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

This bill was last introduced in the 39th Parliament, 2nd Session, which ended in September 2008.

Sponsor

Stockwell Day  Conservative

Status

This bill has received Royal Assent and is now law.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

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.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Votes

Feb. 6, 2008 Passed That the Bill be now read a third time and do pass.
Feb. 6, 2008 Passed That this question be now put.
Feb. 4, 2008 Passed 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, as amended, be concurred in at report stage.
Feb. 4, 2008 Failed That Bill C-3 be amended by deleting Clause 1.
Nov. 20, 2007 Passed That the Bill be now read a second time and referred to the Standing Committee on Public Safety and National Security.

November 29th, 2007 / 3:35 p.m.
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Conservative

The Chair Conservative Garry Breitkreuz

I'd like to bring this meeting to order.

This is meeting 6 of the Standing Committee on Public Safety and National Security. We are continuing with our study of Bill C-3, an act to amend the Immigration and Refugee Protection Act on certificate and special advocate and to make a consequential amendment to another act.

We have a number of witnesses we'd like to welcome this afternoon. We have the law or bar association from Quebec. We have also the Canadian Bar Association and the Federation of Law Societies of Canada.

According to the information I have, you agreed among yourselves that the Canadian Bar Association would go first, then the Federation of Law Societies of Canada, and last of all the Barreau du Québec.

The usual practice at this committee is to allow approximately ten minutes for an opening statement from each of you. Then, of course, we go to rounds of questions and comments.

If you're ready to begin, please introduce yourselves briefly, and then go ahead with your presentation.

November 29th, 2007 / 10:40 a.m.
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Liberal

Ujjal Dosanjh Liberal Vancouver South, BC

I have only one question, and I'd like the three presenters to answer, if you so choose.

I'm not sure whether you're all familiar with the report that's been submitted by the two previous presenters, Mr. Waldman and Mr. Forcese. Would you say, if I were to ask you generally, that if we were able to implement all of their recommendations, that most of the concerns of the two presenters, Mr. Mia and Mr. Allmand, would be obviated or would be met?

I know Ms. Basnicki said that Bill C-3 is fine, but if it could be improved by general consensus, would you agree that it should be?

November 29th, 2007 / 10:35 a.m.
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Member of Steering Committee, International Civil Liberties Monitoring Group

Warren Allmand

Oh, okay.

I refer you to those sections sent to the commission against torture.

I'll wrap it up, Mr. Chair, by saying that what makes this bill even more unacceptable is the fact that none of the recommendations made by Judge O’Connor in his Arar inquiry report, more than a year ago, have been implemented. He recommended an oversight and review agency for all of the agencies collecting security intelligence information. That has not been done. If it had been done, we might have more faith in the type of information that was being put forward for security certificates.

I guess my final word is that Bill C-3 does not meet the requirements of the judgment of the Supreme Court, the nine to nothing judgment last February. I was going to deal with the question of how we deal with Canadian citizens. We have to go before the courts under the criminal justice system, and they may be as bad or worse than landed immigrants or non-citizens, but we have to prove the case against them in a court of law, according to all the rules of due process, Mr. Chairman, and that's not the case here.

November 29th, 2007 / 10:25 a.m.
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Warren Allmand Member of Steering Committee, International Civil Liberties Monitoring Group

Thank you, Mr. Chairman. I apologize for being late. I was stuck for an hour on the 417, coming into Ottawa, because of an accident in front of me.

My name is Warren Allmand. I'm here with Roch Tassé, representing the International Civil Liberties Monitoring Group, which is a coalition of over 30 NGOs, unions, faith groups, and other civil society organizations that came together in the aftermath of September 11, 2001, to monitor the impact of anti-terrorism measures on human rights and to advocate against violations of national and international human rights standards.

As you know, on February 23, 2007, the Supreme Court ruled unanimously that security certificates used to detain suspected terrorists under the Immigration and Refugee Protection Act were unconstitutional. The certificates allowed government officials to use secret court hearings, untested allegations, indefinite prison terms, and summary deportations when dealing with non-citizens accused of having terrorist ties.

