Bill C-3 (Historical)

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

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

Immigration and Refugee Protection Act

[Gordon O'Connor, Conservative, Carleton—Mississippi Mills, ON]

moved 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.

[Dave MacKenzie, Conservative, Parliamentary Secretary to the Minister of Public Safety]

Mr. Speaker, I appreciate the opportunity to rise before the House and discuss Bill C-3, An Act to amend the Immigration and Refugee Protection Act.

The Immigration and Refugee Protection Act is important legislation as it sets out the rules by which people from across the globe may seek to come to Canada. As a country built by the imagination and dedication of many people, we truly understand the value of diversity within society. In fact, Canada is known internationally as a welcoming and compassionate country. Each year we admit more than 95 million people to our country, including 260,000 new immigrants.

While we encourage immigration, Canadians also insist on vigilance against people and organizations taking advantage of our generosity and openness. They pose a danger to our nation and, in some cases, to other nations around the world. They have committed serious crimes, or violated human rights or even taken part in terrorism. These people are not welcome in Canada.

Canadians do not want our doors to be open to people who endanger our national security and the safety of our communities. The government wants what Canadians want. That is why we are unwavering in our determination to safeguard national security and to protect the safety and security of the Canadian public.

One of the most fundamental responsibilities of a government is to ensure the security of its citizens, and this government has taken its commitment very seriously.

The Immigration and Refugee Protection Act provides the government with a process to remove non-Canadian citizens who are inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. When classified information is involved in support of the inadmissibility decision, the security certificate process may be used.

It has been in place for over 20 years, but it has only been used 28 times since 1991 in the most serious cases. Certificates have been issued against spies, terrorists and extremists. They can never be used against a Canadian citizen, and that is a very important part.

The reason Bill C-3 has been introduced is quite straightforward. Security certificates are used to protect Canadians. They are a vital national security tool. At the same time, when we take steps to protect Canadians and national security, we must also take steps to respect civil liberties and protect our core values. These values include freedom, democracy, human rights and the rule of law.

In February the Supreme Court of Canada confirmed the use of security certificates generally. However, it found aspects of the security certificate process that required legislative improvement. In addition, various parliamentary committees have recommended changes to the Immigration and Refugee Protection Act.

The government has moved swiftly and is taking action. Bill C-3 is an essential public safety tool that enables us to continue to prevent inadmissible persons from remaining in Canada while ensuring that there is better protection of the rights of individuals subject to security certificates.

Bill C-3 would set into law the Supreme Court of Canada's ruling on security certificates, and takes into consideration the recommendations of both Houses of Parliament.

We have acted to strengthen the law to address the findings of the court. Protecting both security and human rights can be a challenge. As the Supreme Court stated in its ruling, this is:

—a tension that lies at the heart of modern democratic governance. It is a tension that must be resolved in a way that respects the imperatives both of security and of accountable constitutional governance.

While the Supreme Court confirmed the use of security certificates generally and stated that one of the most fundamental responsibilities of a government was to ensure the security of its citizens, it found there was not sufficient opportunity to challenge the government's case.

The Supreme Court identified areas where the security certificate process must be changed to better protect the rights of individuals subject to a certificate. The court noted that detention under the security certificate process did not constitute cruel or unusual punishment under the Canadians Charter of Rights and Freedoms if accompanied by a process that provided for regular opportunities for appropriate detention reviews.

However, let me stress one important fact about the security certificate process. It is not about detention, but rather about removing non-Canadian citizens because they represent threats to public safety and national security.

Individuals named in a security certificate would be released from detention if they chose to leave Canada and return to their country of origin. Detention is meant to protect the safety and security of the Canadian public until they can be removed from Canada.

Further, the court said that the certificate process did not violate section 15 rights under the charter; that is to say, equality rights. These are important findings.

It is clear that we need the security certificate process. It is a valuable public safety tool and the court has given the government an opportunity to amend the legislation by suspending the effect of key portions of its decision for one year.

In addition, it must be emphasized that if we do not pass this bill by February 2008, an important public safety tool would be lost. The government would be unable to issue new certificates against non-Canadian individuals who pose a threat to the security of Canada.

In addition, individuals currently subject to a security certificate would succeed, on application, in having their certificates quashed. This means they would no longer be subject to detention or any conditions of release, which would pose serious public safety risks.

What changes did the Supreme Court of Canada say were needed?

It found that the in camera ex parte proceedings do not provide the person named in the certificate a sufficient opportunity to know the case against him or her and challenge that case. The court ruled that a process had to be put in place to better protect the interests of individuals subject to security certificates.

It also gave foreign nationals the same rights as permanent residents in the context of detention reviews. In that light, it stated that these reviews should occur 48 hours after arrest and at least once every six months thereafter for both foreign nationals and permanent residents. These changes took effect immediately upon the court ruling.

The special advocate function will help ensure fair court proceedings and provide a means to challenge classified evidence.

As I have already mentioned, the Supreme Court indicated that a mechanism was needed to better protect the interests of individuals subject to a security certificate.

Bill C-3 sets out that mechanism by introducing a special advocate in the Federal Court process to determine the reasonableness of the certificate.

The special advocate's core role would be to protect the interests of the subject by ensuring a person's interests are adequately represented during closed court proceedings. The special advocate would be able to challenge the minister's claim to the confidentiality of classified information, as well as its relevance, reliability, sufficiency and weight. The special advocate would also be able to make written and oral submissions to the court and question government officials involved in the case.

It is important to appreciate that this model would strengthen an important public safety tool by making it fairer to the person subject to the certificate process, while recognizing the need to prevent the disclosure of confidential public security information.

How would the process work?

The Minister of Justice will establish a list of persons with the qualifications set out in regulations, who may act as special advocates. Some of the qualifications which may be set out in regulations include membership in good standing in a law society of Canada, at least five years' relevant litigation experience, no conflict of interest and appropriate security clearance.

The special advocate will be able to communicate with the individual subject to a security certificate without any restrictions before he or she sees the classified information. At that time, the special advocate will have the benefit of an unclassified summary of the case to discuss with the subject. This should substantially assist the special advocate in preparing for the closed ex parte hearing.

The special advocate will then be privy to the classified information. Once that happens, the individual can no longer communicate with anyone about the proceeding while it is ongoing, except as specifically authorized by the judge. The special advocate may apply to the judge for permission to communicate with the subject of the certificate. If the judge grants the request, he or she may impose conditions, such as to communicate only by writing, to avoid the inadvertent disclosure of any confidential information.

Another important aspect of the special advocate regime is that there is no solicitor-client relationship with the subject of the certificate. That is because it would likely create a conflict of interest for the special advocate in light of the restrictions on communication imposed once the special advocate has seen the classified information.

The nature of the solicitor-client relationship, in particular the duty of candour owed to the client by his counsel, might be construed as to require the special advocate to reveal as much as possible about the classified information to the subject of the security certificate. At the same time, the special advocate would be required to protect the classified information from disclosure.

Let me be clear that without the solicitor-client relationship, the special advocate can still protect the interests of the subject by challenging the confidentiality of the evidence as well as the relevance, reliability, sufficiency and weight of that evidence.

Aside from security certificate cases, other decisions made under the Immigration and Refugee Protection Act may also involve the use of classified information. In the course of a judicial review of such a decision, a special advocate will be available if the judge, on a discretionary basis, concludes that considerations of fairness and natural justice require it.

Bill C-3 proposes other legislative changes to meet the requirements of a Supreme Court decision, address a number of parliamentary recommendations and deal with gaps in the act.

Other legislative changes proposed in the bill include: concurrent reasonableness hearings and risk assessments to streamline the proceedings and security certificate cases; permitting appeals of the decision on the reasonableness of the certificate upon certification, which is consistent with how all appeals under the IRPA are dealt with; confirming that foreign nationals have the same detention review rights as permanent residents, as the Supreme Court did express in its decision; and, transitional provisions to provide for the treatment of existing certificate cases under the new law in the most transparent and fairest manner possible.

I will now explain these proposed changes in a bit more detail. I will begin with concurrent processing. When a security certificate is issued, it is referred to the federal court to determine if the security certificate is reasonable. The individual subject to a certificate can also apply for protection from return to a country where the person would face a substantial risk of torture or cruel and unusual treatment or punishment or risk to life. This is called a pre-removal risk assessment, or PRRA. As it now stands, the PRRA process takes place and the review of the reasonableness of the certificate is suspended until its conclusion. This is because the law provides that the judge who decides the reasonableness of the certificate must also decide on the lawfulness of the PRRA decision. This has caused delay.

Bill C-3 proposes to do away with the suspension of the reasonableness hearing. It provides that the Crown or the court may review the reasonableness of the certificate concurrently with the review of the lawfulness of the PRRA. The court's review would take place outside the certificate process without the need for the same judge to review both decisions. This approach seeks to limit the potential for significant delays that might result while waiting for a decision on the PRRA before having the court assess the reasonableness of a certificate.

The next proposal in the bill is to allow for the appeal of the reasonable determination and on decisions on detention if the judge decides a serious legal issue has been raised for the consideration of the Court of Appeal. This requirement, called certification of a question, is consistent with the way other decisions under the IRPA may be appealed.

Currently, the decision on the reasonableness of the certificate cannot be appealed but, practically speaking, the courts have recognized certain exceptions to this rule. Accordingly, appeal upon certification of a question will provide a mechanism that enhances fairness.

The next change proposed by Bill C-3 is almost a formality given that the Supreme Court has already deemed this change effective and in force. In fact, the court ruled that foreign nationals and permanent residents should have the same rights to detention review. This ruling means that since February, both permanent residents and foreign nationals are granted a review of their detention within the first 48 hours after arrest and every six months after that. Prior to this decision, the IRPA stated that foreign nationals were entitled to a detention review 120 days after the certificate was found to be reasonable.

Finally, Bill C-3 proposes transitional provisions that would allow for cases commenced under the previous legislation to recommence under the new legislative regime. This is to ensure that appropriate and orderly change from the old legislation to the new will provide the benefits of the new legislation to the current individual, subject to a security certificate.

As members can see, a great deal of thought has gone into this bill. Not only have we responded to the Supreme Court of Canada's ruling, but we have also been mindful of the recommendations made by committees in both Houses of Parliament.

We are offering more protection for individuals, subject to a security certificate. We are providing for appeals that are not allowed under the current legislation. We are giving foreign nationals the same detention review process accorded to permanent residents, as the Supreme Court directed. We will review all current cases in conformity with the new regime once it comes into place.

We want to protect Canadians. It is our duty to both Canadians and the international community to stop dangerous people from committing heinous crimes or terrorism.

I urge all members of the House to support Bill C-3. If opposition parties are serious about protecting Canadians from an individual posing serious threats, now is the time to show it.

[The Acting Speaker, Conservative, Royal Galipeau]

It being 1:30 p.m. the House will now proceed to the consideration of private members' business as listed on today's order paper.

When Bill C-3 returns to the House there will be four minutes left for the hon. the parliamentary secretary, in addition to ten minutes of questions and comments.

The House resumed from October 26 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.

[The Acting Speaker, Conservative, Royal Galipeau]

When we last studied Bill C-3, there were four minutes left to the hon. the Parliamentary Secretary to the Minister of Public Safety. The parliamentary secretary has the floor.

[Dave MacKenzie, Conservative, Parliamentary Secretary to the Minister of Public Safety]

Mr. Speaker, thank you for the opportunity to conclude my remarks on Bill C-3. As I stated previously, Bill C-3 is a crucial piece of legislation that will enable this government to fulfill our obligation and responsibility to safeguard Canadians from people seeking to come to Canada and who would pose a grave threat to our nation. It also gives thoughtful deliberation to the Supreme Court's concerns and takes into consideration the recommendations made by both the House of Commons and the Senate committees reviewing the Anti-terrorism Act.

