are adequately protected.

The proposed amendments creating special advocates mirror closely the model that exists in the United Kingdom. As noted in the Supreme Court decision of Charkaoui, the British model has received significant criticism from U.K. parliamentary committees, U.K. courts, detainees and their advocates, and from special advocates themselves, some of whom have stepped down from their positions rather than continue to give what some have called a veneer of legality to a fundamentally flawed system.

I would like to quickly review some of the more glaring problems with the proposed system. The concerns are elaborated in greater detail in the written notes you will later receive.

First is the concern that special advocates do not have explicit right of access to all relevant information in the government's possession. This is further aggravated by the minister's power to withdraw information from the proceedings. The lack of a clearly expressed obligation on the government to disclose all relevant information has been a grave concern in the U.K., where special advocates have indicated that they have become aware of cases where important exculpatory information was not disclosed to them. If there is potentially exculpatory evidence, the minister must be obliged to disclose it and must not be allowed to withdraw it from the process.

Second, while Bill C-3 permits the appointment of a special advocate on a judicial review or on an appeal from a designated judge's decision, the proposed legislation provides no mechanism for the special advocate, him or herself, to commence a judicial review or an appeal where an issue arises in the context of in camera proceedings.

Third, Bill C-3 does not set out the criteria for the appointment of special advocates. Bill C-3 does not set out minimum qualifications for special advocates or suggest where they will be drawn from, leaving these to the discretion of the minister. The bill makes no provision for training, administrative support, or access to experts for the special advocates.

The U.K. House of Commons Constitutional Affairs Committee has severely criticized the lack of resources for special advocates in the U.K. once they have been appointed. For example, the lack of Arabic-speaking staff has resulted in situations where material that was withheld from the individual concerned was, after the fact, found to be public and available on the Internet and could have been disclosed to the individual to help mount a defence.

Fourth, the relationship between the named individual and the special advocate is fundamentally and inherently flawed. First, the individual plays only a very minimal role in appointing the special advocate, and second, the absence of a solicitor-client relationship undermines the trust necessary between the special advocate and the named individual.

With respect to appointment, it is the judge rather than the named individual who selects the special advocate, chosen from a list of persons established by the Minister of Justice. The judge may also terminate the special advocate. The named individual has only a restricted role in the selection process.

The appointment of the special advocate by a judge with little input from the individual may give the impression that the special advocate is not the advocate of the named individual, and the named individual may perceive the special advocate to actually be acting as an agent of the state.

The role of the special advocate is further undercut by the absence of solicitor-client privilege between the named individual and the special advocate. The proposed legislation is silent on the special advocate's duty of confidentiality and legal professional privilege. This ambiguity will put a chill on communications between the named individual and the special advocate.

The fifth and final concern Amnesty International has with respect to Bill C-3 relates to the restrictions placed on the special advocate's ability to communicate with the named individual or anyone else following the disclosure of secret information to the special advocate. Of course, it is possible for the special advocate to seek the judge's authorization to be allowed to communicate with outsiders, including the named individual. This provision is similar to that found in the U.K. special advocate model, where authorization from the judge allowing further communications has rarely been given, and is rarely sought because the questions the special advocate seeks to ask must be vetted first by the government.

This prohibition on communication with the named individual after disclosure of the secret evidence has been the subject of strong criticism in the U.K., not only from human rights bodies and the special advocates themselves, but by parliamentarians as well. The same criticisms apply to Bill C-3.

It is uncertain whether the special advocate can call witnesses to testify on behalf of the named individual. The limitation on the special advocate's ability to present other evidence on behalf of the named person, such as documentary evidence, is less ambiguous. This may be done only with the judge's authorization.

What is the solution? Obviously, there are amendments that could go some distance in meeting the concerns I have identified. It is disappointing that the bill does not include those sorts of enhancements, all of which are clearly apparent from the U.K. experience and on the public record. The question that arises is whether the special advocate model can be improved to such an extent that these serious flaws can be remedied. In Amnesty International's view, it cannot.

The improvements that are required, securing the real and perceived independence of special advocates, building a relationship of trust, ensuring confidentiality and privilege, and allowing an ongoing relationship throughout the course of the proceedings, would all, if enacted, essentially replicate the role the individual's own lawyer would and should play. Therefore, recognizing the fundamental importance of the solicitor-client relationship in any fair trial, as well as important rights associated with the choice of one's own counsel, all of which is of even greater importance in proceedings involving secrecy, Amnesty International urges that Bill C-3 be amended to focus instead on making it possible for the individual's own lawyer to effectively represent the person concerned.