Chief Justice McLachlin, speaking for the entire court, said that the procedures for determining whether a security certificate was acceptable infringed section 7 of the charter. She went on to say at the beginning of her judgment:

The right to a fair hearing comprises the right to a hearing before an independent and impartial magistrate who must decide on the facts and the law, the right to know the case put against one, and the right to answer that case. While the IRPA procedures properly reflect the exigencies of the security context, security concerns cannot be used, at the s. 7 stage of the analysis, to excuse procedures that do not conform to fundamental justice. Here, the IRPA scheme includes a hearing and meets the requirement of independence and impartiality, but the secrecy required by the scheme denies the person named in a certificate the opportunity to know the case put against him or her, and hence to challenge the government’s case.

A little further on, in paragraph 54 of her judgment—and I think it's important to refer to these sections—she says:

Under the IRPA's certificate scheme, the named person may be deprived of access to some or all of the information put against him or her, which would deny the person the ability to know the case to meet. Without this information, the named person may not be in a position to contradict errors, identify omissions, challenge the credibility of informants or refute false allegations.

In paragraph 64, she says:

the principle that a person whose liberty is in jeopardy must know the case to meet. Here that principle has not merely been limited; it has been effectively gutted.

Those are her terms: “has been effectively gutted.” She continues:

How can one meet a case one does not know?

She goes on to say that this infringement of section 7 and sections 9 and 10 is not saved by section 1 of the charter. As you know, you can have an infringement under certain sections of the charter, but they can be saved if they meet the standards in section 1. She says they don't meet the standards in section 1; therefore, they're not saved.

Finally, she says that the declaration is suspended for one year from the date of the judgment, in order to give the government time to come up with something that will meet the requirements of the Constitution.

The only major difference between this Bill C-3 and the previous law is the introduction of the special advocate. The key provisions that prevent the right to know the case against you remain the same. Consequently, after careful examination, it's clear that this provision—the special advocate provision—does not overcome the Supreme Court's arguments and decision of illegality. It does not save or sanitize the security certificate process. There is still no due process, and charter sections 7, 9, and 10 are still not respected.

Mr. Chairman, the suggestion that the Supreme Court recommended this solution, the special advocate solution as set out in this bill, is not correct. Chief Justice McLachlin did refer to several possible models—she referred to the SIRC model, to articles 37 to 39 of the Canada Evidence Act, to the process used in the Air India trial, to the process used in the Arar inquiry, and to the U.K. special advocate system—but she did not give her approval to any one of them.

In paragraph 87 of her judgment she said:

Mechanisms developed in Canada and abroad illustrate that the government can do more to protect the individual while keeping critical information confidential than it has done in the IRPA. Precisely what more should be done is a matter for Parliament to decide. But it is clear that more must be done to meet the requirements of a free and democratic society.

Then in paragraph 61, further to that same point, she states:

In the context of national security, non-disclosure, which may be extensive, coupled with the grave intrusions on liberty imposed on a detainee, makes it difficult, if not impossible, to find substitute procedures that will satisfy section 7. Fundamental justice requires substantial compliance with the venerated principle that a person whose liberty is in jeopardy must be given an opportunity to know the case to meet, and an opportunity to meet the case.

Then at the end of that paragraph, she says:

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. Neither is the case here.

Of course, she is talking about the situation that was in place before the case went to the Supreme Court.

Mr. Chairman and members of the committee, under the present bill a judge can still authorize a security certificate on the basis of vague and undefined allegations rather than on precise charges; on secret and dubious information. And the bill does not prohibit, as my colleague just said, the use of information produced under torture.

Bill C-3 is a serious departure from the legal values of this country because it betrays the lawyer-client privilege contained in the charter; the individual has no choice in the special advocate assigned to him or her; it gives augmented powers to law enforcement and intelligence agents, who have made grievous errors in the past; and it can result in indefinite detention on the basis of a low standard of proof. The standard of proof, as you know, is that the certificate is reasonable; it is not based on hard evidence.

The people who are producing the information to support security certificates are the same people who said that Maher Arar and his wife were Islamic extremists linked to the al-Qaeda terrorist movement; that Mr. Arar was in Washington on September 11, 2001, when he was in San Diego; that he travelled from Quebec when he had a coffee in Ottawa with Mr. Almalki, when in fact he lived in Ottawa; that he refused to be interviewed by the police, when in fact he had agreed to be interviewed with his lawyer; and that he then left suddenly, after this request for an interview, for Tunisia, when in fact he left five months later.

I want to ask you, members of the committee, is this the type of information that should be the basis of long-term detention? Under Bill C-3, the special advocate would have access to the secret evidence but could not discuss it with the person involved. Not only would the person not have the opportunity to deny the information or justifiably explain it, but he would not have the opportunity to provide other evidence to support his side of the story. The informants might even leave out certain positive information that could help the individuals, simply to strengthen their case against the individual.