Some people come to Canada and pose a grave threat to our nation. A small minority yes, but a group that we must address. Some of them have committed serious crimes abroad and have affiliations to terrorist organizations. Their intentions in coming to Canada may not be innocent. They may be here to continue committing these crimes or to recruit others to their cause. Canada cannot become a safe haven for these people.

In the past 20 years, security certificates have been issued 28 times against non-Canadians accused of being terrorists, extremists and spies. Security certificates are a vital national security tool. The most recent security certificate was for espionage and the threat to Canadians was eliminated when that individual returned to his country of origin.

Let me again stress this very important aspect of the security certificate process. It is not about detention, but rather about removing non-Canadian citizens from Canada because they represent threats to public safety and national security. These individuals are inadmissible under our immigration law.

Bill C-3 is part of the government's overall national security and public safety efforts. It will continue to prevent inadmissible persons from remaining in Canada while ensuring that the rights of persons subject to a security certificate are appropriately protected as they must be.

We are privileged to live in a country where values of freedom, democracy, human rights and the rule of law are held in the highest regard. When we are made aware of a situation where these values have been compromised, our government takes action. This is why we were pleased to receive the Supreme Court of Canada's ruling on this matter and to implement this bill to address the ruling of the court.

The Supreme Court has given the government an opportunity to amend the legislation, but has set February 23, 2008 as the deadline. Let me be clear on this point. If we do not pass this bill by February 2008, all current security certificates would be quashed. The certificate process could no longer be used to detain these individuals or impose conditions of release. Nor could it form the basis for their inadmissibility to Canada. This would pose a serious threat to the safety of the Canadian public and the security of Canada.

This means that all existing security certificates would begin afresh and would be referred back to the ministers for their consideration. If a new certificate is signed, the cases will be referred again to the court for a determination on the reasonableness of this certificate.

The passage of Bill C-3 is essential to the continued operation and use of the security certificate process contained within the Immigration and Refugee Protection Act. We want to continue to encourage people from around the world to move to Canada. We want to attract those who will contribute to the diverse social fabric of our land and we want to shelter those who have seen the worst that the world has to offer, and give them a renewed sense of hope and beginning. But our highest priority is the protection of Canadians. It is our duty to both Canadians and the international community to stop dangerous people from committing crimes or terrorism.

In doing so we must continue to demonstrate clearly Canadian values of justice, fairness and the respect of human rights. With this bill we can better achieve these goals. I urge all members of this House to support Bill C-3.

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

Mr. Speaker, in the Charkaoui case, the Supreme Court suggested a number of amendments to the procedure for issuing the deportation order made necessary by security certificates. This becomes a committal order when the person cannot be deported to another country. This is currently the case with those who have been imprisoned for a long time under security certificates in Canada.

The Supreme Court wanted to leave something up to the legislators, to discourage them from always turning to the Supreme Court for a ruling on whether or not laws are constitutional. On a number of occasions in recent years, the court made it clear that it was a little tired of Parliament never taking responsibility and leaving the difficult decisions up to the court. This time it has left us with a difficult decision. And it said that we were required to review this decision every six months.

How long will we review these decisions, in the event that we cannot deport an individual to another country without endangering his life or likely subjecting him to torture? Why have we not answered the question put to us by the court?

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, Bill C-3 deals with the two issues that the Supreme Court addressed that needed to be changed in the Supreme Court's decision. Those issues are the review of the security certificates and the role of the special advocate.

That is what this bill is about. It is not about any broader areas. The Supreme Court has ruled that the process is a reasonable one that fits within our charter. Bill C-3 deals specifically with the two issues that the Supreme Court addressed and referred back to Parliament.

[Dawn Black, NDP, New Westminster—Coquitlam, BC]

Mr. Speaker, we have several concerns with Bill C-3. We believe that anyone who plots a terrorist attack in Canada should actually be tried, convicted and punished here within Canada, not simply deported somewhere else.

Parts of the bill are controversial. The whole process of security certificates includes secret hearings, detention without charge or conviction, detention without knowing what the charges are and not being told what the evidence is against a person. There is indefinite detention and lack of an appeal process.

When the previous bill was deemed unconstitutional, the government brought in a change to allow for a special advocate. That process has been tried in a couple of other countries and it has not been successful. In fact, a very prominent special advocate in the UK, with seven years of experience in this matter, has quit in protest over the inadequacy of the process.

I want to ask the government member how he feels the special advocate will address and bring an element of fairness to the system that has been found in the UK not to have worked?

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, the hon. member has made many allegations, some of which have really nothing to do with what is before the House today.

I would hope for clarification that the hon. member understands that this is not about people who are charged in Canada with crimes committed in Canada. This is really about people who are not eligible to be in Canada and for crimes that may or may not have been committed in other places. They may belong to terrorist organizations. It is not about committing crime in Canada.

The areas that we have addressed in Bill C-3 are the ones that the Supreme Court has identified that it felt needed to be changed by Parliament. Those amendments have been brought forth. I think the amendments are appropriate given the circumstances of what the bill is and the intent of the legislation.

I think when the member talks about a special advocate that a number of countries have a special advocate process. They are all somewhat different, but the process we have brought forward here we think is appropriate for Canada's needs and for Canadians, with the idea that it is important that we keep Canada safe.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Mr. Speaker, the hon. member has obviously explained the legislation. I have one question. The hon. member may have looked at all the recommendations of different committees, both the Senate and the House, as well as the UK committee. I believe the UK committee was a joint committee on justice. It expressed certain concerns about the special advocate system that is now being imported into our system.

Can the member tell us what particular recommendations of the various Senate and House committees from our jurisdiction the government has been able to embrace in the legislation and which ones it has not and why?

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, the member's question is an excellent one. What I can tell him is that the government side has looked at all the recommendations dealing with the special advocate from the public safety committee and I believe there was perhaps one recommendation from the immigration committee.

We have attempted to bring what we consider to be the best of all those forward to meet the needs of Canada and Canadians. I know I said previously there are special advocates in many other countries around the world. All of them are somewhat different and unique to what they consider their needs. I think the most current and appropriate needs for Canada are being met with this process.

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

Mr. Speaker, I would like to know—as would you too probably—what support the government has in mind for those special advocates. There is nothing in this bill concerning the secretarial or other support services that they may need if they are to examine the reports, which are voluminous, as you know, and can, in some cases, run to a thousand pages.

How is it that the government's bill contains nothing regarding the support that should be provided to these advocates, if the measure comes into effect?

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, it is essential that these do come into place, otherwise we have lost the whole provision of detention for people who do represent some sort of serious threat to Canada, whether it be terrorism or industrial espionage, as was the last case. I think it would be incumbent upon members of this House to quickly pass this legislation, so that it is not lost at a date set by the Supreme Court early in 2008.

If the member looks at the Supreme Court ruling and what is in this legislation, he will find that in fact all those issues would be taken care of, not that it will be defined to the nth degree in any legislation, as it never is, but this is appropriate to Canada and Canada's needs. The important part is the safety and security of Canadians whether it be, as I said, either terrorism or industrial espionage. So, it is important we pass this legislation quickly.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Mr. Speaker, obviously this is a bill that has been crafted by the government in response to the Charkaoui decision of the Supreme Court, where the Supreme Court ruled that the non-disclosure of evidence impaired the rights of the individual beyond the level of acceptability. Therefore, that provision was suspended by the Supreme Court until February 2008. The Supreme Court also addressed the differential treatment of the non-residents of Canada and permanent residents of Canada, and dealt with the issue of indefinite detention. This was a very important decision.

These provisions are very important. There is no question that for the safety and security of Canadians, sometimes a society like ours needs to deal with people who may come from other places and may have a history of which we may or may not be aware. At some point the state becomes aware, and we want to protect our society from violence and the like. Therefore, these provisions are important. The instructions that the Supreme Court also provided were very important. The bill in a very basic fashion deals with the concern expressed by the Supreme Court. I want to go over three or four elements of the Supreme Court's decision.

The Supreme Court looked at the various systems in place in Canada and in other parts of the world and came to the conclusion that we needed to change these provisions and that we could take any one of the systems or devise a system to provide some significant disclosure to the individual before the court. The government in this bill has imported, essentially holus-bolus, the concept of special advocate from the United Kingdom, which, I must add, has been the subject of some criticism by a joint committee of the Lords and Commons in the U.K. itself.

It is worth looking at in that light, because it might tell us that what the government has presented basically meets the concerns expressed by the Supreme Court, but does not deal with some of the other concerns. Let me say at the outset that we will support this bill at this stage so that it goes to committee, but while in the committee, I think that some amendments might improve this bill to make it better than it is.

The Supreme Court, in coming to its conclusion in the Charkaoui case, looked at the Security Intelligence Review Committee, SIRC as it is called in Canada, our own committee. The court looked at it favourably and said that the system that SIRC had devised in dealing with disclosure, and SIRC had full disclosure, and in dealing with the rights of the individual before it, served the natural justice interests of the individual before SIRC as well as maintained the confidentiality of the information.

SIRC has been in operation for many years. The experience in dealing with these very serious issues has been that there has never been a case of inadvertent disclosure of sensitive information either to the individual or to the outside world. This was one of the better approaches the government could have taken. Our homegrown system of SIRC could have been imported into a security certificate process, but the government did not go for that. Instead it went for the United Kingdom's special advocate system.

The Supreme Court then looked at the Canada Evidence Act procedure. Under the act a participant in a proceeding who is required to disclose or expects to disclose potentially sensitive information must notify the Attorney General of Canada about the potential disclosure. The Attorney General then may apply to the Federal Court for an order prohibiting that disclosure in total or in part. That process has something to commend itself.

The court looked at the Arar inquiry where there had been amicus curiae appointed on confidentiality applications and there was a scheme in place where the information was vetted and dealt with appropriately.

The court looked at the United Kingdom immigration commission system and the special advocate system. In this bill the government has imported some elements of that system. Unfortunately that system itself has come under a great deal of scrutiny and criticism by the various committees and experts in the U.K. as well as some special advocates in the U.K. In particular the House of Commons and House of Lords Joint Committee on Human Rights in its recent report in July of this year severely criticized the system.

Be that as it may, we have our own reports from the House and the Senate on some of these issues. While undertaking a mandated review of the Anti-Terrorism Act the committees pronounced on the security certificates as well. Both the House committee and the Senate committee found that there is a need for some form of adversarial challenge to governmental claims that secrecy is necessary and to the secret intelligence that is presented to the judge reviewing the security certificate. Both committees concluded that the affected party should be entitled to select a special advocate from a roster of security cleared counsel. One of the reports, I believe, proposed a panel of special counsel funded by, but independent of, the government.

Several other recommendations were made by the committees. They include, for instance, a proposal for amendments to ensure that the information that may be the product of torture not be admissible in the proceedings, that there be faster time lines for review of the detention of a foreign national being held under a security certificate, and that there be a right of appeal to the Federal Court of Appeal following the decision of reasonableness by the Federal Court judge.

The three items that I have mentioned have been touched upon and dealt with somewhat, but I might say not satisfactorily, in the bill that is before us today. Let me go through some of my concerns with respect to these issues.

On the issue of full disclosure, the bill provides for some disclosure, not for full disclosure, to the special advocate. There is no mechanism for the special advocate to know whether or not complete information or the complete file has been disclosed to the judge and therefore disclosed to the special advocate. There is no mechanism, and therefore there is no substance, on which the special advocate could go back to the judge to ask for more information because he or she would not know whether or not there is more information.

Whatever information is provided to the judge is then shared, based on the discretion of the judge, with the special advocate. However, the special advocate will not be able to go behind that information, nor would the judge, unless the judge knows that further information exists.

Therefore, while SIRC, the model that we have developed here in Canada and which is still being used, had full disclosure of the entire file, there is no guarantee in this bill that the judge who is sitting on the matter is going to ever have the full and complete file. The judge may, but there is no guarantee in the bill. That is a deficiency in this legislation.

