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 20th, 2007 / 4:20 p.m.
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Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

I can understand that C-3 is a priority, and I accept that completely. But it seems to me that meeting the new RCMP Commissioner is also a priority. He was appointed some time ago now and it is important for us to understand how he sees the future of the RCMP and what his immediate plans and priorities are.

It is also important for us to make suggestions on some of those priorities and to ask him questions about them. I am sure that if he had been appointed in the middle of a session, we would already have found the time to meet him. We should do everything possible, and more, to meet him before the Christmas break.

November 20th, 2007 / 4:20 p.m.
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Conservative

Rick Norlock Conservative Northumberland—Quinte West, ON

As a result of what the analysts have just said, I'd like to reinforce that. I think we need to go ahead with the witness protection program, with the proviso that as soon as Bill C-3 clears the House and comes to the committee, that it be our priority. If that's what the researcher is suggesting, then I think it's a good idea.

November 20th, 2007 / 4:20 p.m.
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Committee Researcher

Philip Rosen

My colleague, Ms. Casavant, is doing the work on this. Essentially what we're suggesting is that we're very close to submitting a draft instruction document to you so we can get drafting instructions and write the report while you're doing other things.

The Air India commission of inquiry has heard from these experts. Yvon Dandurand has written a comparative paper on witness protection programs in various parts of the world, not just the United States. He's from British Columbia. Anne-Marie Boisvert is a professor of law at the University of Montreal. Our suggestion is that if there is time we might have a panel of these two individuals, assuming they're available. Then you could give us drafting instructions and we could be drafting, for example, in the December-January period, while you're hearing evidence on Bill C-3, assuming you can get these people to come here fairly quickly.

November 20th, 2007 / 4:15 p.m.
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Conservative

The Chair Conservative Garry Breitkreuz

Okay. We are finished.

Let's move over to the next item of business, which is future business of the committee.

As has been the practice of this committee, we usually do that all together. I am now open to consideration of future business of the committee.

I just want to let the committee know that I believe we are voting on Bill C-3, and assuming that it is passed and referred to the committee, that could possibly be our first item of business. I don't know if we're ready to do that by Thursday because we'd have to call witnesses, so that could be a challenge. I put that before the committee, if that may be the first thing you'd like to deal with next Tuesday.

Mr. Dosanjh.

Immigration and Refugee Protection ActGovernment Orders

November 20th, 2007 / 11:30 a.m.
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Conservative

James Bezan Conservative Selkirk—Interlake, MB

Mr. Speaker, the hon. member's intervention today was a very good presentation on why we need security certificates and how the legislation is taking into consideration the concerns expressed in the past on security certificates, including those from the Supreme Court, and how it has been adapted to meet those concerns.

However, the member raises a great point, which is that this legislation does not violate the Charter of Rights and Freedoms and that this is about protecting Canadians first. It is about making sure that in regard to any concerns we have about terrorist threats in this country and criminal elements who are non-Canadians, who are not citizens or residents of this country but who happen to be here, those persons can be placed under security certificates, now under the auspices of not only having a judge issue these certificates, but having a lawyer advocate on their behalf.

I think the legislation meets the needs of the person in question who is going to be placed under a security certificate. That has been expressed by the Supreme Court. Also, it protects Canadians.

When it comes down to it, we have to take into consideration the health and well-being of Canadians. Trying to prevent as much as possible any of these terrorist elements from being in our country has to be of utmost concern to Parliament. Therefore, I am very glad to see that the hon. member is supporting Bill C-3.

I have a question for the hon. member. There are divisions in the House. Some fairly far-fetched arguments are being presented by members of the other parties, including members from his own party. I would ask that he broach this topic. How do we bring those members who are not supporting the bill to the table, especially those in the Liberal Party, to say yes, we are going to stand up for Canadians and protect Canadians, and security certificates are the right way to prevent terrorism in this country?