The International Covenant on Civil and Political Rights, which Canada ratified in 1976, states the following, in article 14, paragraph 3(a). It says that a person has “to be informed promptly and in detail in a language which he [or she] understands the nature and cause of the charge against him”.

Pardon me?

November 29th, 2007 / 10:15 a.m.
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Ziyaad Mia Former Board Member, Chair of the Advocacy and Research Committee, Canadian Muslim Lawyers Association

Thank you, Mr. Chair.

Good morning, everyone. Thank you for taking the time to hear our testimony.

I think I'm going up against Karlheinz Schreiber, so I'm probably not going to get much attention today. That's like going against Mike Tyson, I guess, with my hands cuffed. So I'll do my best. I guess a lot of people want to go there. I think I'll go there after as well.

My name is Ziyaad Mia. I'm the chair of the research and advocacy arm of the Canadian Muslim Lawyers Association. I'm a past board member of that association as well. We have been involved in national security policy and legislation issues for a number of years now. We've testified on the Anti-terrorism Act, the Public Safety Act, security certificates, and we've tried to work in a cooperative way to try to develop security legislation and policy that is consistent with Canadian values.

Today, we're happy to speak about Bill C-3. Just at the outset, and I think you've heard it several times, but I've received several personal messages and phone calls from many other groups who are directly interested in this issue, more directly, even, than my organization, representing some of the men detained and their families, and can speak directly to those issues. I'll try my best, but I can't replicate what they'll be able to tell you.

November 29th, 2007 / 10:05 a.m.
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Founder Director, Canadian Coalition Against Terror

Maureen Basnicki

Good morning.

My name is Maureen Basnicki. My husband, Ken Basnicki, a proud Canadian, was murdered by al-Qaeda terrorists in New York on September 11, 2001, while attending a meeting on the 106th floor of the north tower of the World Trade Centre. Ken was one of 24 Canadians murdered that day.

I am here as the founder of C-CAT, the Canadian Coalition Against Terror. C-CAT is a non-partisan advocacy body comprised of Canadian terror victims from every walk of life and faith group, as well as counter-terrorism professionals, lawyers, and other individuals committed to enhancing Canada's counter-terrorism policy.

My comments before this committee will be focused primarily on the issue of terrorism as it relates to security certificates, not on the broader categories of inadmissibility set out in the Immigration and Refugee Protection Act.

I would argue that the most crucial role of security certificates pertains to terrorism, and in particular to the prevention of terrorist acts.

When Canada removes non-Canadian citizens with past records of criminality, or even war crimes, we are making an important statement about our Canadian values and acting to maintain the integrity of Canada as a society. But when Canada removes non-Canadian citizens where there are sufficient grounds to believe they are planning to murder Canadians, to bring down our subways, our school and our water systems, that is more than a statement about Canadian values; that is about saving human lives.

In most of my previous appearances before parliamentary committees and the Air India commission of inquiry, I have testified on behalf of the victims we represent about issues related to counter-terrorism and the rights of terror victims. Today, I am here to speak on behalf of those Canadians who are not yet victims and their rights, to speak about a fundamental right of every Canadian and every human being: the right not to be a victim of a terrorist attack. This is expressed in more general terms in section 7 of the charter of rights, which guarantees the right to life, liberty, and security of the person. There is a corresponding obligation of the Canadian government to ensure that such rights are protected.

I fully concur with British Minister Ian Pearson, who stated in the aftermath of the 2005 London bombings, that there is no human right more sacred than the right to be alive, and without this human right all others are impossible.

It would therefore be an error to perceive the security certificate debate only as a conflict between civil rights and security imperatives. That language obscures the fact that, in truth, this is a debate about determining the appropriate equilibrium between the rights of non-Canadian citizens subject to a security certificate and the rights of all Canadians who are potential targets of a terrorist act by such an individual.

It is C-CAT's view that Bill C-3, drafted according to the directives of the Supreme Court of Canada and two parliamentary committees, has struck the appropriate balance between protecting the rights of the individual named in the certificate and protecting the rights of the ordinary Canadian to be spared victimhood of the type that I and hundreds of other Canadians have suffered.