There is the issue of continued access by the special advocate to the interested person. The bill provides that the special advocate will get a summary of the evidence, a digest of the evidence, at which point he or she can speak to the affected individual and then have full disclosure from the judge with respect to all of the material that might be available. Thereafter, the special advocate will not be allowed to communicate with the affected individual without the permission of the judge.

Our experience in SIRC tells us that with special security cleared counsel there has never been an inadvertent disclosure made by anybody to anyone. Our experience also tells us that if there is a process in place to properly security clear the special advocates, they ought to be given some leeway without necessarily having to apply to the judge every time they want to talk to the affected individual.

There is a provision in place for the special advocate to seek permission to further communicate with the individual, but by the very nature of the fact that one has to apply to the judge, it is a rather constrained and very limiting situation. That should be looked at, if at all possible. If there is a way to remedy and rectify that in the bill once it goes to committee, all parties should look at it. Ultimately the aim of all parliamentarians ought to be that we as a democratic and free country are able to provide the best designed system to deal with even the most difficult cases, such as the ones that come before these kinds of tribunals.

There is also the very real issue of the selection and support of special advocates. The bill is silent about how these special advocates are to be selected. There ought to be enshrined in the bill a system which guarantees a selection process for the special advocate or panel of special advocates which is independent and arm's length from the government. There are no such provisions in the bill.

There should also be enshrined in the bill a fund provided by, but independent of, the government that would fund the special advocates. This is so that the special advocates would not feel that they are acting at the behest of the government or ought to be somewhat concerned about what the government thinks because they are selected by the participation of the government in the first place, or they may have to be paid by the government from time to time. We need to put the selection process in the legislation at arm's length and independent of the government, perhaps with the participation of the Canadian bar and other NGOs, as well as a representative of the judiciary. That is important.

It is also important that we provide for an independent fund to be drawn on by the special advocates from time to time. It should be set up by the government but should be independent of the government.

Next, I believe it is important that the affected individual or individuals ought to be able to choose the special advocate of their liking out of the roster of security cleared individuals. I do not believe the judge ought to have a role in appointing the special advocate. There is some lack of clarity in the legislation.

I do not believe that anybody else ought to have the right to impose a particular special advocate on the affected individual who is before the judge. If the individual chooses not to exercise that right of choice in this situation, as happens before the courts normally, the court would appoint a special advocate from the roster. However, it should be clearly spelled out in the legislation that the affected individual has the right of choice of the special advocate from the pre-selected roster of special advocates.

This is a very important principle of our justice system where individuals are given a roster, although they have a limited choice. At least within that limited circumstance, they ought have the freedom to pick X or choose Y rather than having to be stuck with A or B because the judge or someone else might think so. That is very important.

I believe the relationship of the special advocate with the interested person is also very important. We recognize that we cannot have a special advocate in the relationship of solicitor-client with the affected individual, for obvious reasons. However, at the same time we ought to also protect the special advocate, in that he or she ought not owe a duty of confidentiality or a duty of disclosure to the government.

We recognize that a special advocate is not in a position of solicitor-client relationship. We do not want the special advocate to be in a position to have to disclose information that he or she could not disclose to the affected individual. However, we should also have a guarantee that the special advocate is not in a position to have to answer to the government and disclose information that he or she may have gathered from the affected individual in the communications he or she may have with that individual. This guarantee should work both ways. It is important to protect that right to silence, in a sense, of the affected individual, either directly or indirectly.

Finally, I come to the issue of torture evidence. We have in the bill a reference to the reliable or proper evidence, if I remember the words correctly and I will stand corrected. This is the kind of evidence the judge ought to accept for these kinds of hearings. There is no express bar against the use of evidence that is the product of torture or that may be the product of torture. I believe we can do better than what is in the bill.

One thing we can do is have an express bar against using the product of torture, evidence that may have been obtained by the use of torture anywhere in the world. We want to ensure we have a system of justice that is the envy of everyone in the world and we cannot claim that if we do not expressly bar the product of torture. We may indirectly do so by using the words such as “reliable” and “proper” evidence, but clearly evidence received pursuant to torture is improper, in my humble view, and ought never be used in these kinds of hearings where there is no guarantee of full disclosure even to the affected individual.

I recognize these are individuals whom we do not want on our soil. We may be threatened by them. We may be worried about our safety and that is why we are doing what we are to them. However, we have an obligation, based on the principles of justice in our country, to ensure that we do not fall into the kinds of traps other nations fall into where evidence received pursuant to—

[The Acting Speaker, Conservative, Royal Galipeau]

Questions and comments, the hon. member for Marc-Aurèle-Fortin.

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

Mr. Speaker, I have a question for the member who just shared his opinion with us. I noticed he made many of the same recommendations that we too intended to make. This is not surprising, either, since these are the same recommendations that have been made by many experts in the field.

I understand, however, that one of the government's concerns is the timeframe within which it must have this bill passed before it lapses. I would like to ask the member who just spoke if he really believes that, although the legislation is not perfect—it would be quite a surprise if it were—there is nevertheless a way, with the cooperation of opposition members, to present much fairer amended legislation within the timeframe required by the Supreme Court?

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Mr. Speaker, these kinds of issues are non-partisan issues. We are all working together to enhance the security and safety of Canadians.

In that spirit, if there are legitimate amendments, they can be made with speed. There are some that can be made without taking away from the strengths of the bill and those amendments would make the bill stronger and better for all concerned. However, we have an obligation to ensure that we do this by February 2008 if at all possible.

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

Mr. Speaker, I have noticed in discussions about security certificates that we unfortunately use a misnomer. The majority of individuals who discuss this matter, which is very complex and is covered by various texts that are very poorly written, quickly initiate debates that do not reflect the true nature of a security certificate.

I have to admit that I have not found a better term for them; however, we should understand that security certificates are part of a process whereby two ministers, who deem that a foreign national—but never a Canadian citizen—represents a danger to Canada, ask the Federal Court to issue a removal order. The objective of the process initiated by what are known as security certificates is to obtain a quasi-judicial court authorization to have the individual deported. We must remember that this is a deportation procedure and not a trial.

Canadians' right to live in and to return to Canada is entrenched in the Charter and applies to all Canadian citizens. This process applies only to foreign nationals. Every nation recognizes that it is the right of sovereign countries to admit into their country, at its discretion, the individuals they want and to extradite those they do not want for whatever reason. In general, particularly in a country such as ours that was and continues to be built on immigration, those who are considered dangerous are extradited.

This information is generally obtained from security services that, we must be clear about this, are not police forces. The purpose of security services is to assess threats and to inform the government of these threats so that it may take action. By their very nature, security services begin with suspicions, hypotheses and investigations. They then elaborate scenarios of the most dangerous situations to advise the government of the decisions to be taken. They are not police officers.

When the police investigate a crime, they likely begin with hypotheses and lists of suspects. Sometimes the investigation reveals that some of the suspects did not commit the crime being investigated. Throughout the investigation, they carefully seek new evidence, collect and preserve that evidence, and proceed only once they are sure that the evidence will prove beyond a shadow of a doubt that the person believed to be guilty of a crime, is.

What people have to understand is that in this case, we are not talking about a trial. It is important to note that, as is the case in many countries that are not at all like us, authorities can decide not to ask a judge to review a decision concerning a person deemed dangerous on the basis of information provided to the Minister of Public Safety by security agencies.

In countries that are more like us, including the Commonwealth and western European countries in general, these cases go before a judge. Given that the goal is not to punish but to deport the accused, the burden of proof is not the same.

Many people have suggested that if there is proof that these people are dangerous, they should be convicted.

In some cases, if there is evidence that these people are dangerous and that they have committed a crime, the best solution is to accuse them of those crimes and try them in court. However, we are talking about individuals the government wants to deport, not punish.

The government frequently defends its position by saying that people who are incarcerated here are in a three-walled prison. However, for some people, the fourth wall of their prison is actually a cliff. If removed from that three-walled prison, they may be killed or deported to a country where they will be tortured. That applies to those who have been incarcerated here under security certificates. The others are deported.

There was a case this summer. The Parliamentary Secretary to the Minister of Public Safety mentioned it in his speech. People might remember it. The individual involved had a lot of currency from various countries in his pockets. The security agencies, the ministers and the courts determined that he was dangerous, so he was deported. Those who are kept here are the ones who could be killed or subjected to cruel treatment if sent to another country, so we cannot send them anywhere.

Under these exceptional circumstances—and they remain exceptional—how long will an incarceration last? The government did not want to answer this question. The response given by the court indicated that, under the law, the incarceration or its grounds should be reviewed at least every six months.

Security certificates have rarely been used. However, since 9/11, that fear has emerged among security services. They concluded that some of these people had been sent to the United States and were leading a perfectly normal life, without having to maintain any contact with security organizations and that, one day, they were called and asked to participate in an operation. They were even convinced that many of those who had participated in that operation did not know exactly what they were going to do, but were willing to participate in an illegal or terrorist operation. This is what is known as a sleeper cell. And this fear of sleeper cells means that there is now a greater tendency to use security certificates than in the past.

Thus we are more aware of the limits of the current procedure and the underlying reasons. I must say that, personally, having read the reasons given by the judges, I am convinced that security certificates remain necessary for completely exceptional cases. However, our procedure must be consistent with our principles of law.

Of course, judges had to rule on this on their own. They themselves expressed some concerns regarding the procedure in place, in the absence of advocates. This concern was best expressed by Justice Hugessen. Here is what he had to say, in a speech that has been cited extensively in the case law:

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.

Judges did not like having to make such a decision on their own.

In my opinion, the bill tabled by the government does much to remove the unease of judges, but does not pay the same attention to the pursuit of fairness in this process as did the judges.

For example, there are only a bare minimum of guidelines for the creation of the new position of special advocate and also with regard to the issue of appeals. An appeal will only be allowed if the judge, having heard the government's and the special advocate's representations, upholds the order for removal or incarceration. If the individual cannot be deported, there can only be an appeal on a question of law or general interest raised by the judge.

It is definitely not very reassuring for the person involved to know that the individual who confirms his deportation is also the one who prepares the notice of appeal. I do not understand why the government went so far. A similar burden does not exist anywhere else in our laws. Even when the Crown can appeal only on a question of law, it is still the crown attorneys who prepare the notice of appeal.

In my opinion, the government should have taken the opportunity to carry out an in-depth review of the security certificate process. It should also have taken into account the experiences of special advocates in other countries such as Australia, New Zealand and England. It should also have considered our own experience with special advocates, those who represent certain individuals who file complaints against the activities of our Canadian security services.

The member who spoke before me rightly pointed out that these advocates can remain in contact with the individual who files a complaint, who complains about the security services. They are given secret information and there has never been a complaint that these advocates have communicated these secrets to the plaintiff.

In the French text of the bill, “special advocate” has been translated as “défenseur” or defender. That is an absolutely inappropriate title. The special advocate is not a defender. It is also important to realize that he is not required to maintain the solicitor-client privilege. I do not understand why that is not the case. That means that the individual involved may wonder whether admissions he makes to the advocate, who meets with him to explain his case, may be used against him.

I see no point in eliminating the requirement that the special advocate must keep secret any information shared in confidence by the individual in question. It is difficult to say what the defence will be, because he is not there to defend. He is there to give another point of view.

I also think we should have answered the question left hanging by the court: how long will we hold these people without any proof that they committed a crime? There is no evidence that they conspired to commit a crime. In fact, if they had conspired to commit a crime, the solution would be to charge them and bring them before the courts. All we have are reasons to believe they were here to commit a terrorist act at some point.

For how long? The six months will become another six months, and another. Are we looking at 10 years, 20 years? Some individuals have already been held as long as eight years.