Immigration and Refugee Protection ActGovernment Orders

November 20th, 2007 / 10:50 a.m.
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Bloc

Meili Faille Bloc Vaudreuil—Soulanges, QC

Mr. Speaker, I am pleased to rise today to speak to Bill C-3, the legislative framework proposed by the Conservative government in response to the recent ruling by the Supreme Court concerning security certificates, which are used to remove people who, in the eyes of the government, present a threat to Canada or Canadians.

At present, two ministers give authorization to issue such a certificate: the Minister of Public Safety and the Minister of Citizenship and Immigration. The current security certificates procedure is set out in the Immigration and Refugee Protection Act passed in 2001. It provides that the ministers of Citizenship and Immigration and Public Safety and Emergency Preparedness can sign a security certificate attesting that a permanent resident or foreign national—and not a citizen—is inadmissible to Canada for security reasons.

Once the security certificate is signed, it goes to the Federal Court. When the court deems that the disclosure of certain evidence or testimony would be injurious to national security or the safety of any person, it holds in camera hearings without the accused’s lawyer and the accused. This procedure makes it impossible to cross-examine witnesses heard behind closed doors or to verify the reliability and truthfulness of the evidence.

The judge gives the accused a summary of the information or evidence the judge examined in the accused's absence. The accused can be heard at a hearing. If the Federal Court judge deems the certificate reasonable, it automatically becomes a removal order, and the accused cannot appeal this decision. However, in January 2002, in the Suresh case, the Supreme Court held that, barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice.

On February 23, 2007, in the decision in Charkaoui v. Canada (Citizenship and Immigration), the Supreme Court unanimously held that the security certificate procedure violated the Canadian Charter of Rights and Freedoms. Specifically, certificates violate section 7 of the charter, which reads as follows:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice.

Because people named in certificates are deprived of their liberty yet are not entitled to a full defence, the security certificate process is unconstitutional. On the unlimited nature of the measures, the Supreme Court added:

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

Security certificates have been part of Canadian legislation since 1978 and have been used on a number of occasions. A total of 27 certificates have been issued to date, five of them since the attacks of September 11, 2001, if memory serves. The certificates issued in recent years in connection with the threats of terrorist attacks have generated interest among many legal experts in the mechanism for assessing and examining the risk an individual poses to society.

The review of the judicial process that is initiated after a security certificate has been signed gave rise to some points of contention, which led the government to revisit several elements of the certificates. Unlimited detention, when there is the risk of torture upon deportation, was sharply criticized by all parties. The Kingston Immigration Holding Centre, where individuals were being held, was referred to as Guantanamo North. The ministers responsible for authorizing the certificates have often stated, to defend their position, that the individuals were being held in a “three-walled prison”, insinuating that they were free to leave the country at any time should they wish to do so.

The Standing Committee on Citizenship and Immigration inspected the detention conditions of individuals held at the Kingston Immigration Holding Centre. My colleague for Burnaby—Douglas also attended these meetings. We presented our recommendations and observations to the government. The majority of individuals detained have since been released under very strict conditions.

There is another problem with the current conditions. These make life just as difficult for the friends and family of these individuals because their lives are now governed by conditions that require them to obtain a multitude of authorizations from the court.

Each one of these individuals has been forced to wear an electronic bracelet so they may be tracked at all times. Recently, Mr. Charkaoui was prevented from travelling to Quebec where young members of Amnesty International were waiting for him. Mr. Harkat must ask the court's permission just to have relatives visit and dine with him.

The court ruling states that he must be accompanied at all times by a person duly identified by the court which, in my opinion, interferes with the freedom of other individuals who can no longer live a normal life because they must fulfill the conditions at all times.

Many people have asked us why we do not sentence them if we have proof that they present a threat to security and the government has enough evidence to incriminate them. They should be brought before the courts and be given a fair trial.

Bill C-3 incorporates some Bloc Québécois proposals in part or in their entirety. Among other things, we asked that there be a special advocate and the right to appeal. As far as detention is concerned, we asked for a review of indefinite detention, that a mechanism be implemented to review its relevance. We also asked that this detention be reviewed so that at a given point, a person can be released. This will prevent keeping the person detained without evidence and allow that person to be properly charged in our courts.