Security certificates are giving greater latitude to authorities, ensuring that individuals who are not citizens of Canada and are suspected of having committed or are planning to commit the most egregious offences, such as terrorist acts, cannot remain in Canada, disappear into the woodwork, and harm Canadians.

The ability of the government to detain and remove dangerous non-Canadians from Canada, while protecting sensitive information, implements a critical national objective. This is especially true, in my view, if the security certificates are able to prevent a terrorist act.

According to the 2003 public report of CSIS, safeguarding against the possibility of a terrorist attack occurring in or originating from Canada is the highest national security priority. The strength of Bill C-3 is that it provides a tool to protect Canadian citizens while protecting the rights of an individual subject to a certificate. In fact, it could be argued that when comparing the rights of the individual named in the certificate with the rights of the potential victims, should that named individual actually commit a terrorist act, one could easily conclude that this person's rights have taken precedence over those of the potential victims.

Here are a few examples.

First, any individual detained under the legislation can be released from detention at any time should that individual agree to return to his or her country of origin or to a third country. The choice is that of the detainee.

In contrast, the potential victims of these individuals are given no choices. They cannot choose to leave the location of a terrorist incident. My husband and 3,000 others that day in New York had no such choice. Neither did the 331 people murdered in the Air India bombing.

Second, the Supreme Court of Canada has explicitly noted that detention under a security certificate is not cruel and unusual punishment if accompanied by a process that provides for regular detention reviews. Bill C-3 has created such a process, and a very fair one at that.

It seems to me that a person choosing to remain in detention until the resolution of the process, while benefiting from three meals a day, a stocked kitchen, an exercise room, a television, visits from his or her family and religious leaders, as well as regular reviews of his or her detention and the opportunity to appeal decisions at taxpayers' expense is not suffering cruel and unusual punishment.

But cruelty of the most exceptional sort is precisely what could befall Canadians if a terrorist should slip through our system; cruelty of the type that forced couples trapped in the World Trade Center to jump 100 floors, holding hands, to their deaths; cruelty of the type that killed every man, woman, and child on board Air Canada Flight 182, either from the immediate explosion of the suitcase bomb planted in the cargo or from drowning in the Atlantic Ocean after falling thousands of feet out of the plane.

I cannot help but add that in contrast to the detainees, who have access to an on-call psychiatrist, Canadian terror victims and their families have had to pay out of pocket for much needed psychological counselling. This issue has been raised by Air India family members, who testified at the Air India Inquiry that they were in need of counselling after the attack but did not have the necessary resources to obtain it themselves.

Lastly, any individual subject to a security certificate is entitled to a special advocate, who will have access to classified evidentiary materials and can challenge the minister's claim to the confidentiality of these materials as well as their relevance, reliability, sufficiency, and weight. But for the potential victims of such a named individual, our legal system provides no special advocates or other assistance to address the legal needs of victims after a terrorist attack.

All in all, given the dire and irreversible consequences in store for Canadian citizens if an error is made in favour of an individual named in a certificate who then commits a terrorist act, Bill C-3 has given considerable leeway to these individuals.

If for some the concern regarding the potential abuse of security certificates still supercedes the concern for saving real lives from the very real threat of terrorism, they should consider the following. By assisting authorities in preventing a major terrorist attack, these rather modest provisions will have protected our legal system from the inevitability of coming under even greater pressure, in the aftermath of an attack, to enact measures even more stringent and controversial in order to more adequately protect Canadians from other attacks. This possible backlash, resulting in even tougher laws that would go much farther than Bill C-3, is surely a scenario that all sides of this debate wish to avoid.

Members of the committee, given the unprecedented security challenges presented by terrorism as well as some of the obvious limitations of our criminal justice system in prosecuting the perpetrators and sponsors of terrorist attacks, security certificates are sorely needed. We must face the fact that terrorism is not another form of ordinary criminality. Terrorism is different in its scope, intent, method, and consequence. Combatting terrorism has pushed to new extremes what the Supreme Court has described as the “tension that lies at the heart of modern democratic governance” between “imperatives both of security and of accountable constitutional governance”.

We believe that Bill C-3 has found a reasonable and effective accommodation that addresses this tension, fulfilling the base requirements of both imperatives. Terrorism requires special technologies, policies, and legal structures to protect Canadians. Bill C-3 is a very good step in this direction, and on behalf of C-CAT and the terror victims we represent, we wish to voice our support for this bill.