I have a feeling that with the bill before us, the government is looking to do the minimum of what the court is asking. In so doing, it has taken a huge risk. I am absolutely sure that sooner or later the issue will once again end up before the Supreme Court. Furthermore, the Supreme Court may well feel that the measures taken are insufficient and that some aspects are still unconstitutional. Even if that is not the case, we should remember that the Charter of Rights and Freedoms is a charter of fundamental rights. In a country like ours, we surely want our citizens to have more than fundamental rights. For example, with respect to procedural fairness, in a hearing with the potential for incarceration, indefinite incarceration is one of the worst sentences. Even worse is the sentence for murder.

So, we could make a series of amendments without the risk of revealing any secrets of security agencies that should not be revealed. As well, the law does not achieve its goal of deporting from Canada foreign nationals who truly are security risks.

We therefore intend to support the bill in principle.

The government is right when it says that we have to respond to the Charkaoui case. We must respond to the Supreme Court order to improve the process, but we should take the opportunity to make sure this bill does not need to be amended in four or five years. The government should be humble enough to recognize that its proposal is not perfect and that, in a democracy, parliamentary debate is essential to achieve a balance. What we are looking for is a balance between the need for security and respect for the values of procedural fairness.

We are therefore going to propose several amendments. The speaker who preceded me represents a party that used to be in power and used these security certificates. This member suggested several amendments. The fact that this party used these certificates in the past shows that these improvements do not pose a threat to security.

All evidence obtained through torture should clearly be eliminated, and the bill should stipulate that a special advocate's relationship with the person is protected by solicitor-client privilege. The person should be able to choose an advocate with a security status from the Department of Justice list.

The French term “défenseur” should be corrected, because it is not only inappropriate, but misleading. As well, the decision is so important—individuals who cannot be deported to a country where they do not risk the death penalty or torture will be incarcerated indefinitely—that the burden of proof must also be important. The judge must be convinced beyond a reasonable doubt. Special advocates should have the necessary resources to carry out their duties. As well, they should be entitled to all the information concerning the individual, not just some of the information.

The right of appeal should also be extended.

We could improve this bill and pass it quickly, which is what the government wants.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Mr. Speaker, I come from the home of the BlackBerry. If you think of the BlackBerry, it will remind you of my riding of Kitchener—Waterloo.

Let me thank the hon. member for his input and read for him a quote by the deputy leader of the Liberal Party. In The Lesser Evil: Political Ethics in an Age of Terror, he states:

Openness in any process where human liberty is at stake is simply definitional of what a democracy is. The problem is not defining where the redline lies, but enforcing it. A democracy in which most people don't vote, in which many judges accord undue deference to executive decisions, and in which government refuses open adversarial review of its measures is not likely to keep the right balance between security and liberty. A war on terror is not just a challenge to democracy; it is an interrogation of the vitality of its capacity for adversarial review.

I have spent quite a bit of time thinking about this issue. There is something fundamentally flawed in the approach we have undertaken. The security certificate, as we know, predates the Charter of Rights and Freedoms. It predates the Anti-terrorism Act. Actually, it has been in place in this form for 30 years under the Immigration and Refugee Protection Act.

Of course, we are debating changes to this process in this chamber, yet the Anti-terrorism Act is now being debated in the Senate, which is dealing with parts of the act. It seems to me that when we talk about these two pieces of legislation they are not divorced from each other. We really have to consider the implications of both.

There is a question that I think we as parliamentarians should answer. Let us look at the empirical evidence of what has happened in terms of actions that have been taken since 9/11, the fateful day that caused us to rush into anti-terrorism legislation. Of course, this is part and companion of that, of what already existed. We really have to look at whether we have enhanced the security of Canadians. And have we enhanced the security of the rest of the people on this planet or have we made it worse?

I put that to members because we have a long history of, in times of crisis when we need the Charter of Rights and Freedoms, taking away these rights. My question--

[The Deputy Speaker, NDP, Bill Blaikie]

Order, please. I am sorry, but the member has had three and a half minutes to ask his question. The hon. member for Marc-Aurèle-Fortin.

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

Mr. Speaker, I was listening to the explanation the hon. member was giving to justify his question. Essentially, he is asking whether we have indeed enhanced security with the measures we have taken. Personally, I do not think so. I know that those who do think so could never prove it because we have continued to live in security.

But just look at the mistakes that were made in the Arar case. I am trying to follow from a distance the case in Toronto of the only conspiracy for which the perpetrators have been tried under the Anti-terrorist Act. It seems that the accused are being released one after the other. I do not know when we will see the end of this case. Accordingly, I do not think the measures we have taken are enhancing security.

In any event, I think the fight against terrorism is accomplished through the work of security agencies, by the systematic gathering and interpretation of bits of information that make up a whole. That is why I quite like the expression “intelligence agency” because the idea is to understand the relationship between the components through intelligence. It is through this work, and not through legislation, that we are enhancing our security. Terrorism has always been illegal. I do not know of an act of terrorism that can be considered legal and I do not think anti-terrorism legislation has contributed much. The same is true for the few times security certificates have been used.

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, I was recently appointed the NDP critic for public safety and I am glad that Bill C-3 is the first legislation I will be speaking to in that capacity.

Ensuring public safety is essentially about protecting Canadians' quality of life, something that we all support regardless of political party. New Democrats believe that quality of life is about a balance between being free and being secure. With Bill C-3, the Conservatives have once again failed to find the balance in the process.

This legislation does not make Canadians any more secure, as I think the member across the way just stated, but it does undermine our fundamental freedoms. That is why the NDP opposes Bill C-3 and why we hope the other opposition parties in the House will do the same.

We have two major problems with security certificates. First, security certificates are simply the wrong way to fight suspected terrorists, because they do not actually punish people who are plotting terrorist acts. Under security certificates, suspected terrorists are detained and deported back to their country of origin. Do the Conservatives or does anyone really believe that makes Canadians safer?

We in the NDP believe terrorism is a serious crime. It is not a legal activity but a crime, and there should be serious consequences. If a person in Canada is plotting terrorist actions, he or she should be arrested, charged for the crimes, convicted, and put in jail. That will make Canada a safer place.

When the Parliamentary Secretary to the Minister of Public Safety spoke to this legislation, he called security certificates an important public safety tool, but how are Canadians any safer when suspected terrorists are simply forced to leave the country but then continue their activities or their suspected activities?

The parliamentary secretary also said in his speech that the government wants what Canadians want: to protect the safety of the Canadian public. I think the parliamentary secretary and the Conservative government are just a bit out of touch. The NDP wants what Canadians want. We want to see terrorists arrested and put in jail. That is how the safety of the Canadian public would be protected.

The Conservatives' out of sight, out of mind approach to national security is just not good enough. The government uses tough language when it talks about protecting public safety, but if we listen closely to what the Conservatives are saying, we will realize that it is all about sounding good for the television cameras while trying to convince Canadians to give them the majority they are so desperately seeking.

Our national security is not a prop to be used in a show of political theatre. The NDP believes the Conservatives should walk their talk, do the right thing, abandon this flawed security certificate process and use the laws of our country to punish terrorists.

Terrorism is a crime. Terrorists are criminals and they should be vigorously pursued under the Criminal Code of Canada, not the Immigration and Refugee Protection Act. I find it deeply disturbing that deporting terrorists is the best solution the government can imagine for keeping our country safe.

As I said earlier, the NDP has two major problems with Bill C-3. Our second issue with security certificates is that they seriously undermine core values of our justice system. Remember that public safety is about finding that balance between freedom and security, and this new legislation is just as imbalanced as the process that existed before the Supreme Court ruling.

With Bill C-3, the Conservatives are trying to implement a security certificate process that will not violate the charter, but there are many experts who believe this new proposal will be struck down by another Supreme Court challenge.

Security certificates undermine our justice system by circumventing due process that is a fundamental right in any democracy. The Conservatives have tinkered with a fundamentally flawed piece of Liberal legislation, but their tinkering is not enough to fix the problem. Because there are serious consequences facing those named and security certificates, strong procedural safeguards are required. This legislation does not go far enough in protecting civil liberties.

There are serious consequences to being named in a security certificate. These include loss of liberty, a deportation order and the possible removal to torture. One well recognized aspect of fundamental justice is the right of full answer and defence, the right to know the allegations against a person, and the opportunity to respond to those allegations. That right does not exist in the security certificate process.

Also, critical evidence may be presented to the presiding judge in the absence of detainees and their lawyer, and that is just not right. Even though this evidence is not disclosed to detainees or their counsel, the judge can consider the evidence in determining if the certificate is reasonable. Detainees may never know the reasons why they are being deported from Canada, let alone have a meaningful opportunity to challenge those reasons.

The Conservatives will try to say that they have improved on the mess the Liberals made of security certificates by introducing a special advocate into the process, but we already know that special advocates do not fix the fundamental problems with security certificates.

Special advocates are used in New Zealand and the United Kingdom, and the process in both of those places is seriously flawed. The United Kingdom is often cited by those who support modifying rather than abolishing the security certificate system, but these proceedings, where security-sensitive evidence is not disclosed, and a special advocate who has the right to attend and participate in in camera sessions, have been subject to several court cases that have ruled against the arbitrarily imposed limits.

Given that the U.K. lords of appeal ruled against provisions of the process on October 31 of this year, it is obvious that the system is flawed. That is the very reason that Ian Macdonald, a special advocate with over seven years experience in the U.K. system, quit over the failure of the British government to address these exact problems within the British system. The Conservatives know this. In fact, Mr. Macdonald even testified before the public safety committee to share his criticism of the special advocate process.

An excellent critique of Bill C-3 has been prepared by Craig Forcese and Lorne Waldman. I would like to recognize them for their excellent work opposing this flawed system. In their analysis, which I would be happy to forward to the Minister of Public Safety although I expect he may have had it and simply not acted on it, Forcese and Waldman conclude that special advocates suffer from a number of shortcomings.

Interestingly enough, some of these shortcomings have been mentioned in the House by the Liberal opposition party which I understand is going to support the bill with all of these shortcomings that were listed earlier by the Liberal justice public safety critic.

They criticized Bill C-3 for not allowing full disclosure, and for not allowing persons detained and their lawyers to know all the relevant information being used against them. They say the Conservatives are wrong in not allowing special advocates to be in contact with the detainee throughout the process. They condemn the government for not taking a strong stand against using information for security certificates that was obtained by torture.

The NDP strongly believes that a system that denies the right of full answer and defence cannot be corrected through mere procedural adjustments.

As I said at the beginning of my statement the NDP strongly opposes security certificates. We had hoped the other opposition parties in the House would do the same, but I was very disappointed to hear the Liberals say that they “won't stand in the way” of this legislation. That is hardly a ringing support.

I was also shocked to hear this, given the Liberal caucus has been divided on these issues in the past. It demonstrates once again where we are at in this Parliament.

We have a Conservative minority staging political theatre as best it can in a frantic quest for a majority and we have a Liberal opposition that is so afraid of its own shadow it will do anything to avoid an election. The Liberals abstain from votes or simply do not even show up and now they will even vote to support legislation that many of them fundamentally disagree with and have presented a long list of flaws with this legislation.

It seems the Liberals were in government so long they have forgotten how to do the job of an opposition. Perhaps they should look to the NDP for leadership, a party that is not afraid to oppose the Conservatives when they are taking Canada down the wrong road.

Let me wrap up my comments now by summarizing why the NDP is taking a stand in the House against Bill C-3. We are voting against this legislation because the Criminal Code already has all the tools we need to protect our national security while honouring our Charter of Rights and Freedoms.

If the Conservatives were serious about protecting public safety, they would punish people who are suspected and convicted of terrorist acts, not simply deport them.

The NDP is also opposing Bill C-3 because it undermines fundamental Canadian values. Inserting special advocates into the security certificate process does not adequately address concerns around the right to due process.

However, even if all civil liberties were somehow protected in this legislation, security certificates under the Immigration and Refugee Protection Act, which was stated a few moments ago have been around for a very long time, would still not be the right way to deal with threats to national security.