This is not an outlandish suggestion. The Canadian justice system has already recognized that the need to mount an effective defence in cases involving sensitive evidence, such as that of a national security nature, requires creative solutions to the issue of disclosure. One such solution that has been used involves security clearing defence counsel and giving them access to the evidence, coupled with a limited undertaking not to disclose aspects of that evidence to their client.

The most obvious precedence for such a model involving national security material can be found in criminal cases such as the recent Air India trial. In the Air India trial, the crown gave defence counsel limited interim disclosure to the relevant CSIS files, with an undertaking of confidentiality not to disclose the evidence to others, including their clients. Recognizing that it would have been too time consuming to then seek a judicial ruling for each document, the parties established their own system of negotiating which documents could in turn be disclosed to the accused.

The use of undertakings in Air India stemmed from earlier precedents dealing with informant privilege, third-party wiretaps, police intelligence records, and privileged documents. Ironically, given the very serious concerns about the nature of the justice system being pursued there, models used by the United States to deal with detainees in Guantanamo Bay present a partial example to consider.

Detainees brought before the flawed military commission process are appointed a military defence counsel to represent them, in addition to a civilian lawyer, both of whom have lawyer-client privilege. The military lawyer is able to see classified evidence but can be forbidden from sharing that information with the detainee and their civilian counsel.

The United States has used criminal law to try individuals for suspected terrorist activity. Ahmed Ressam was convicted of conspiring to blow up Los Angeles International Airport, and his trial was a criminal trial held publicly. On sentencing, Judge John C. Coughenour noted:

We did not need to use a secret military tribunal, or detain the defendant indefinitely as an enemy combatant, or deny him the right to counsel, or invoke any proceedings beyond those guaranteed by or contrary to the United States Constitution.

In sum, the special advocate model should be withdrawn. Instead, Bill C-3 should propose a process for security clearing counsel for the individual named in an immigration security certificate, coupled with limited and necessary undertakings that counsel will not disclose some of the evidence he or she is given access to. As well, it is unfortunate that Bill C-3 does not attempt to deal with the related and very serious human rights concerns that arise in immigration security cases, including prohibiting returns to torture, ensuring individuals do not escape justice, removing injury to international relations as a ground for withholding evidence, and improving the provisions governing detention in immigration security cases.

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

I'd like to bring this meeting to order. This is the Standing Committee on Public Safety and National Security, meeting number 8, and we are continuing our study 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 really appreciate our witnesses coming on such very short notice. Some of you have made a great effort to be here. We appreciate it very much and we thank you.

I am not sure if you have discussed who would like to go first. You will go in the same order.

I'll ask you to introduce yourselves. We'll begin with Amnesty International Canada. Then we'll move to the Canadian Arab Federation, and the third presenter will be the Human Rights Watch representative, Ms. Julia Hall.

You each may have 10 minutes approximately. We're not going to bring the gavel down too quickly on you, but make your opening remarks, and then the usual practice at this committee is to go around and give every member an opportunity to make comments and ask questions.

Welcome once again. Please introduce yourselves, and you may begin.

[Janet Dench]

You mentioned the Canada Evidence Act. From our perspective, we feel that it may give some useful clues, because the Canada Evidence Act recognizes that there may be sensitive information in certain circumstances, but it has a much more flexible mechanism for dealing with how you balance the need to keep that information secure versus the interests of the person affected. In looking at Bill C-3, one of the questions we have is why there seems to be this all-or-nothing provision. Either the government has concerns about the disclosure of the information—in which case it's absolutely non-disclosed—or it's out there fully in the courts, had you considered looking at a more nuanced and flexible approach that allowed for a better balance between the rights of the person and the specific needs of disclosure or non-disclosure in an individual case.

[Philippe De Massy]

May I just go back to the intention that we had in coming before this committee?

The question was, is Bill C-3 an answer to the objections that the Supreme Court saw to the process? We say no. This is why we are here.

[Sharryn Aiken]

If I may just point something out, the government has suggested that it's sufficient in Bill C-3 that the judge has broad discretion to make numerous orders. It's the CCR's view, and I think the view of my colleagues, that it's not sufficient to respond to these concerns by pointing to the discretion vested in a judge. The law needs to address very specifically the protections and safeguards required by due process.