November 29th, 2007 / 9:35 a.m.
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Associate Professor, Faculty of Law, University of Ottawa, As an Individual

Prof. Craig Forcese

Thanks very much for the question.

The first point to note is that Bill C-3 right now doesn't affirmatively close the door to continued access. It leaves it in the discretion of the judge.

A similar rule in the United Kingdom has produced virtually the absence of access. There is no continued access. Why? Because a similar rule in the United Kingdom has been applied, such that the special advocate, if they wish to communicate with the individual after they've seen the secret evidence, must do so in writing, and their questions must be vetted by the government.

No lawyer worth their salt is prepared to pose a question to an individual whose interests they're supposed to represent when it's first going to be vetted by the government for fear that the very fact of asking the question could be prejudicial to their interests.

In practice, there's no continued access. This has been the single most controversial aspect in the United Kingdom system.

In terms of the implications of absence of continued access, I can recount you a story that was, in turn, recounted to us by the SIRC special counsel, who does have continued access in SIRC proceedings.

If he were here, he would tell you of one case in particular where at issue in the SIRC proceeding was whether an individual had been in a certain country at a certain time. I don't know what the country is. Let's assume it was Afghanistan in the late 1990s, and the presence in Afghanistan in the late 1990s would have suggested that there might have been some problematic aspect to this person's behaviour. Obviously, having been apprised of that information, the independent counsel could not go directly to that person and ask if they were in Afghanistan in 1997 because that would of course betray the basis of the government case and potentially be prejudicial to national security. So all the special advocate asked for was the CV of the individual, which the security service had never thought to ask for. On that CV was an entry by which, upon follow-up, the special advocate of the independent counsel was able to establish, verifiably demonstrated, that this individual had not been in Afghanistan during the material period.

Here is an example of continued access: a very banal question that one would have hoped the security service would have asked in the first place, a very banal question being posed that caused the government's case to collapse ultimately. The entire government's case was predicated on this issue and the government's case was undermined as a consequence of this very banal question.

Speaking to SIRC and to independent counsel, there's never been an allegation that this continued access by SIRC legal counsel to individuals has been prejudicial to national security, that there's been an involuntary disclosure.

We acknowledge that there should be an affirmative obligation on the independent counsel not to disclose the secrets. We believe that any lawyer worth their salt can pose a question in a manner that extracts useful information but does not betray a national security confidence.

That was the case for the Arar commission, and I'm sure Lorne could describe how little information he was able to glean from any of the questions that were posed to him by the Arar commission counsel.

November 29th, 2007 / 9:30 a.m.
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NDP

Penny Priddy NDP Surrey North, BC

Thank you, Mr. Chair.

I will take the very first few seconds, if I might, to say that I have had many letters, even in the last 24 hours, from organizations that are concerned that they have not had an opportunity to testify. I wanted to put on the record that correspondence had been received from groups like the Coalition for Justice for Adil Charkaoui, the Justice for Mohamed Harkat committee, Amnesty International, Human Rights Watch, and the Canadian Arab Federation. I may have missed some, but those are the ones that I've heard from, and I wanted to note their concern that they had information they thought the committee should hear and were not being afforded the opportunity to speak before the committee.

I would like to ask either Mr. Forcese or Mr. Waldman this: if there is not an open communication between the special advocate and the detainee, as it is currently stated in Bill C-3 would not be the case, at least not once the special advocate had reviewed the information, could you speak to both what you might see as the legal implications of that, in terms of the court system, and what you would see as the moral and justice implications, if you will?

November 29th, 2007 / 9:10 a.m.
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Prof. Craig Forcese Associate Professor, Faculty of Law, University of Ottawa, As an Individual

Thanks very much, Lorne, and thanks to the committee and to the chair for having us here today.

As Lorne noted, we're proposing a series of relatively minor amendments to Bill C-3 that incorporate these key objections that Lorne has raised. We have tabled a document with you that is essentially an annotated version of Bill C-3. The amendments we're proposing amount to maybe 500 words, and with those 500 words we think Parliament could graft onto Bill C-3, as presently constituted, something analogous to what happens in SIRC.

The two key areas enhanced in these proposed amendments are, first of all, an absolute statutory obligation on the government to disclose everything--all relevant information--so in our proposed language here we define what we mean by “relevant information”. We impose the obligation to disclose all relevant information on the government. We then certify or allow the special advocate to challenge the scope of disclosure by the government and then to seek the assistance of SIRC, which would have access to all the government information, to certify that in fact there has been full disclosure. This is a way of wrapping SIRC, which has a statutory authority to see all the information in the possession of CSIS except cabinet confidences, into the process of scrutinizing the scope of disclosure.