Unfortunately, because the Liberals have chosen to support the Conservatives on Bill C-3, it will likely pass and come to the public safety committee for examination. If that happens, the NDP will do everything in its power to ensure this fundamentally wrong legislation does as little harm as possible. But let us be clear with one another in this House and with Canadians who are watching today, Bill C-3 is the wrong way to go.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Mr. Speaker, to my colleague across the way, I very much agree with her in terms of the security certificate process and how people under the present system can be jailed indefinitely. Of course, as soon as they agree to be returned to the country the government wants to send them to, they are allowed to go free. It does not strike me as a way of enhancing security because if people are a danger and a threat, they can return to Canada or they can cause those kinds of activities elsewhere.

I wonder if the member could make a comment specifically looking at another aspect which is very troubling, the number of wrongful convictions we have had in this country in a process which respects the charter, in a process which goes through the rigours of criminal law, where it is done in open court, and it is done under finding of beyond a reasonable doubt in terms of guilt.

There are many names, but some of the obvious cases which we know about involved Donald Marshall, Guy Paul Morin, Stephen Truscott, and of course we all know about the Coffin case. We also know about some of the other cases coming forward now as a result of a pathologist giving wrong information and too much reliance on that wrong information.

My question for the member is, if we use the most rigorous system we have and we get all these wrongful convictions, what are the probabilities of wrongful convictions when we use a system with very low standards, closed trials, information not known, and people unable to defend themselves?

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, this is a very key question. In circumstances where ostensibly defence lawyers have had made available to them all of the evidence that is seemingly available to them to put forward a case on behalf of their client, we still see mistakes and the member has named a number of them.

How many more people would be convicted even in the cases that the member speaks of which are not about suspected terrorists other than perhaps one? If any lawyers had to go to court knowing that they were only given certain pieces of information judged by someone else to be relevant to their client, I expect many lawyers would fail to take the case because they could not mount a full defence.

Therefore, this simply increases the risk that more errors will be made because full information is not provided to lawyers and to have a bridge of a special advocate who then cannot talk to the individuals or their lawyer about what they have seen is very troublesome and will increase the risk of errors being made.

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

Mr. Speaker, I have three quick questions for the member.

It seems that we agree in many respects, but that we have come to two significantly different conclusions about second reading. I believe the member understands that the fundamental difference between our position and hers is the issue of sleeper cells.

Does she believe that there are terrorist organizations in the world today that are training people and sending them to democratic countries with orders to lie low and lead an exemplary life until the day they are told to commit a terrorist act with other people? They have not yet done anything illegal, but one day, they will.

Does she believe that intelligence services can identify such individuals—by planting agents in training camps, for example? The agents' names cannot be revealed, of course, because to do so would put them in grave danger. We have to hear their side of the story.

That is one of the things that convinced me. Such situations have convinced me that security certificates are necessary. I was trained as a lawyer, and I spent most of my career as a defence attorney, so even though I do not like the process, I believe there is a need for it. It must be used sparingly, however.

Even though the member is against it, is she willing to work together to improve the security certificate process and make it as fair as possible, just as Messrs. Waldman and Forcese, whom she quoted, are doing?

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, are there cells throughout the country? I do not know, but I believe there to be.

I think the member said earlier that he liked the English words of gathering intelligence. The process of gathering intelligence alerts our security to the fact that those people may exist. However, if people are in Canada living an exemplary life and breaking no laws, perhaps they have changed their minds or disavowed themselves from their original training. I do not know.

However, to walk into someone's home, someone who lives here, who has committed no crime and lives an exemplary life, seems to be an extreme violation under our Charter of Rights and Freedoms. Should those people commit an illegal act or be proven to be planning something, let us arrest them. Let us charge them for criminal activity.

Because the security certificates have had pieces added to them to try to make a flawed system better is not enough to convince me to support the bill at this time.

[Denise Savoie, NDP, Victoria, BC]

Mr. Speaker, my colleague has eloquently outlined why the NDP will oppose this flawed bill. As she said, the security certificate process undermines fundamental Canadian values because of processes like detention without charge and the inability of accused persons to know or examine the charges against them.

She has also said that there is nothing in the bill that the criminal process could not deal with. In The Shock Doctrine: The Rise of Disaster Capitalism, Naomi Klein, a Canadian writer, has proposed some reasons why neo-liberal governments, like the present government, offer these kinds of extreme solutions to address perhaps a real problem, in that they move us away from basic democratic principles.

Could she offer her comments on that and on what other reasons the Conservative government might propose this solution instead of using the Criminal Code as it is available to us now?

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, I think this is the easiest way to try to fix the order from the Supreme Court, that came down that this did not meet the charter. I do not think this will withstand a charter challenge either. I am sure there will be a challenge should this pass and it will be not upheld as legislation that protects people.

There are other examples, and the Liberal critic spoke to them earlier, of the SIRC process where full information is available to council. There is no example, ever, of there having been an error made by a lawyer who disclosed too much. A skilled lawyer knows how to put those questions. Therefore, I think it is the easiest way to do it.

Perhaps if the House had not prorogued for so long, we might have had an opportunity to have a more thorough look at whether there was a better way to do this. Unfortunately, we were denied that opportunity by a government that did not wish to return to the House for this debate.

[Ed Komarnicki, Conservative, Parliamentary Secretary to the Minister of Citizenship and Immigration]

Mr. Speaker, I am pleased today to lend my voice to this important debate. Bill C-3 has wide-ranging implications for both our immigration and refugee protection system and ability to protect our national security.

Once again Canada is taking a lead in this area. As my hon. colleagues have already mentioned, the reason for the bill is quite straightforward. The government has the fundamental responsibility to defend Canadian public safety and national security. This is first and foremost. We know we must have the tools needed to protect Canadians. Our safety and security are paramount.

At the same time, we recognize that these tools must protect the Canadian core values of freedom, democracy, human rights and the rule of law. Therefore, artful balance must be struck and I believe the bill strikes that balance.

Protecting national security means securing our quality of life. As well, securing our quality of life also means respecting the rights of all people in Canada. Indeed, as a delicate balance, we must protect our national security and individual safety with such minimal interference with personal freedom and rights as is reasonably possible under the circumstances.

Advancing security and civil liberties together with the other is a crucial element to building a strong and open society in Canada. That is why we have introduced Bill C-3.

The Supreme Court of Canada in its ruling recognized the government's responsibility for protecting Canadians from terrorists and other non-citizens who posed serious threats and the use of security certificates as a means of achieving this objective. As well, it ruled that changes were needed to the security certificate process to better protect the rights of individuals subject to these certificates.

While the Supreme Court provided the government with a great deal of insight into this matter and laid out possible options for action, the government was also privileged to be able to rely on the work of the parliamentary committees who studied this issue.

At this time I will address the recommendation made by the Standing Committee on Citizenship and Immigration during its study of detention centres and security certificates. I personally had the opportunity to visit the detention centre in Kingston. I spoke to and listened to the detainees and the concerns they had.

In the recommendation by the Standing Committee on Citizenship and Immigration, the committee recommended that the government comply with the Supreme Court of Canada ruling in Charkaoui v. Canada and amend the act to provide for the appointment of a special advocate in proceedings in Federal Court to determine the reasonableness of a security certificate. That is exactly what the bill purports to do.

The second recommendation was that a special advocate should be a lawyer with appropriate security clearance who would be appointed to represent the interests of the individual subject to the certificate and to test the confidential or secret evidence presented by the government, and the bill provides for that.

Finally, it said that the special advocate process put into place should, subject to national security considerations and with minimal impairment to the rights of the detainees, afford detainees an opportunity to meet the case against them by being informed of that case and being allowed to question or counter it. Again, the bill purports to do that.

The committee also recommended that the government institute a policy stating that charges under the Criminal Code would be the preferred method of dealing with permanent residents or foreign nationals who were suspected of participating and contributing to or facilitating terrorist activities. However, there is a difference between a criminal act and the intention necessary to make that act criminal and someone who is not yet in that stage who will be a potential danger to the safety or the national security or to individuals. Therefore, the two acts need to be dealt independently of each other.

I will try to address this in some detail and explain why the security certificate process is vital for the safety of all Canadians.

First, the security certificate process is necessary to protect Canadians from individuals who are inadmissible to Canada. Let me give a brief description of the security certificate process. The process has existed for more than 20 years in the Immigration and Refugee Protection Act and in other acts.

Since 1991 and contrary to what some members of the House may try to indicate, only 28 certificates have been used. Of those, there are currently six active cases. Nineteen individuals have been deported from Canada and three certificates were found not to be reasonable by the federal court. These statistics show that the process has been used relatively and frequently and only on a when needed as needed basis.

When we consider that Canada admits roughly 95 million people a year into the country, including 260,000 immigrants, it is plain to see that this process is very seldom used, and only in exceptional circumstances and in the rarest of cases.

A security certificate can only be issued against a foreign national or a permanent resident who is inadmissible to Canada on grounds of security, violating human or international rights, serious criminality or organized criminality. We are not talking about a Sunday school variety of misdemeanours. We are talking about serious matters, violating human or international rights, serious criminality or organized criminality. This is the group and category of persons we are talking about.

These certificates are only used when the information used to determine the person's admissibility to Canada is classified and needs to be protected for reasons of national security or the safety of any person. At some point, national security and the safety of the person must trump individual rights, but in such a manner that least interferes with this. That is the idea behind the bill.

Individuals who are inadmissible to Canada for other reasons are subject to removal order, but in most of these cases it has not been necessary to use confidential information. To protect that information from public disclosure in order to protect the safety and security of Canadians, these individuals are not subject to the security certificate process as their cases do not involve sensitive security information. Therefore, in the majority, and by and large in many of the cases, a full disclosure is made and this issue does not even arise.

As a first step in the security certificate process, the Minister of Public Safety and the Minister of Citizenship and Immigration review the case based on information presented to them, including the classified intelligence information. Both ministers must sign the certificate for it to proceed. It is not done without regard to what is before them. It takes two ministers, and following that, the certificate is referred to a designated judge of the federal court to conduct a hearing to determine whether the certificate is reasonable. This, in and of itself, provides a measure of protection to the individual, but other safeguards are put in place as well.

During these court proceedings the federal government may present classified information for the judge's consideration. This information is not disclosed to the individuals concerned or their counsel. However, an unclassified summary is given to the subject by the court in order to allow the individuals to be reasonably informed of the circumstances giving rise to the certificate. This contains a fairly detailed explanation of the case an individual must meet or answer to. If the judge determines the step is reasonable, it becomes a removal order.

During the reasonableness hearing or after the certificate is found to be reasonable, the federal court generally undertakes a risk and danger assessment to determine if the person can be removed from Canada. This is to verify whether the person would likely face torture or other cruel or unusual treatment if returned to the country of origin. This type of determination is also subject to review by the federal court, and Canada has never knowingly removed individuals who face a substantial risk of torture.

As hon. members can see, many people review the case and great care is taken in reaching a decision to invoke the security certificate process or not, and to ensure its integrity.

In its February ruling in the Charkaoui case, the Supreme Court of Canada stated some aspects of the security certificate process had to be strengthened to provide those subject to security certificates a greater opportunity to challenge the government's case.

Today I will explain for hon. members the reason for this process provided for in the Immigration Refugee Protection Act when it is invoked and why it is invoked rather than the provisions of the Criminal Code when dealing with specific cases. It is my hope this will help hon. members understand the crucial need for this legislation and the importance of voting in favour of Bill C-3.

The security certificate process does not have the same objectives as the criminal prosecution.

Let me state at the outset that under no circumstances should immigration proceedings and criminal justice proceedings be seen as an alternative to each other. Each exists for a specific purpose and its procedures have evolved over time as appropriate to that case.