[Sharryn Aiken]

Thank you for your question.

As I began to articulate in my brief remarks, and as our colleague from the B.C. Civil Liberties Association correctly noted, in our view the provisions of Bill C-3 will absolutely find their way back to the Supreme Court. They will not meet the requirements of section 7 of the charter. In CCR's views, Bill C-3 is deeply flawed, and it is not compliant with the requirements of the charter.

To focus specifically on the proposed special advocate model, both in a security certificate context and a section 86 context, I think it's very important to note that the Supreme Court, in Charkaoui, did not explicitly endorse the special advocate model. It cited the model, along with a range of other protections, as examples of procedures that are less rights-infringing than a security certificate procedure that was currently in place and under examination by the court.

The court did not say that the special advocate model, and certainly the model proposed in Bill C-3, would meet the requirements of section 7.

[Janet Dench]

It's not clear in the legislation as it stands. It's far from clear, and one of the things that the government has done in Bill C-3 is to take out the automatic judicial review that occurs currently in the legislation.

A PRA decision in the security certificate process is automatically subject to review by the Federal Court judge. They've removed that, so they've actually taken out some sort of connection between those two processes.

[Murray Mollard, Executive Director, B.C. Civil Liberties Association]

Thank you, Mr. President and honourable members.

It is always a pleasure coming from way out west to a place where when it snows the snow actually stays, unlike Vancouver, where we had a big dump, but of course it rains and it goes away in a very short time. So I thank you for giving me and our organization this opportunity.

I did want to start out by saying a little bit about the concern I think we have and that we've always stated whenever we meet with parliamentarians about national security matters. National security matters tend to invoke a lot of emotion, indeed at times I think panic, among the populace. But we've always said that in this context--and it's a very difficult context of balancing a variety of interests--we want our parliamentarians to be careful to take the time to deliberate on behalf of the collective sovereign, all Canadians, and to carefully consider this.

I'm very concerned. I'm worried about the amount of time you have. I understand the government has introduced the bill at a certain time, and you have to report out and you have to make decisions quickly because of the decision of the Supreme Court of Canada, but I'd urge you to take the time necessary to really fully understand the implications of this bill.

I'm happy to hear that you're going to be hearing from some other witnesses, but there are probably more you could hear from--and indeed, in your discussions internally, take the time to deliberate properly.

I'm going to begin my submission with respect to Bill C-3 by relating a conversation I had with Ian Macdonald, who is a barrister from England and somebody you may be familiar with and may have heard testimony from before. I understand he appeared before a parliamentary committee in Canada earlier this year. We had a conversation with him on July 6, 2005.

As you know, he was a special advocate in the English system but decided, after I believe up to eight years representing--and it's a good question about who he represents--the interests of at least testing information under their system before the Special Immigration Appeals Commission, that he could no longer sustain continuing his role because of his real concern that he was in fact just providing, in his words, a fig leaf, although we were discussing earlier today whether Justice Hugessen has also used that phrase.

In other words, he could not continue to play that role in a way in which he thought lended credence to a system that ultimately could not be sustained as fair and substantially providing due process to those subject to their system in England.

One of the keys for him--and there were a variety--was his inability to meet with the person who was subject to the order and to be able to discuss information that he had received and had reviewed after reviewing all the information before the tribunal. We're not just talking about national security information, because of course that requires some confidentiality, but indeed no ability to really have a discussion with his counsel and the person subject to that order.

That's in stark contrast to what occurred in the Arar inquiry. If you review Justice Dennis O'Connor's report, as I did last night, he'll make it very clear that it was really critical to any in camera hearings that the commission counsel, Mr. Cavalluzzo, was able to, after having seen all the evidence that the government held, have meetings with Mr. Arar and his counsel to be able to obtain suggestions and explore some of the evidence, as much as they could, given that national security confidentiality claim. Being able to explore that evidence as much as possible was very helpful going back into in camera meetings. That didn't occur, and it was one of the main reasons Mr. Macdonald decided to resign.

I wanted to take you then to the Charkaoui case, because after all that's why we're here. It's the decision of the chief justice and the whole of the court that is the reason we're here before you today and you're having to consider this legislation. I want to quote from paragraph 63; this is about halfway through paragraph 63:

The judge, knowing nothing else about the case, is not in a position to identify errors, find omissions or assess the credibility and truthfulness of the information in the way the named person would be. Although the judge may ask questions of the named person when the hearing is reopened, the judge is prevented from asking questions that might disclose the protected information. Likewise, since the named person does not know what has been put against him or her, he or she does not know what the designated judge needs to hear.