Nonetheless, there is nothing in the bill on other issues such as warrants to arrest a person, a foreign national, on the burden of proof required and on evidentiary evidence that may or may not have been obtained through torture.

The government never gave us an answer on the reasonable duration of detention. How long will these detention conditions be imposed?

Where will fear of the threat of sleeper terrorist cells that the government is talking about take us? When people conspire to commit criminal acts, we usually charge them and bring them before our courts.

I would like to remind hon. members that some of the people subject to security certificates have been living in these conditions for more than eight years.

We are not the only ones who are uneasy about the current process. Judges are as well.

Justice Hugessen was cited a great deal. I will read an excerpt from one of his statements.

I can tell you because we [the judges of the Federal Court] talked about it, we hate it. We do not like this process of having to sit alone hearing only one party and looking at the materials produced by only one party and having to try to figure out for ourselves what is wrong with the case that is being presented before us and having to try for ourselves to see how the witnesses that appear before us ought to be cross-examined. If there is one thing that I learned in my practice at the Bar... it is that good cross-examination requires really careful preparation and a good knowledge of your case. And by definition judges do not have that... We do not have any knowledge except what is given to us and when it is given to us by only one party we are not well-suited to test the materials that are put before us.

The government has tabled measures that partially respond to this uneasiness of judges. My colleague from Marc-Aurèle-Fortin explained this aspect very well.

The bill still gives judges far too much discretion and does not respond to Mr. Hugessen's concerns.

A number of legal experts felt that the government should have taken the opportunity to conduct an in-depth review of the security certificate procedure, taking into account the experience of special advocates in other countries such as Australia, New Zealand and England.

Furthermore, a study on security certificates commissioned by the Canadian Center of Intelligence and Security Studies, with financial support from the Courts Administration Service, explained the weaknesses of the systems used in Canada and elsewhere in the world.

The Standing Committee on Citizenship and Immigration heard from Mr. Ian MacDonald, who, in 1998, was appointed special advocate to the Immigration Appeals Commission by the attorney general of the United Kingdom.

He was also assigned to deal with national security cases before and after the terrorist attacks of September 11, 2001. He publicly resigned in 2004 in protest against the indefinite detention powers without trial imposed by the British Anti-Terrorism Crime and Security Act 2001, and has since acted in control order appeals. He represents immigration clients at the European Court of Justice.

Mr. MacDonald explained why he resigned and the downsides of using special advocates. I think that the Standing Committee on Public Safety and National Security could benefit from Mr. MacDonald's comments and expertise. Furthermore, the University of Ottawa has carried out a number of studies on security certificates and the use of special advocates in the process.

With regard to the bill that is before us, I have the impression that the government has tried to do the minimum necessary to comply with the court's ruling. We have examined the bill and will make some amendments to it to address certain concerns about the security certificate procedure. However, for the time being, I believe that the government has taken a risk in doing the bare minimum. The process could have been reviewed in depth, and the government had a golden opportunity to do so.

If the House decides that this bill should be studied in committee, the Standing Committee on Public Safety and National Security will be able to make these amendments, and the Bloc Québécois will also put forward some amendments. For example, the Bloc Québécois will propose an amendment that allows counsel defending the interests of an individual facing deportation to see his client again in order to obtain additional information, once the evidence has been disclosed. Experience with the CSIS complaints process has shown that it is possible to work this way.

We would like to see the right to appeal the Federal Court decision and an end to indefinite incarceration and arrests without warrant of foreign nationals. We would also like to change the burden of proof so that certificates are upheld only if the court is convinced beyond a reasonable doubt that the individual represents a threat. We also want the bill to prevent the deportation of an individual to a country where he could face torture.

We have long denounced the security certificate mechanism. The government's position, the procedure it is proposing, has been widely criticized. Consequently, we would like a number of aspects of this bill to be corrected, and we will have the opportunity to do so in committee.