Criminal proceedings seek to convict, and if a conviction is obtained, should apply a punitive sentence as decided by the court. That is when a crime is alleged to have been committed or when a series of actions or intentions breaches an existing law in Canada. In some cases, individuals may not have progressed to that stage, nonetheless they are a threat to our national security or the safety of a person.

While the security certificate process is meant to remove inadmissible individuals from Canada, it has no punitive design. Decisions on whether to prosecute a case criminally or to seek removal from Canada should be made on a case by case basis. There should never be a presumption as to which avenue should be pursued.

Every decision must be taken after independent evaluation of the facts, the circumstances and the context. As I have already said, the basis for proceeding with the security certificate process under the Immigration and Refugee Protection Act is whether the person is admissible to Canada and therefore subject to further removal. In this case, it must involve sensitive information that cannot be disclosed for national security reasons or to protect the safety of other persons.

Again let me stress that these cases refer to individuals who are somehow involved with terrorism, organized or serious criminality, or violating human or international rights. This process is not invoked for just anyone who is found to be inadmissible to Canada.

On the other hand, the only basis in which criminal proceedings are conducted is when, following an independent investigation by the police, a review of the evidence shows that there is a reasonable prospect of conviction and that to the prosecution, it is in the public interest to proceed with the charge. The decision to prosecute or not is within the independent jurisdiction of that prosecutor and the issues involved in the concern are different in both cases.

Another difference between the two lies in the rights and safeguards that apply to each. The government believes it would not be appropriate to select one type of proceeding over the other in order to ensure whether the particular charter provisions or other safeguards will or will not apply.

Certain rights, such as the right to be presumed innocent or to trial by jury, for example, are appropriate only in criminal proceedings, while others, such as a fair hearing, have a more general application. Any question of which rights or safeguards should apply should be based on the nature of the proceeding at hand. The government believes the nature of the proceedings must ultimately be governed by the facts and context of each case.

With respect to the security certificate process itself, we have an impartial judge who hears the case and there is provision for adversarial process. This last point is enhanced by introducing the special advocate in the proceedings as is proposed in the bill.

As the hon. members can see, each system serves a distinct fundamental purpose. The government believes the two should not be confused or seen as interchangeable and it would not be appropriate to select one type of proceeding over the other.

Let me say what the bill does.

It allows a special advocate to protect a person's interest in certain proceedings when the evidence is heard in the absence of the public and of the persons and their counsel. The special advocate may challenge the claim made by the minister of public safety and emergency preparedness as to the confidentiality of the evidence as well as the relevance of the evidence, the reliability of the evidence, the 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 interest.

That is the vast extension of what was in the previous act. It allows to test, to weigh, to cross-examine and to deal with the evidence, as a lawyer would in any normal case. It also allows for a judge to intervene.

Another difference I would like to discuss is the detention aspect of the security certificate process as it is different compared to incarceration in the context of the criminal justice system. Incarceration imposed as a criminal sentence is meant as a punishment and also as a rehabilitative tool. This type of punishment is applied to facts established at the time of conviction and is based on sentencing principles which include, for example, proportionality between the length of imprisonment and the seriousness of the crime.

On the other hand, detention pending removal is based on periodic assessment of risk to the public for national security. This is not a punitive measure and it does not serve a rehabilitative purpose. In other words, the persons are kept in detention just until they leave the country. The objective is removal from Canada. The fact is that individuals subject to security certificates are free to leave Canada at any time and to return to their country of origin.

In its decision in Charkaoui, the Supreme Court reaffirmed the appropriateness of detention under our immigration law including, where necessary, detention for extended periods. More specifically, the court stated that extended periods of incarceration do not infringe on the Charter of Rights and Freedoms, provided that process allows for a regular review and a consideration of factors related to each individual case.

The applicable charter safeguards and requirements for robust and regular reviews of detention have now been clarified by the Supreme Court in its decision and these requirements will be met and they will be met by this bill.

Bill C-3 enshrines that foreign nationals will be granted the same rights to detention review as permanent residents, that is to say, within 48 hours of the initial arrest and at least every six months thereafter. I think Canada leads the way when compared to other countries in this regard. While the security certificate process is seldom used, it is an absolute vital national security tool that we need to have available.

I previously mentioned some statistics that proved just how sparingly this process is evoked in Canada. Of the millions of people who have been admitted to Canada, only a few people have been subject to security certificates.

The infrequent use of this process does not in any way mean that it is not necessary as a tool in our national security efforts. In no way should we be complacent enough to think that we can handle these cases in another way. The Supreme Court confirmed the use of security certificates generally and recognized that one of the most fundamental responsibilities of a government is to ensure the security and protection of its citizens. That is paramount.

In fact, by delaying the coming into force of its ruling by one year, the Supreme Court was giving the federal government and ultimately Parliament an opportunity to amend the law to be able to maintain security certificates as a public safety tool, and so we have done that.

Time is growing short for us to amend the legislation. If Bill C-3 were not passed by Parliament before February 2008, the current legislation would be struck down. Individuals subject to a security certificate would no doubt succeed on application in having their certificates quashed. This means they would no longer be subject to detention or any conditions of release, which would pose serious public safety risks and we would lose security certificates as a tool to help keep us safe and secure.

There is an important need for security certificates and their process. While some hon. members may believe that we are able to effectively deal with these cases through criminal prosecution, that is simply not the case because they are entirely two different and distinct matters.

I hope this explanation today of the role of criminal prosecutions will help guide hon. members in voting in favour of this bill. Security certificates and criminal prosecution do not have the same goals, the same processes or the same outcomes. They cannot be interchanged.

We must continue to have the ability to remove from our country inadmissible persons who pose a grave and severe threat to Canadians. Whether it is a foreign spy, a terrorist, a member of a violent organized crime group or a person who has committed heinous human rights atrocities overseas, these people cannot and they must not be allowed to stay in Canada. It would be like closing the barn gate after the horses have left. We do not do that. We do not leave the gate open. We have to be gatekeepers.

Bill C-3 will allow us to continue to defend our society from such threats and they are significant. I encourage hon. members to show that they are serious about protecting Canadians from any individual posing threats and that they would vote in favour of this bill.

I would reiterate that the bill itself has presented a series of protections that I think provide the safety needed to the individual without comprising national security.

The special advocate's role is to protect the interests of the permanent resident or foreign national in a proceeding. That is what it is: to protect that interest. The special advocate can challenge the claim that there is a need for disclosure and confidentiality. The special advocate can challenge the relevancy, reliability and sufficiency of information or other evidence and the weight it should be given. The special advocate can make oral and written representations. The special advocate can cross-examine witnesses who testify with a judge's discretion and authorization and any other powers that are necessary to protect the interests of the permanent resident or foreign national and that covers a multitude of bases.

[Denise Savoie, NDP, Victoria, BC]

Mr. Speaker, I think we all agree that it is the government's responsibility to protect its citizens. Anyone who plots a terrorist act should be tried, convicted and punished, not simply, in our opinion, deported to another country. I wonder if the hon. member thinks that an accused should have the right to know and to examine evidence against him or her.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Mr. Speaker, again, the member is attempting to confuse a criminal proceeding with an immigration proceeding. In an immigration proceeding, it is to protect the country from individuals coming to the country who pose a threat to the country.

In a criminal proceeding, what we have is someone who is charged, or intended to be charged, with committing a crime, committing a specific act against the legislature. Those do not have the security interests that are exhibited in a case of foreign nationals wanting to coming to Canada. They are entitled, in fact, to leave at any time they want to. They are just not entitled to come here if there is serious criminality involved, and if there is a threat to security, or terrorism in that area.

However, having said that, the special advocate would balance the rights of the individual to have information regarding his or her case and the ability to address it. That special advocate can test the evidence, can weigh the evidence, can cross-examine witnesses, can argue before the court as to whether or not that information should be kept confidential or not. I would presume that counsel, the ministers of the government of the day and a federal court judge, would have a better sense of coming to the conclusion that that must be kept out of the public eye more so than the individual himself or herself who obviously is the subject that proposes the threat to the country.

It is a balance, and I appreciate that, but it is a balance that allows, with a unique strategem, the individual to know the case that is put forth, to examine and test it within the confines of that limit, and to protect personal interests but without trumping national security.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Mr. Speaker, listening to the parliamentary secretary and listening to quite a bit of debate on this issue, as well as the anti-terrorism bill, I am reminded of what it must have been like back during the time of the first world war and the time of the second world war because for national security we interned people from the Austro-Hungarian empire, we interned many people of Ukrainian descent, and of course during the second world war, we interned Italians, Japanese-Canadians, and the list goes on and on, all done in the name of security.

As members know, we have settled with Japanese-Canadians to make up for the injustices of the past and we have done some with Ukrainian-Canadians as well.

It seems to me that the parliamentary secretary should answer this question. He often says it is an immigration act when we keep people in custody indefinitely and they have a Hobson's choice: If they go back to the country they came from, they might be tortured or killed. Then of course he differentiates it from the Criminal Code where we actually have proof and give people the right to appeal before we can lock them up for a long period of time. Surely the member sees the contradiction in those two approaches. I would appreciate his response.

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

Mr. Speaker, precisely. We talked about the Hungarians in the dark moments in history. When the Ukrainian-Canadians were interned, this procedure was not in place and they were not subject to it. Had they been subject to this procedure, that would not have happened.

First, the Minister of Citizenship and Immigration and the Minister of Public Safety has a look at the information and the evidence to be sure the case should go forward.

Second, we have a federal court judge who looks at the matters to ensure they are not superfluous, not whimsical. They have to be substantial and they have to be with respect to the safety of our country, with respect to someone endangering the safety of our national security. This is not done at a whim. If we had this kind of process in place, that would not have happened.

This process allows the council to intercede on behalf of the individual to make a case for that individual to ensure there is a perfect balance in the end so the individual is protected. There are measures there where the judge can allow a fairly significant type of procedure to take place for the special advocate, including the kinds of things we would do in a criminal trial, like cross-examination of a witness, testing the evidence and dealing with the weight and the sufficiency of the evidence, the kinds of things that would ensure this is proved, that it is real.

In terms of the distinction between criminal proceedings and these proceedings, I thought I adequately addressed that in my initial speech, but there is a difference.

[The Deputy Speaker, NDP, Bill Blaikie]

I am sorry to interrupt the hon. parliamentary secretary, but the time for statements by members has arrived. Questions and comments will continue when the House takes up this matter again.

The hon. member for Yellowhead.

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

[The Speaker, Liberal, Peter Milliken]

When the debate was interrupted by proceedings at 2 o'clock, the hon. Parliamentary Secretary to the Minister of Citizenship and Immigration had the floor for questions and comments consequent upon his speech. I guess he is rising in response to the previous question or comment.

[Ed Komarnicki, Conservative, Parliamentary Secretary to the Minister of Citizenship and Immigration]

Mr. Speaker, there was a two part question. I answered the first part but not the second part. I would like to answer the second part of the question raised by the hon. member for Kitchener—Waterloo. I believe the second part was his concern that a foreign national may be held indefinitely under a security certificate indefinitely whereas someone charged under the Criminal Code for a Criminal Code offence would serve a time specific.

It points out the very essence of the distinction between the two. In the matter of the Criminal Code, the charge is for a criminal act that has been committed and the sentence is proportional to the type of act committed and the length of time that is appropriate to be served for that crime. It is unlike the issue we are dealing with here, which is national security and the admissibility of a person into Canada. A foreign national is not admitted to Canada if there is a security risk, if the person is part of organized crime or a terrorist, or there is evidence to believe that.

The foreign national, although not allowed into the country, can leave at any time. The only reason for detention is to protect the safety and security of the public. It is not a punitive measure. It is not something that is definite in time. Having said that, the bill provides for the person to be brought before a Federal Court judge within 48 hours and if there is a detention order because of a public safety and security issue, that is reviewed every six months and for as long as the person is in detention, but the person is free to leave at any time.