If the judge cannot provide the named person with a summary of information that is sufficient to enable the person to know the case to meet, then the judge cannot be satisfied that the information before him or her is sufficient or reliable. Despite the judge's best efforts to question the government's witness--

So we're talking about the judge questioning the government's witness.

--and scrutinize the documentary evidence, he or she is placed in the situation of asking questions and ultimately deciding the issues on the basis of incomplete and potentially unreliable information.

Paragraph 64:

Nevertheless, the judge's activity on behalf of the named person is confined to what is presented by the ministers. The judge is therefore not in a position to compensate for the lack of informed scrutiny, challenge and counter-evidence that a person familiar with the case could bring. Such scrutiny is the whole point of the principle that a person whose liberty is in jeopardy must know the case to meet.

And must have an effective ability to test that case.

Here, the principle has not merely been limited; it has been effectively gutted. How can one meet a case one does not know?

Those are the words of Chief Justice McLaughlin

So I ask you: if the judge isn't able to do that, how is the special advocate that is proposed under Bill C-3 able to do that, given that he or she is going to be in exactly the same position, in a sense, as the judge under the old system, or what exists now, until indeed Bill C-3 passes as is?

The answer is that the special advocate is in no better position to be able to assess that information without an absolute right to be able to go back before the named person on the certificate and his or her counsel and have a discussion.

Now, the joint committee on human rights in England has, in a report earlier this year, again found that there are fundamental flaws in the system of special advocates in England. I understand that in Canada we think we are doing better. I don't think that's the case, and we can maybe get into details about that later.

I want to go back to my discussion, though, with Mr. Macdonald. Ultimately, he said—and I believe he's testified to this fact before Parliament as well—you have to ask the question, is secret evidence and the security certificate process good anti-terrorism policy? In his submission he said that if the authorities only need really to conduct or to provide information to a judge that someone should be removed due to security concerns, the standard is going to be relatively vague. Indeed, this is information. It's not really evidence in the full understanding that we have as lawyers before administrative tribunals and courts, and this information really isn't pursued.

He said his worry, and I think it's very clear, is that the security officials--RCMP, CSIS--need not pursue that information in a way, investigate that information carefully, such that that evidence can become reliable intelligence to ultimately prevent terrorism. And that, after all, is the goal, I would think, to actually prevent terrorism. Indeed, that intelligence can't be converted into true evidence that would be able to be put before a court to pursue a prosecution.

I think the worry here is that, by definition, the security apparatus in Canada is going to cast their net broadly. We know—I don't think Mr. Arar is the only person—that the net is cast so broadly that people who really shouldn't be caught in that net are going to be caught, to their significant detriment. I understand that you, as parliamentarians, have a serious responsibility to ensure the national security of this country, but at the same time, I think Bill C-3 does not balance the civil liberties and the national security concerns in a way that is optimum. Indeed, I think it means it's almost certain that this legislation will be back before the Supreme Court of Canada. Fortunately, it takes years to get back there, rather than the shorter time it takes to come before you as parliamentarians.

I have other things to say, and I expect to have an opportunity as we get into questions.

Thank you very much.

[Sharryn Aiken, Former President, Canadian Council for Refugees]

I would like to begin my remarks by pointing the committee's attention in the direction of some historical context, namely the long history of problems and mistakes made by security intelligence agencies in this country, whether we're speaking about the RCMP or CSIS. We can look to the findings of the McDonald commission that investigated RCMP activity in the 1970s, the recently concluded Arar inquiry, or the Air India inquiry currently in progress, to note that the Canadian public—all of us—need to be very skeptical with regard to the credibility of undisclosed and untested evidence proffered by intelligence agencies in this country. That context is very important to keep in mind as we review the specific provisions of Bill C-3.

Like my colleague Ms. Dench, I would like to draw the committee's attention to a few provisions in Bill C-3 that perhaps have not received as much attention as others. In particular, there's section 86 of Bill C-3, which speaks about the use of secret evidence outside the context of the security certificate procedure. To quote from our brief—and I would note that these paragraphs from our brief were endorsed completely by the Refugee Lawyers Association in their brief, which you should have before you by now as well—essentially I'd like to draw your attention to the fact that Bill C-3 proposes the continued use of secret evidence, non-disclosed evidence, under section 86 in a wide range of cases.