Now I want to underscore that we're not proposing this because we think that just in principle it's a good idea; we're proposing it because in the United Kingdom the special advocates told us they don't get to see everything. They take the view that there is an obligation on the government to disclose all information, including exculpatory information, but the special advocates in the U.K. have told us that there are instances in which they have discovered exculpatory evidence in case A that was not disclosed, and they only find this out through happenstance in case B. We want to pre-empt this possibility.

The other reason we're urging a statutory full disclosure obligation is the Arar commission experience. Counsel for the Arar commission told us that but for the fact that he could subpoena information above and beyond what the government thought was relevant, the truth in relation to Mr. Arar would never have come out. Both of these experiences drive our recommendation in this area.

As Lorne noted, there is a second broad area that we think requires tinkering. It is to apply an affirmative right for the special advocate to continue to communicate with the interested party after they have seen the closed information, the secret information. That is a practice, as Lorne noted, that is available in SIRC. Outside counsel for SIRC, who we hoped would be able to attend today but is not able to because he's in court right now, told us quite emphatically that he has seen cases collapse because he was able to ask for information that did not betray any secret that this counsel had in his possession. He was able to ask for information from the interested party that then prompted the government case to collapse in a SIRC proceeding.

That experience again--this practical, on-the-ground experience--suggests that it's vital for this special advocate to have continued access to the interested party, subject to an obligation not to disclose a secret, so the questioning would have to be oblique, but even oblique questioning, we're told, has resulted in the special advocate receiving information that causes government cases to collapse.

The last point I'll make, because I know our time is coming to an end here, is about an issue that Lorne did not raise. We have here a requirement in the bill that a summary be prepared for the interested party themselves. It is a summary prepared initially by the government and then endorsed by the judge, essentially. That summary, right now, contains information that a judge decides does not impair national security.

That is a very different standard from the standard applied in our Canada Evidence Act. In the Canada Evidence Act, information that raises a national security interest can be released if that interest is outweighed by a public interest in a fair trial. So there's a balancing that goes on in the Canada Evidence Act.

The absence of a balancing in this bill renders this bill, in our view, inconsistent with the House of Lords' recent determination at the end of October. The House of Lords in the United Kingdom ruled that in the United Kingdom the special advocate system there, which does not allow a balancing either, was too restraining. So it's likely that in the next few months we'll see a change in the U.K. system that will allow the adjudicator in these U.K. proceedings to weigh the national security interest against the fair trial interest. We're proposing a total of 25 or 30 words of amending language that would create a balancing test in the IRPA context.

I know we're out of time and I know there are probably some questions, so let me end there.

November 29th, 2007 / 9:05 a.m.
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Conservative

The Chair Conservative Garry Breitkreuz

I'd like to bring this meeting to order. This is meeting number 5 of the Standing Committee on Public Safety and National Security.

Today, we are examining Bill C-3, An Act to amend the Immigration and Refugee Protection Act, focusing on certificates and special advocates, and to make consequential amendments to any other acts.

For the first hour this morning we would like to welcome two witnesses to our committee, Professor Craig Forcese and Mr. Lorne Waldman.

We have one hour with you gentlemen. You may make an opening statement for approximately 10 minutes. I suppose you know the practice at the committee is then to go around, and I'll offer questions and comments.

Ms. Priddy, do you have a comment?

November 27th, 2007 / 5:05 p.m.
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Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

I know many proceedings on appeal, but none that is as restrictive as the one you have devised in this instance.

Could you tell me where you found the model for the right of appeal in Bill C-3?

November 27th, 2007 / 4:50 p.m.
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Warren Woods Senior Policy Analyst, Operational Policy Section, National Security Policy Directorate, Department of Public Safety and Emergency Preparedness

Yes.

If I understand correctly, the committee that studied the Anti-terrorism Act, and it also included the study of IRPA in their jurisdiction, were concerned with the Federal Court process that was a dual process. It included both an assessment as to whether or not the certificate was reasonable and it also determined if a pre-removal risk assessment issued by the Minister of Citizenship and Immigration was lawful. So it had this double assessment process, and that process was complex and it led to delays in the issuance of both PRRA decisions as well as reasonableness findings from the Federal Court.