That is a very significant distinction. If there is another way to protect the safety and security of the country, the judge is able to release those on certain conditions, as has happened in many cases. They are restrictive. They need to be restrictive because the first and paramount interest is the safety and security of Canadians. That is the difference, that is the distinction and that is why the bill must pass.

[Dean Del Mastro, Conservative, Peterborough, ON]

Mr. Speaker, I enjoyed listening to the member's comments on the bill. I think the bill is wholly reasonable. I entirely agree with the member that the safety of Canadians needs to be the paramount concern of any government.

Perhaps the member could underline how this proposed legislation implements the Supreme Court of Canada decision regarding the reviews of the reasons for continuing to detain individuals. How have we addressed the Supreme Court of Canada's concerns?

[Ed Komarnicki, Conservative, Souris—Moose Mountain, SK]

First and foremost, be assured that there is a review, Mr. Speaker, of any detentions every six months and on an ongoing basis.

More important, there was a suggestion that there needed to be something in the nature of a special advocate. This bill provides for a special advocate who is security cleared and will have some experience in matters like this, who is able to probe the evidence, who is able to look at the material to see whether it should be confidential or not, or whether there are issues about bringing it in the public or not. The special advocate would be allowed to cross-examine witnesses, to probe the evidence that the minister has put forth. This bill underscores the idea of protecting the person's interest as much as is possible with regard to the fact that the security of the nation and the security of Canadians is paramount.

It sets out the parameters of how this might work. Then it adds a particular clause which states that the special advocate may exercise with the judge's authorization any other powers that are necessary to protect the interest of the permanent resident or foreign national.

It certainly indicates very specifically what can be done. It also says that in a challenge of the minister's claim that disclosure of information or other evidence would be injurious to national security, the special advocate can challenge the relevance, the reliability, the sufficiency of information or other evidence and the weight to be given to it. He or she may make oral or written submissions with respect to the information and other evidence that is provided and may participate in and cross-examine the witnesses who testified during any part of the proceeding that is being held.

That sounds very much like what we have in an ordinary courtroom in a criminal proceeding. It is the type of thing that is meant to protect the person's interest to the degree that it can be protected, given the circumstances that we find ourselves in.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Mr. Speaker, I am very pleased to engage in the debate.

First and foremost, let me start by saying that this is the 25th year of the Charter of Rights and Freedoms. Unfortunately, the government has not made any celebratory comments about it. It has not made a point of letting Canadians know, because the government does not very much support the Charter of Rights and Freedoms that was enacted on April 17, 1982.

It is very appropriate, in some ways, that we are debating this piece of legislation, the amendment to the security certificate act, because this legislation, which has been used to hold people indefinitely, to hold them when they do not know what the charges are against them, has been illegal for 25 years.

All governments in the past 25 years have argued that the security certificate process was constitutional. It was not until the Supreme Court struck it down, saying that this is not good enough, that governments and the bureaucracies that support governments admitted to that.

When we talk about why it is so very important to have the Charter of Rights and Freedoms, perhaps we have to reflect for a minute. I am going to make this very short, but I am going to draw it into the question. We have to look at the history of this country. We have to look at how this country has evolved.

There is a huge number of cases where we have been very draconian in our actions toward various peoples who came to Canada, be they Canadians of Chinese background or Asian background. We had the Chinese head tax and the Asian exclusion act. We had the internment of Canadians who were from the Ukraine and the Austro-Hungarian Empire.

Specifically, a colleague of mine with whom I served in the House had one uncle who was serving with the Canadian armed forces during the second world war while another uncle was interned and in detention during the second world war. I can tell members that my colleague was highly emotional about it.

Of course, we had the internment of Japanese Canadians. We had the policy of “none is too many” for the Jews. We had the turning away of SS St. Louis. We had a racist immigration policy until 1977.

So when I talk about the importance of this debate and what the charter represents, it is important to look at the history. It is because of all those injustices that I believe the Charter of Rights and Freedoms came into play and was enacted by the House.

It was a recognition that Canada is not a nation of any majority but a collection of many minorities, to the extent that we can be on the side of majority public opinion one day and we could very easily be on the side of the minority the next. Essentially, we are all minorities.

The charter laid out fundamental rights. Nothing is more important in terms of fundamental rights than section 7 of the charter, which essentially states that every person “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”. The charter then sets out another seven sections on what those legal rights are. This is a very important piece of the covenant that we Canadians share. I very much wanted to make that point.

It really is unfortunate that when we talk about the bill dealing with the security certificates, which was introduced in the House, we are not also talking about the bill on the Anti-terrorism Act, which deals with preventive detention and investigative hearings, because that bill started off at the Senate. I think it would benefit us if we took a holistic look at these various pieces of legislation.

I think it would benefit us if we looked at these in that way, particularly in the context of what happened on 9/11, because so much of our legislation now seems to be responding to the attacks on the World Trade Center. We should look back. We should try to determine if the actions taken by democratic governments in the western world, and indeed in the rest of the world itself, are enhancing the security of Canadians and security in the western world. Or are they making matters worse? I think that kind of overview would be beneficial not only to members of Parliament but to the country as a whole.

Therefore, I regret that the government has introduced the ATA or Anti-terrorism Act legislation in the Senate while of course we are dealing with the security certificate section in the House of Commons. I think a holistic approach would have been more preferable.

Much has been said about one of the reasons for having the bill, which is that we want to protect the security of Canadians. I think this is something that is very important for all Canadians to understand when we are dealing with security certificates and detentions for an indefinite period of time. If we are dealing with such dangerous individuals as the government, the security forces and the bureaucracy would have us believe, I think it is important to understand that under the security certificates, these people can leave any time they want.

It is like having dangerous criminals here. Would we allow them to leave any time they wanted to if they really were dangerous? In essence, that is what the security certificate does. It is like they can get out of jail any time they want. What the government does not talk about, of course, is the point about the people who do not want to leave these inhumane conditions. They do not want to leave being confined to indefinite detention. Many of them are afraid that in the places to which they might be sent they are going to be tortured or killed. It is a kind of Hobson's choice.

However, the point of the matter is that if we focus on how dangerous these folks are, then surely to God, if they are guilty of committing terrorism or plotting terrorism, it would benefit all of us to have them in a secure custodial place where they cannot get out any time they choose.

I think that point is very important. I used this argument in the citizenship and immigration committee when we talked about security certificates. I said that if we were fortunate enough to capture Osama bin Laden surely it would not be beneficial to us or anybody else to send him back to the caves of Afghanistan. That would not make Canada safer. It would not make the western world safer. It certainly would not make the world a safer place.

Let us take the long view. I thought about this a fair amount, because I have had occasion to live under a totalitarian regime. As many members know, I was born in Budapest, Hungary. There is a particular place in Hungary to visit. It is called the Terror Museum. It is on Andrásy utca, Andrásy street. It documents the terror under the Nazis and the Communists.

At the most dramatic spot in the museum there is a mannequin, one half of which is a person in a Arrow Cross Nazi uniform. As it turns around, we see a person wearing a Soviet uniform. What is so interesting about the museum is that it shows that the terrorism committed by either the Communists or the Nazis was equally horrible. There was no difference. They were the flip side of the same coin. When we look through the museum at the various exhibits, we realize that state terror can be very dangerous.

Yet we would deport some people to countries such as that, where human rights are not respected and executions are an everyday occurrence. If anybody has a chance to focus on that, it might give people a different perspective.

In Canada, there are six people presently under security certificates. Five of them are out on bail. One is being held in the Kingston immigration holding cell. One person is being held. It cost $3.2 million to build the facility. It costs $2 million to operate the facility. It seems to me it would be much more prudent to have that one individual released on conditions. If the government really believes it has something, then I think that person should be kept under surveillance instead of us spending that kind of money.

The parliamentary secretary would have us believe that there are many safeguards built into the security certificate. He mentioned that the security certificate has to be signed by the Minister of Public Safety and the Minister of Citizenship and Immigration before going in front of a judge.

The reality is that the present-day Minister of Public Safety, on November 19, 2002, slandered Mr. Maher Arar by implicating him as a terrorist. It is this minister, who did not have the facts and was a critic in the official opposition, who could stand up and make that kind of charge. Surely that does not give a member of Parliament any comfort on the objectivity that he will bring to the job.

The other person is the Minister of Citizenship and Immigration, who, I am sad to say, is lacking in knowledge of that portfolio. I dare say that I would not trust her judgment a great deal.

Then, to have a judicial process that is so draconian, that does not allow for any appeal and that can keep evidence away from the person being charged under the certificate, is not right.

We also have to look at the role various security organizations have played. I am going to bring up two cases because they show how the United States security service and the FBI are not in sync with our security organizations.

Let us take the case of Maher Arar, which obviously many Canadians know about. This gentleman has undergone the most exhaustive inquiry in Canadian history in terms of an individual. He was cleared of all charges and any suspicion, but the United States of America keeps him on a no fly list. That is one case.

The next case I am going to cite I saw while going through the report of the B.C. Civil Liberties Association, which made a submission to members of the House on security certificates and anti-terror legislation. It is the case of Ernst Zundel, a great nuisance and an undesirable person who was dealt with by the security certificate process as a matter of convenience. It was convenient. Yet the government made the case, with which Justice Blais agreed, that he was a security threat, even though under freedom of information it was discovered that the FBI charge concluded that this man was not a security threat.

Here we have two security services in operation in two democracies, one in Canada and one in the United States, coming to totally different conclusions.

Much has been made about this applying only to people with no status in Canada and people who are residents in Canada but are not citizens of Canada. I remind the House that in 2002 a proposed citizenship act was tabled in this chamber, under which the security certificate process was going to apply to Canadian citizens. It was going to use it against Canadian citizens as well. I say that because the way we treat people different from ourselves, be they residents, immigrants or visitors, at the end of the day is the way we can end up being treated. I invite all members to revisit that proposed citizenship act that would have placed Canadian citizens under a security certificate regime.

I mentioned that in a time of tension and fear, such as the time after 9/11 and also during times of war, is when basic human rights need to be guaranteed by the charter more than ever.

When everything is going well, it is not a problem, but it is as soon as times get tough, that we need the guarantees. It was at that type of point in time when the decision was made to get rid of Canadians of Ukrainian background. It was at that type of point in time that racist decisions were made to get rid of Canadians of Japanese background, to put them through an inhumane process for which we ended up apologizing.

There is a lot of scaremongering going on in the name of security. We have to realize that in doing this, we are essentially undermining our own security. The best way to fight terror is to build an inclusive country, where everybody feels a part of the country. We must recognize that Canadians have all sorts of backgrounds and come from all over the world. We will always find an example of someone who breaks the law. It does not just apply to Muslims. I remind members in the House that Timothy McVeigh was a Christian. He was a Caucasian. After he blew up the federal buildings in the United States, we did not do an inquisition into Christianity.

Every Canadian has a stake in making sure that Canada does not become a them and us society. If it became a them and us society, we would have built a society like that in the United States of America where O. J. Simpson was not going to be convicted by a black jury. There are centuries of reasons of discrimination for that happening.

Disturbing incidents have happened in this country of ours. We could look at the debates on reasonable accommodation in Quebec. Appealing to intolerance does not help. It does not help security. It did not help security when the Prime Minister of Canada while in Australia played that division card, played the card of suspicion, when he intervened in the whole issue of veiled voting to divert attention, to change the channel on in and out funding of elections by the Conservative Party.

If we want a Canada that is safe and secure, we have to make sure all of us are treated equally and that we do not differentiate between the way we might treat immigrants and the way we might treat citizens, because that would be wrong and counterproductive.

[Dean Del Mastro, Conservative, Peterborough, ON]

Mr. Speaker, notwithstanding the comments I was going to make, I wanted to begin by suggesting that I think a lot of African Americans in the United States and certainly people of African descent in this country would be offended to hear that the member thinks those people do not stand for justice and would not convict one of their own based on the evidence before them. I think that is sad and I do not believe that is why that case arrived at that decision. I find that offensive.