The Immigration and Refugee Board, which convenes section 86 hearings, is much less able to meet the procedural fairness hurdles set out by the Supreme Court. The Immigration and Refugee Board is a quasi-judicial administrative tribunal, not a court, and while only some of its decision-makers are lawyers, none are judges. Hearings before the IRB are conducted with greater informality and fewer procedural protections than before a court, yet the potential consequences for persons affected include prolonged detention and removal from Canada, to a danger of persecution or torture, and they are the very same as in security certificate cases.

Section 86 is even broader, since it allows the minister to apply for the use of secret evidence during any admissibility hearing, detention review, or appeal before the Immigration Appeal Division. There is no requirement that the persons affected even be alleged to be inadmissible on security or criminality grounds. It is enough that the minister wants to introduce the secret evidence. Keep in mind, then, that secret evidence can be introduced in a section 86 context in a case alleging misrepresentation. It may be alleging some form of criminality, but not necessarily serious criminality. And we may even be talking about inadmissibility on the grounds of health or economic reasons. We're talking about vast powers to introduce secret evidence in the context of section 86. The Immigration and Refugee Board member's decision can be based on this secret evidence if the member considers it reliable, appropriate, and relevant. That's the test.

We would ask if the government believes that if some non-citizen's fundamental rights need to be violated because they represent a threat to security, why is the use of secret evidence not limited to cases in which the persons affected are alleged to represent a genuine threat to security? Indeed, every statement made by the government to date—and certainly in the frequently asked questions available on the government's website—seems to imply that the power to deal with secret evidence is only being used in cases involving people who actually constitute a danger to security, a danger to society, and are heard and ruled on by judges of the Federal Court. That's a false premise, as the Refugee Lawyers Association noted, but it doesn't seem that enough people are aware of this. We're talking about Bill C-3 as proposing the continued use of secret evidence in a much broader range of cases.

CCR would like to emphasize the Supreme Court's ruling in the Charkaoui case in response. Although Charkaoui dealt specifically with the security certificate procedures, the case had much to say about the use of secret evidence in the security context more generally. In that regard, I'd like to quote a couple of small paragraphs from the Charkaoui judgment:

The principles of fundamental justice cannot be reduced to the point where they cease to provide the protection of due process that lies at the heart of section 7 of the Charter. The protection may not be as complete as in a case where national security constraints do not operate. But to satisfy section 7, meaningful and substantial protection there must be.

Meaningful and substantial are the key benchmarks here.

The court goes on to note:

If section 7 is to be satisfied, either the person must be given the necessary information, or a substantial substitute for that information must be found.

A substantial substitute for that information, I would underscore again.

It's the CCR's position that the proposed use of the special advocate model in the context of section 86, as well as in the context of the security certificate procedure, fail miserably in meeting the Supreme Court's benchmarks and, indeed, that Bill C-3 in its entirety is deeply flawed as a result. It is not, as the government has suggested, even minimally compliant with the requirements of section 7 of the charter.

I would be happy to elaborate on this point in discussion.

[Janet Dench, Executive Director, Canadian Council for Refugees]

Thank you. My name is Janet Dench, and I am the Director of the Canadian Council for Refugees. I will be making this presentation with my colleague Sharryn Aiken, the former President of the Canadian Council for Refugees.

The CCR, an umbrella organization with more than 170 members throughout Canada, has been following the security certificate file for many years. We took a stand in the 1990s against rights violations inherent in the certificates. We commented on amendments made to the legislation during consideration of Bill C-11, which became the current Immigration and Refugee Protection Act, and we had intervenor status before the Supreme Court in the Charkaoui case.

We share the concerns already expressed by our colleagues from the Ligue des droits et libertés as to the need for allowing a larger number of witnesses to appear, and we underscore the importance of granting ample time to carefully study their submissions.

We have submitted a rather lengtht brief that we prepared, as well as a short summary. The time available will allow us only to present a very brief overview and to emphasize a few points, but we would be more than pleased to answer your questions on other aspects of our brief. I will proceed with the overview.

Canada's response to potential security threats should be founded on full commitment to human rights and should not rely on distinctions between citizens and non-citizens.