Immigration and Refugee Protection ActGovernment Orders

November 20th, 2007 / 10:45 a.m.
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NDP

Bill Siksay NDP Burnaby—Douglas, BC

Mr. Speaker, I want to put a question to the hon. member about the special advocate process, because unfortunately, I tend to believe that the provisions for a special advocate that have been introduced in Bill C-3 amount to tinkering with a very fundamentally flawed bill.

Certainly the provisions that we do have in the legislation seem to be modelled on the system in Britain. In the United Kingdom a number of special advocates have withdrawn from that process because they believe that it was too significant a compromise to the principles of basic fairness in the criminal justice system there. In fact, just recently the joint human rights committee of the British parliament said that the special advocate process was Kafkaesque and amounted to a star chamber. Those are very serious criticisms of that system.

A former special advocate, Ian Macdonald, said that what he was doing as a special advocate was adding a fig leaf of respectability to a very odious process and he resigned because of that.

Given those very significant criticisms of the special advocate process that the government seems to have adopted in this legislation, why would anyone want to support a bad bill, a fundamentally flawed process that compromises basic human rights and compromises our justice system in Canada?

Immigration and Refugee Protection ActGovernment Orders

November 20th, 2007 / 10:40 a.m.
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Liberal

Yasmin Ratansi Liberal Don Valley East, ON

Mr. Speaker, I am pleased to speak to Bill C-3, An Act to amend the Immigration and Refugee Protection Act, a bill, which, as my esteemed colleague has said, deals with issues around the security certificate.

As has been mentioned, security certificates do pose a challenge in terms of human rights. The Supreme Court of Canada ruled unanimously on February 23, 2007, that the process of determining the reasonableness of security certificates violated section 7 of the Charter of Rights and Freedoms.

The Supreme Court was very clear. The government does require a mechanism to remove individuals from Canada who pose a threat to national security. However, the system must be reformed and the court had particular concerns with respect to the secrecy of the judicial review system, which prevents individuals from knowing the case against them and, hence, impairs their ability to effectively challenge the government's case.

The Supreme Court agreed that the protection of Canada's national security and related intelligence sources does constitute a pressing and substantial objective, but it is also found that the non-disclosure of evidence at certificate hearings is a significant infringement on the rights of the accused.

In other words, the government must choose a less intrusive alternative, notably the use of special counsel to act on behalf of the named persons, while protecting Canada's national security. The Supreme Court gave Parliament one year to allow Parliament the opportunity to design a legislative remedy that protects Canadians and respects basic charter rights.

Bill C-3 would amend the Immigration and Refugee Protection Act to create a special role, the role of a special advocate. The purpose of the special advocate is to protect a person's interest in proceeding where evidence is heard in absence of the public and of the person or their counsel. This should provide better representation to the person who is detained.

We would like to see the bill be sent to committee as we want to ensure that the role of the special advocate has powers, that it is not just a puppet. Hence, the bill, with its various changes, needs to be sent through for a thorough review.

The bill proposes some changes that are positive. For example, when people are detained under a security certificate, the bill proposes that the people detained must have their detention reviewed by a judge of the Federal Court within 48 hours of the detention beginning. Any person still detained six months after the conclusion of the first review may apply for another review of the reasons for his or her continued detention.

Currently, we have five Muslim men who are subjected to security certificates in Canada. Only one man, Hassan Almrei, , remains at the Kingston Immigration Holding Centre, which has been nicknamed by critics as Guantanamo north.

Mohamed Harkat, Mohammad Mahjoub, and Mahmoud Jaballah have all been released from prison but are under strict house arrest provision, as is Adil Charkaoui who successfully challenged the previous laws as unconstitutional.

The immigration security certificate procedure still allows suspected terrorists, as well as refugees and landed immigrants accused of human rights violation or serious criminality, to be detained and deported from Canada. However, many deportations have been delayed over claims that their lives will be endangered should they return to their country of origin.

Critics of the security certificate process have slammed the current bill saying that it changes little and will likely be back before the Supreme Court before long. Matthew Behrens, the coordinator of the campaign to stop secret trials in Canada, says that the legislation would continue to leave the accused in the dark. He said that it would also allow evidence to be heard that would be considered inadmissible in a court case against a Canadian citizen.