This played out in a number of cases, so the committee recommended that we eliminate the suspension that suspends the reasonableness hearing. So this has been done in Bill C-3. That's been done, and it goes further than that. It allows the reasonableness hearing to proceed in parallel with an application for refugee protection or an application for a pre-removal risk assessment, so that's what you're reading in subclause 77.(3).

November 27th, 2007 / 4:30 p.m.
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Conservative

Rick Norlock Conservative Northumberland—Quinte West, ON

I think we've approached some of the very tender subjects, some of the most important parts of the legislation that the anti-terrorism committee looked at, even though they weren't necessarily part of the act, as Mr. Cullen indicated.

I have had some people approach me, average Canadians, who believe that Bill C-3 is being very generous to people who are foreign nationals. They have the right to expect to be treated in accordance with Canadian law, but they also have the right to leave the country if they feel they're ill done by. That's the so-called three-sided jail.

One of the other issues that surrounds us in these times of great need in our country, which we hear both in this place and out in the communities, is the cost of doing business in governance. One of the issues that was brought up, and it's not to demean the process but to actually bring some light to the process to the average person on the street who listens to the esoteric arguments and some of the discussions that go on here, is have we costed it out?

One of the important things that we see in our judicial system is the cost of doing business and the cost of providing legal representation. Have we costed out some of the provisions that are being suggested? In other words, how much more is this going to cost the Canadian taxpayer? I guess what I'm trying to say is that good lawyers don't come cheap.

November 27th, 2007 / 4:20 p.m.
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Liberal

Roy Cullen Liberal Etobicoke North, ON

It goes back a bit, but in the course of looking at that, the decision was made by the subcommittee to include the review of security certificates, even though it's under the Immigration and Refugee Protection Act.

It's interesting that you're leading on Bill C-3, sir, and not the Minister of Citizenship and Immigration, but maybe this is the new reality. It's the processing. Frankly, I'm not that interested.

I have a few points on a couple of the issues. One of the things our subcommittee concluded—admittedly with dissenting opinions from the Bloc and the NDP—was that security certificates were still required, but some improvements had to be made to the process. We felt we were in pretty good company with the Supreme Court. I can't remember which decision came first.

One of the compelling things for me was when we heard from Paul Kennedy at the very first subcommittee. He was not the complaints commissioner at the time; he was a senior official at Public Safety and Emergency Preparedness Canada. He brought a file concerning an alleged Iranian assassin. It was in a thick binder, and he had whited out all those things that would compromise national security and confidentiality. He took the committee through the whole dossier.

There was a member from the B.C. Civil Liberties Association sitting at the table on the panel. I remember asking him if he would like to have this individual as his next-door neighbour. He said no, he wouldn't. I said, “So your problem is...?” He said, “Well, it's the process”. We're on the same page. We think the process needs improvement.

There's something in the response in Bill C-3 that I'm a little curious about and a little disappointed in. Our subcommittee had recommended a special advocate counsel, like a cadre, that would look at not only the security certificates process, but also a few other processes, like the deregistration of registered charities, denial of charitable status, and applications for the disclosure of information under the Canada Evidence Act. There have been allegations—and I think with some merit—that these have star chamber types of characteristics to them as well.

The government's response this summer sounded lukewarm. It said: “At the present time, the government believes that further study of the use of special advocates in other processes is required.” Reading between the lines, I don't know if that means we don't agree and we're deep-sixing it, if there is a study, or if there is a study, what the timelines are.

What are some of the issues that were presented in not adopting these recommendations at the same time? I'm not pretending that we own a monopoly on truth and wisdom on these, but are you looking at developing a cadre to be used for these other processes as well?

November 27th, 2007 / 4:15 p.m.
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Conservative

Gord Brown Conservative Leeds—Grenville, ON

That gets to my next question.

You've outlined the specifics of Bill C-3, but so that all of us can really appreciate the context of this bill, can you confirm that the Supreme Court actually upheld the constitutional validity of all existing security certificate processes of arrest and detention, the withholding of information to detainees on the basis of national security, extended or uncertain detention or restricted release, the notion that the rule of law permits restricted rights of appeals in presumptive detention in the security and immigration context, and that section 6 of the charter notes that non-citizens do not have a charter right to enter or remain in Canada?

Are you confident that the Supreme Court will uphold the constitutional validity of what we're proposing here in Bill C-3?