The use of secret evidence is a great threat to the principles of fundamental justice. Given this, any use of secret evidence must be kept to the absolute minimum and maximum safeguards must be provided to any person whose rights are at stake. If the safeguards are insufficient to allow the person to know and meet the case against them, the secret evidence must not be used.

The security certificate process should be eliminated.

The potential for the use of secret evidence in other immigration proceedings through section 86 is much broader than in security certificates and the rights safeguards are minimal. This aspect of Bill C-3 has not received the attention it deserves.

Canada must take seriously its obligation to protect non-citizens from removal to persecution or torture. The law needs to be amended in this regard to conform with international human rights instruments to which Canada is signatory.

I'm going to speak a bit about the last point, the issue of protection, which I believe has not been much addressed so far before this committee.

Persons subject to a certificate may have fled persecution in their home countries. Others may not have come to Canada as refugees, but once they are identified by Canada as linked to terrorism, they may face a strong risk of torture if they're removed to a country that practises torture. For these reasons, Canada needs to carefully apply the international obligations that exist under the refugee convention and the convention against torture.

There are a number of serious flaws in Bill C-3 in this regard:

One, it does not bring Canada into compliance with international human rights obligations by providing an absolute prohibition against return to torture and limiting exceptions to the non-refoulement principle to those contained in the refugee convention.

Two, the provisions relating to protection are weak and incoherent. If they are allowed to stand, they will almost inevitably lead to further litigation.

Three, a key problem lies with using the pre-removal risk assessment, known as PRA, to determine the person's protection. Under the PRA, a civil servant must balance the person's need for protection against the danger the applicant constitutes to the security of Canada. At the same time that the civil servant is deciding how dangerous the applicant is, the Federal Court judge is testing the minister's case against the person, including any allegations that the person represents a danger to national security. There is no coordination of these two processes; thus, the civil servant could decide that the person is too dangerous to merit Canada's protection, even while the Federal Court judge is concluding that the person is not quite as dangerous as the government is alleging.

Four, section 115 is added as a proceeding that can happen in parallel with the security certificate process. It appears that the intention is to allow for a re-assessment by a civil servant of a previous determination by the Immigration and Refugee Board that the person is a refugee. This represents a disturbing use of a provision that articulates Canada's most fundamental protection commitment, the principle of non-refoulement, to undermine a person’s status as a refugee.

In conclusion, the provisions relating to protection fail to provide the guarantees of principle and of procedure that are necessary to ensure that Canada respects the protection rights of the persons affected.

[Dominique Peschard, President, Ligue des droits et libertés]

My name is Dominique Peschard and I'm the President of the Ligue des droits et libertés. I will be sharing my 10 minutes with Mr. Philippe Robert De Massy, who is also with the Ligue des droits et libertés.

Mr. Chairman, ladies and gentlemen members of the committee, we are pleased to have the opportunity to appear before the committee on this very important issue. Indeed, in our opinion Bill C-3 raises fundamental human rights issues. On the other hand, it is with a certain distress and true displeasure that we were made aware of the whole consultation process of the committee before the bill is sent to the House for its third reading.

We were pleased to learn that an additional meeting will be held in order to allow Amnesty International, Human Rights Watch and the Canadian Arab Federation to testify. Nevertheless, some of the groups who asked to appear will not be heard by this committee, particularly those groups who are supporting individuals who are presently under a security certificate and groups supporting communities which are particularly targeted by security certificates and concerned with immigration issues and anti-terrorist measures in general. We would ask that you review this decision to ensure that all the groups and organizations who wish to be heard on this matter will have an opportunity to testify before you.

I will now focus on Bill C-3.

Until recently, Canada has always been considered in the world as a leader in the area of human rights. This unfortunately seems to have changed since the turn of the century, more particularly since September 11, 2001. Yet, the Immigration and Refugee Protection Act is one of the only statutes, to our knowledge, to specifically refer not only to the Canadian Charter but also to the international instruments.

Section 3(3) of the Immigration and Refugee Protection Act states:

(3) This Act is to be construed and applied in a manner that [...] (d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination [...]; [...] (f) complies with international human rights instruments to which Canada is signatory.

The objective of Bill C-3 is to eliminate from the Immigration and Refugee Protection Act the aspects which were judged unconstitutional by the Supreme Court in the Charkaoui case. Does the bill meet the requirements expressed by the court in an appropriate manner?