The bill has also faced criticism from the Canadian Council for Refugees, the International Civil Liberties Monitoring Group and the Canadian Arab Federation.

The bill which is before us is similar to current laws in Britain where special advocates attend closed door hearings. The British system has drawn complaints for the special advocates' lack of necessary cooperation and information from intelligence agencies to be effective.

These are some of the concerns and therefore, it is important that the bill be sent to committee for further review before we make any decisions.

The Supreme Court laid out several options it would consider appropriate. Both the House committee and the Senate committee, in reviewing the previous anti-terrorism act, spent considerable time on this very issue and provided very clear recommendations on how to address the void left by the court's decision.

We welcome the decision of the Supreme Court on security certificates and praise the wisdom of the court in providing Parliament with a year to address the issue. We need to ensure that this bill, when it is presented before Parliament, has the right tools, meets the Supreme Court challenges, and the committee will do its due diligence in ensuring that the security certificates do not violate the human rights of Canadian citizens and are mindful of issues.

We live in a world where global terrorism can come to our doors in no time. It is important to protect the security of Canadians; however, we need to ensure that we are in line with the Geneva convention on human rights.

Immigration and Refugee Protection ActGovernment Orders

November 20th, 2007 / 10:25 a.m.
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Liberal

Mario Silva Liberal Davenport, ON

Mr. Speaker, before I begin my remarks I first would like to mention that I will be splitting my time with my hon. colleague, the member for Don Valley East.

I am pleased to join my colleagues in the House in discussing a very important piece of legislation that has been brought before us for our consideration.

Most people, on hearing the name of Bill C-3, An Act to amend the Immigration and Refugee Protection Act, may think it deals with immigration policy, but in many respects this is a security bill. This proposed law of course deals with security certificates and, in particular, the issues that arise out of the February 23, 2007 Supreme Court of Canada decision.

The reality is, as has been stated a number of times by various members, that if new legislation is not passed by this House to address concerns raised in the February 2007 Supreme Court decision, then the security certificate process will effectively terminate, so this is indeed an important debate.

The security certificate process itself has been in existence for approximately 20 years. In fact, a variation can be found as far back as the 1960s, when it was utilized to remove from Canada an organized crime figure.

Since 1991 we have seen in this country the use of security certificates 28 times. Since 2001, a pivotal mark, of course, in the history of anti-terror initiatives, the Canadian government has issued six security certificates. The system most notably has been amended twice, once in 1991 and again in 2001.

The whole security certificate system does represent a contentious process that has over the years created as many critics, it seems, as supporters. Among those that have opposed the system are the Canadian Bar Association, Amnesty International and Human Rights Watch.

Internationally, Canada also has come under criticism for its security certificate system from the United Nations Committee Against Torture, the United Nations Working Group on Arbitrary Detention and the United Nations Human Rights Committee.

Notable Canadians such as former solicitor general Warren Allmand and former foreign affairs minister Flora MacDonald have also expressed opposition to the security certificate system.

At the same time, there has been support for the system both from Canadians at large and from successive Canadian governments that identified the security certificate system as an important and indispensable tool to deal with individuals who represent terror, crime or human rights threats to Canada.

It should be noted that an earlier court challenge to the security certificate system resulted in the December 10, 2004 decision by the Federal Court of Appeal that found the process constitutional. This, of course, remained the prevailing judicial ruling until June 2006, when arguments were made with respect to two individuals being held on security certificates.

The result of these June 2006 arguments before the Supreme Court of Canada was the judicial decision of February 23, 2007, which immediately changed some provisions of the security certificate system and required the government to amend the law within one year, that is, the court issued a suspended ruling with effect by February 2008.

Among the court's rulings with immediate effect was the decision to strike and effectively replace the provision that distinguished between refugee claimants or non-residents and those with permanent resident status.