Let us recall some unequivocal statements in the decision. Paragraph of the decision, which deals with security certificates, reads as follows:

25. At the same time, it is a context that may have important, indeed chilling, consequences for the detainee. The seriousness of the individual interests at stake forms part of the contextual analysis. As this Court stated in Suresh: "the greater the effect on the life of the individual by the decision, the greater the need for procedural protections to meet the common law duty of fairness and the requirements of fundamental justice under section 7 of the Charter" (paragraph 118).

In paragraph 27, the court states:

27. The procedures required to conform to the principles of fundamental justice must reflect the exigencies of the security context. Yet they cannot be permitted to erode the essence of section 7.

The judgment describes the main element incompatible with the Charter as follows:

139. [...] section 78(g) allows for the use of evidence that is never disclosed to the named person without providing adequate measures to compensate for this non-disclosure and the constitutional problems it causes.

The primary innovation of Bill C-3 is the creation of the role of the "special advocate"; the expression "défenseur" used in the French version may be misleading, as it seems to imply that the person playing that role is truly the attorney as a named person. Does Bill C-3 actually offer "meaningful and substantial protection"—as was stated in the Charkaoui decision—compatible with the principles of fundamental justice? In our opinion, the answer to that question is no.

I will now give the reasons why we feel that these objectives have not been met.

The named person and his or her attorney will continue not to have access to the evidence adduced against him or her and will not be in a position to test this evidence in an adversarial proceeding affording a full answer and defence.

The special advocate is not bound by lawyer-client privilege and cannot really represent the named person since he or she cannot communicate with the person without permission from the judge and cannot share the secret evidence presented to the judge.

The cross-examination of the CSIS agents will probably be useless since, according to the testimony of former British special advocate Ian Macdonald before this Committee, the members of secret services usually have no personal knowledge of the facts they put forth as evidence.

A judge can receive as evidence elements which would not be admissible in a criminal trial: hearsay, opinions and so on.

There is nothing in Bill C-3 to prevent the judge from unknowingly receiving evidence or testimony obtained under torture and there is nothing the named person can do to oppose that.

The Ministers issuing the security certificates control the evidence: they are under no obligation to present the entire evidence, more particularly those elements of proof which would exculpate the named person. Yet, we know that CSIS destroys evidence. Recently, Adil Charkaoui, one of the persons under a security certificate, has addressed the courts upon his learning of the destruction by CSIS of the recordings of testimonies of which only written summaries were produced in evidence.

[The Chair, Conservative, Garry Breitkreuz]

I'd like to bring this meeting to order.

This is meeting number 7 of the Standing Committee on Public Safety and National Security. We are continuing our study 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.

I want to make a brief announcement before we turn to our witnesses. For the members of this committee, if it's all right with you, we have arranged a meeting for tomorrow afternoon, Wednesday, December 5, from 3:30 to 5:30. We will have three witnesses: Amnesty International, the Canadian Arab Federation, and Human Rights Watch.

Does anybody have a problem with that, or can I go ahead and line up that meeting? This is in relation to a motion that was put before the committee.

Mr. MacKenzie.

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

What I'm saying is that the appeal process is introduced in Bill C-3. It was not in the legislation that Bill C-3 is amending.

[Isabelle Dongier]

Thank you.

The Canadian Bar Association did provide very similar recommendations and criticisms of Bill C-3 in its submission, and our recommendations are similar to those of Mr. Waldman and Mr. Forcese.

[Pierre Poupart, Lawyer, Member of the Committee on Human Rights and Member of the Committee on Criminal Law, Barreau du Québec]

Good morning, my name is Pierre Poupart. I am a lawyer and member of the Quebec Bar. With me today are Mr. Langlais, an immigration lawyer, and Ms. Nicole Dufour, who is in charge of the Research and Legislation Service for the Barreau du Québec.

To begin with, I want to point out that the Barreau du Québec is a professional body whose primary mission is the protection of the public. It is an essential institution within a society such as ours, which is based on the rule of law. As such, it carries out its social responsibilities by standing up for fundamental values that are inherent in a free and democratic society, including equality under the law and respect for human rights.

The working group's report which, I hope, has been provided to Committee members, is the result of a lengthy period of reflection during which members of the Human Rights Committee of the Barreau du Québec, the Immigration and Citizenship Advisory Committee, and the Criminal Law Committee gave a great deal of thought, I have to say, to this issue for many months.

On February 23, 2007, in the Charkaoui ruling, the Supreme Court recognized the utility of the security objectives pursued through the security certificate process, specifying, however, that the latter should not be carried out at the expense of procedural fairness and principles of fundamental justice. On October 22, the Government of Canada tabled Bill C-3, which maintains the use of secret information while introducing a system of special advocates. The Barreau du Québec has concerns about the merits of such a solution, which does not seem to meet the requirements underlying the principles of procedural fairness and fundamental justice.

First of all, as regards continued use of secret information, a person subject to a security certificate will still be deprived of certain fundamental rights guaranteed under section 7 of the Canadian Charter of Rights and Freedoms, including disclosure of the evidence and the right to a fair hearing. Parliament seems to have decided to create the special advocate position to address the fundamental justice problem raised above.

Our first comment has to do with the fact that the special advocate will not necessarily be a member of a professional body that regulates the conduct of members of the legal profession. As regards the special advocate's role, the Bill talks about protecting the interests of the named person in specific circumstances. However, this central function, which is generally carried out by counsel, must be questioned. The special advocate, in particular, is retained and may be dismissed by the judge. Furthermore, as we pointed out, after seeing the secret information, the special advocate may no longer communicate with the person directly affected by it, except with the authorization of the judge. In our opinion, that process undermines the very essence of the duty of representation.

Finally, as laid out in subclause 85.1(3), the relationship between the special advocate and the named person is not that of a solicitor and client which we, as legal counsel, find extremely surprising. As a result, the special advocate does not seem to be bound by the same ethical obligations as a lawyer and there would be no mechanism for the Barreau du Québec to review anything that had been done by a special advocate. As a professional body whose primary responsibility is to protect the public, the Barreau du Québec is concerned about the protection given to a person subject to a security certificate under the current wording of this bill.

The solution we propose reconciles the demands of national security and the procedural rights guaranteed by the Canadian Charter of Rights and Freedoms. In that context, it is necessary to ensure that the evidence that is required is of adequate quality before an order is made regarding indefinite detention or deportation of the named person.

Many questions the current system as regards the content of the “evidence”. We are essentially talking about allegations or information provided by intelligence services in a number of other countries. That intelligence or information may not conform to the standards of reliability that our own legal system considers appropriate, in both civil and criminal matters.

In these cases, the evidence involves information whose probative value is determined on the basis of “reasonable grounds to believe”; you may wish to refer to section 33 of the Act. Introducing information into evidence based on that evidentiary standard has serious consequences if the information cannot be verified, because some of it may have been obtained from a variety of sources, some of which are reliable and others not, not to mention the fact, as others pointed out earlier, that some of the information may have been obtained under torture or through other forms of coercion, perhaps less spectacular but no less efficient.

The consequences for individuals directly against whom this evidence is used may include removal to torture or, worse, be fatal. Under the circumstances, it is important that there be a reliable mechanism for assessing information, in order to offset the weaknesses of the evidentiary regime. In order to meet procedural standards, the level of rights protection must be equivalent to that applied in the criminal law—in other words, the right to retain counsel, which is recognized in the Canadian Constitution.

However, this right becomes meaningless if counsel is not able to adequately represent his or her client, which would most certainly be the case if the current structure were to be retained. Accordingly, the use of secret information or intelligence in the security certificate process is inconsistent with such values as justice and fairness.

The solution adopted must provide for a procedure that guarantees appropriate respect for rights in a manner that is equivalent to the process laid out for criminal matters. Furthermore, the process must allow a court of law to terminate proceedings where the evidence is insufficient or unreliable, and where continuing an unfair process would cause further injury and prejudicially affect the integrity of the legal system.

The court must have access to all the evidence to be used and have the power, after hearing the arguments, to determine which evidence will be disclosed, as well as the validity of that evidence, based on the evidentiary principles underlying the criminal law.

As Lord Hoffman said:

The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these.

He was referring to similar legislation on another continent.

Having said that, we see this as an excellent opportunity not to allow ourselves to be motivated solely by fear which, although it may be the beginning of wisdom, must not drive the drafting of legislation in a free and democratic society. Section 7 of the Charter, if it means anything, is a clause that guarantees everyone the right to life, liberty and security of the person. If I am not mistaken, people who are not yet Canadian citizens certainly fall within the category of “everyone” and therefore have the right mutatis mutandis to protections which are just as rigourous as those guaranteed Canadian citizens.