The suspended ruling dealt with, of course, the fairness of the exclusionary provisions with regard to evidence being used to sustain the security certificate. This part of the Supreme Court of Canada ruling goes to the heart of the issues that the government has indicated it is trying to address with Bill C-3, which we are debating today.

We all know that the court essentially ruled that the absolute inaccessible nature of the evidence used to hold a person on a security certificate was inconsistent with sections 7, 9 and 10 of the Charter of Rights and Freedoms. The ruling is of significant consequence to Canadians.

The Charter of Rights and Freedoms represents for Canadians not only a document, but rather a depository of our national values and our traditions of freedom. When our highest court finds provisions of a law are incompatible with the charter, we are called to take note.

Essentially, Bill C-3 is designed to address the issue of secrecy with respect to evidence. The Supreme Court, in simple terms, found the total secrecy and inaccessibility of evidence used to hold a person under a security certificate to be egregious and in need of redress.

The bill, by creating the so-called advocate, has, as its purpose, the redress of the Supreme Court's concerns.

Under Bill C-3, the justice minister would create a list of advocates. These would be lawyers, as we understand it, with at least five years of relevant experience, have no conflict of interest and in possession of the appropriate security clearance. These advocates would have an opportunity to meet with their clients prior to reviewing the evidence using only the court summary that is not considered sensitive. Then they will have access to the evidence. Once this has taken place, they cannot reveal to their clients the contents of the evidence. They can make a judicial appeal based on their viewing of the evidence with respect to the contents but they cannot reveal its contents to their clients. This is, of course, a major departure from the traditional view of lawyer-client privilege.

The reality is that there remains a secrecy aspect of this process that still seems to challenge most conventional views of judicial fairness.

However, we need to remember that these situations are unique and rare. They apply only to non-Canadian citizens and there is judicial recourse, albeit limited in comparison to standard legal practices with which we are generally accustomed as citizens.

As a country, we are not alone in these challenges. The United Kingdom has undergone similar debates and challenges. In 2004, the House of Lords, or law lords, ruled against the system in place there that allowed for unlimited detention. The result, after much debate and angst within the political arena, was a significantly modified and much more limited system of non-traditional detention for potential terror and human rights suspects.

The question for us today as parliamentarians is not unlike that which has faced legislators in the United Kingdom and other traditional western democracies. What is the proper balance between fundamental human rights protections and the need to protect the state and its citizens from persons of risk and, in particular, non-citizens who seek to take up residence in Canada?

This is a fundamental question, a question that we will need to consider carefully over the next short period of time leading up to our vote on this matter.

We must tread carefully when we venture into the realm where fundamental legal rights need to be compromised or withheld. We must exercise caution when we make decisions that afford to our security services and the court's secrecy that we would normally consider inconsistent with the principles of our democracy and our judicial system.

However, over the coming days we as legislators will determine and finally vote upon the bill that is before us today.

Does the need for security of our state and of Canadians require the measures we are bringing forward into law? This is a question we will reflect upon as we prepare to vote on Bill C-3.

The world has changed. There are threats that would once have seemed inconceivable to us that now present themselves as real. Is Bill C-3 justified? Does the need for this kind of law outweigh the concerns?

I know all members of the House will ask, as I will, these important questions as they cast their vote in the very near future. Canadians expect no less than this from us and we must serve them well in this regard.

The House resumed from November 19 consideration of the motion that Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, be read the second time and referred to a committee.

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 6:25 p.m.
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NDP

Joe Comartin NDP Windsor—Tecumseh, ON

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

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

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

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 6:25 p.m.
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NDP

Pat Martin NDP Winnipeg Centre, MB

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

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

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

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 6:20 p.m.
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Liberal

Lui Temelkovski Liberal Oak Ridges—Markham, ON

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

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

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 6 p.m.
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NDP

Joe Comartin NDP Windsor—Tecumseh, ON

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Immigration and Refugee Protection ActGovernment Orders

November 19th, 2007 / 5:55 p.m.
See context

Liberal

Shawn Murphy Liberal Charlottetown, PE

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

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

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

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

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