The member often talks about how we do not celebrate the charter. I want to go back to that and ask him if he is going to have a celebration in the year 2010 when the Bill of Rights celebrates its 50th anniversary. That of course was a Conservative document which enshrined a number of the rights that the member claims he stands for, things like freedom of speech, freedom of religion, equality rights, the right to life, liberty and security of the person. It also enshrines property rights, such as the right to enjoy one's property, which the Charter of Rights and Freedoms neglected to do.

Specifically, I want to ask the member whether he believes that in all cases, the rights of an individual should trump the rights to the safety of the entire Canadian society. That is really what this is about.

The member is saying that he believes the Charter of Rights should always apply to everyone and if we apply those rights, then therefore we could never properly protect the Canadian public through the use of security certificates, even though the Supreme Court of Canada did not say that security certificates were against the charter. The Supreme Court recommended some changes. That is what this bill seeks to implement, and with these changes, we will be able to adequately protect Canadians.

The member wants to make this about the charter. It is not about the charter at all. It is about protecting Canadians. I wish he would get it straight.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Mr. Speaker, the member raised a number of topics.

Let me start with the O.J. Simpson case. All the polls taken after the O.J. Simpson case found that blacks in the United States thought he was innocent and non-blacks thought he was guilty. The case was very much poisoned by Detective Fuhrman when he came into the court and said that there was no racism involved and that he had never seen racist activity himself.

That is what I mean. That is why we have to have an inclusive society where it is not them and us, but it is all of us together in the same boat.

The member said that the security certificates were not unconstitutional. The Supreme Court found the security certificate to be unconstitutional and it gave the government a year to fix it. I am amazed that the member would not know that very basic fact. I ask him to read the judgment. This is incredible. That is the Conservative mentality.

He talked about the Bill of Rights. I will celebrate the Bill of Rights, as I have celebrated the Charter of Rights. I might tell the hon. member that on November 13, seeing that the government was not going to celebrate it, I had a celebration in my riding of Kitchener--Waterloo. We brought in Justin Trudeau and we celebrated the Charter of Rights and Freedoms. I would suggest that the member might want to do the same.

In terms of talking about security, Benjamin Franklin, one of the signatories to the Declaration of Independence in the United States, put it very aptly when he said that those who would give up freedoms in the name of security deserve neither security nor freedom.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I want to thank the hon. member for Kitchener—Waterloo for his intervention in this debate. I want to note my respect for his work in protecting the freedoms that are granted to us through the charter. I know that has been a feature of his career in this place. I pay tribute to him for his work on that.

I also want to pay tribute to him for something that he taught me when we were members of the Standing Committee on Citizenship and Immigration, when we were dealing with the proposals around the revocation of citizenship. One thing I learned was that this was an attempt to use a lesser process, a change using the Citizenship Act to go after significant criminal activity. The example that kept coming up was how we needed the possibility of revoking citizenship to get at people who were war criminals, who had misrepresented themselves when they came to Canada and who had committed terrible war crimes, that we needed this option to be able to remove them from Canada.

The hon. member showed me how using that kind of lesser process to get at an incredibly serious criminal issue such as war crimes was inappropriate. If we were going to seriously address the problems created by war criminals, we needed to have war crimes legislation that was effective and could be used to prosecute those people here in Canada, not a lesser possibility under the Citizenship Act. That is exactly what the bill we are currently talking about does. It uses a lesser deportation immigration process to go after the significant criminal issues of terrorism, threats to national security and espionage.

I wonder if the hon. member might comment on that. Does he agree that in Bill C-3 we are using a lesser process to go after a very serious criminal matter?

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Mr. Speaker, certainly I appreciate the member's comments. We seem to be of like minds when it comes to the charter, civil liberties and human rights.

Let me say to the member that, yes, essentially we use overblown rhetoric to justify actions that really do not get at the problem the government is trying to solve. This is totally inappropriate legislation.

I reiterate that if there is someone who is a serious security threat in this country, the person should be in custody. We have other ways of getting rid of the person, instead of using something as draconian as the security certificate process, which totally ignores the legal sections of the Charter of Rights and Freedoms.

I will say to members in this chamber that I came to this country 50 years ago. My family and I tiptoed through minefields to get to freedom. We know what it means to live in a totalitarian dictatorship. We know that threats to civil liberties can never be taken lightly.

I go back to the central point I made in my presentation, that the only way we are going to be secure, and I will quote another American, George Washington, the price of security is eternal vigilance. We also have to recognize that eternal vigilance means that we defend our basic rights in the process. If we fail to do that, people can make a very good case that Osama bin Laden and his ilk did so much more damage to us because we did it to ourselves.

If we are going to fight terror, we have to fight it with a coherent plan. We are certainly not going to fight it by releasing dangerous individuals from custody to go back to the caves of Afghanistan or Pakistan or wherever. We will do so by keeping them locked up securely for the reason for which we have convicted them.

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

Mr. Speaker, I have had the pleasure of serving on the citizenship and immigration committee with the hon. member for Kitchener—Waterloo and other members in the House. I know that he is very seriously involved on this file.

He mentioned that there are six people right now under security certificates in Canada, of which five are out on bail and one is in jail. Could he give us more information on the length of stay under the security certificates? This has been shown to have been a problem in the past.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Mr. Speaker, the length of stay has been anywhere from three years to seven years depending on what point in time they were released. Five have been released and only one is in custody. The only reason this person is in custody is because he does not have family in Canada. All sorts of other people came forward to act as sureties and he could have been out on bail as well.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I am glad to have this opportunity this afternoon to debate Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act.

I want to make it very clear from the beginning that I am strongly opposed to this legislation and to the security certificate process itself. I believe that the process of security certificates should be repealed and abolished. It is a position I have taken since I have come to this place. I actually have a motion on the order paper calling for the repeal of those sections of the Immigration and Refugee Protection Act pertaining to the security certificate process.

The bill represents nothing more than a tinkering with a process that is fundamentally flawed and which has been found unconstitutional by the Supreme Court of Canada.

The security certificate process is part of Canada's Immigration and Refugee Protection Act, IRPA. It is intended to be an expedited deportation process to remove non-citizens, permanent residents, and visitors to Canada who are accused of serious criminal activities related to espionage, national security, terrorism and organized crime.

However, this is not how this legislation is being used. It is being used in serious ways not contemplated by its inclusion in the Immigration and Refugee Protection Act. This section is being used to circumvent our criminal justice system. It is being used to detain individuals without trial and without conviction and to detain them indefinitely. It is being used to deport people who may face torture or the death penalty in other countries. It is being used to circumvent the rules of evidence and to allow for the use of secret evidence, thereby denying a fair hearing. It is also being used to deny accused individuals the right to know the evidence against them and mount a defence in court.

These are all serious issues and ones that go to the fundamental questions of how our justice system operates in this country. They are, in fact, all issues that we have fought long and hard to establish in a fair and just system. They would not be part of a fair and just legal system in this country. Yet, here we have a piece of legislation that is being used in exactly those ways.

In the first session of this Parliament, the Standing Committee on Citizenship and Immigration studied the security certificate process as part of an undertaking that we made to look at both the use of immigration detention and in particular the security certificate process.

I wrote a minority report entitled “Detention Centers and Security Certificates” on behalf of the New Democratic Party to the 12th report of the Standing Committee on Citizenship and Immigration. I want to talk about some of the points that I raised in my minority report.

I talked about the fundamental violations of due process and civil liberties that must not be tolerated in a free and democratic society. I said that the security certificate process denies permanent residents and foreign nationals the protection of section 9 of the Charter of Rights and Freedoms that states: “Everyone has the right not to be arbitrarily detained or imprisoned”.

That was a fundamental starting point for my minority report. I believe the security certificate process is a fundamental violation of the Charter of Rights and Freedoms. I believe that was key to why the Supreme Court decided that it was unconstitutional.

In my minority report I also talked about how issues of terrorism, national security, espionage and organized crime should be dealt with through the use of the Criminal Code and not through a lesser immigration process. I said that if there is a problem with the Criminal Code's ability to deal with these types of crimes, then those problems with the Criminal Code should be addressed and fixed. I think this is a central point.

These are serious crimes that we are talking about. These are crimes of terrorism, crimes against the national security of Canada, crimes dealing with organized crime or espionage. These are serious criminal matters. In fact, we might be hard pressed to think of other criminal issues that are more serious than these.

Those are all issues that should be dealt with by the Criminal Code, not by an immigration deportation process. They deserve the most serious attention our justice system can give them. I believe that is through a charge under the Criminal Code of Canada.

I also talked in my minority report about how immigration detention should be used only for immigration purposes and should be of short duration immediately prior to legal deportation for violations of immigration law. If deportation is not possible alternatives to detention must be pursued immediately.

Immigration detention must not be used as a substitute for bringing charges and seeking conviction for serious criminal matters related to terrorism, violations of national security, espionage and organized crime.

I believe that IRPA deals with questions of immigration law and that anything that is included in IRPA should be a process related to immigration law. I firmly believe that when we use IRPA and its provisions to detain people who have been accused of serious crimes related to terrorism, national security, espionage, organized crime, then we are doing an end run around the Criminal Code and using a lesser process that was never intended to seriously address the accusations and allegations related to those specific criminal activities.

A lesser immigration process should not be used for serious criminal issues. I believe that is just plain wrong. Deportation should be related to a violation of immigration law and not serious criminal matters.

That it not to say that a serious criminal matter does not have an influence in deportation issues, but we should never be using the deportation features of the immigration act to deal with a criminal matter in the first instance. That is the way we have been using it in the current situation with the security certificates.

The minority report also said that given the seriousness of crimes related to terrorism, it is imperative that those accused of such crimes be able to mount an effective and full defence. This is not possible in the security certificate context where the accused and their lawyers do not know the evidence against them and are not able to test that evidence in a court of law.

I believe that is an absolutely fundamental criteria of dealing with a fair and just criminal justice system, and to circumvent that and to upset that process goes against a fundamental of our society that we have worked long and hard over many centuries in fact to develop and fine tune. There is no excuse for circumventing those primary components of that criminal justice system.

My minority report also said that Canada must never deport to torture and must be in full compliance with the United Nations conventions against torture and other cruel or inhuman or degrading treatment or punishment. Evidence obtained by torture must never be admissible in a Canadian court or in any legal or immigration process.

Unfortunately, currently in the security certificate process, and I believe in the proposals that are before us, we do not have those assurances. We do not have the ability to test the evidence or the allegations to determine where those allegations came from, where that information was obtained, and how it was obtained. We know that any information obtained by torture is utterly unreliable, that people who are being tortured will say anything to save themselves and that information obtained in that kind of process should never be admissible in any kind of legal process in this country.

We need to make sure that that kind of guarantee is part of any legal process that we are considering. I do not believe that the current legislation or the proposals before us offer us that kind of assurance.

Canada must also ensure, I said in the minority report, that those who plot terrorist activities are tried, convicted and incarcerated, and not merely foisted on another jurisdiction through deportation. I think this is a very serious problem with the security certificate process.

What it says is, “We aren't going to convict you of this serious crime here in Canada. We're just going to try to get you out of the country, get you away from Canada to somehow protect us from you but to foist you on some other jurisdiction, to allow you to go unpunished for what you allegedly conspired here in Canada”. I think that is an absolute derogation of our responsibility as world citizens. It is a derogation of our responsibility to Canadians that people, who participate in such serious criminal activity as terrorists and as threats to national security, go unpunished somehow.

I just think that removing them without ever having charged them or convicted them of those serious crimes is totally counter-intuitive. Why would we allow them to get away with that and get them out of our jurisdiction where they might never be tried or punished for that? If we as a wealthy country do not have the resources to prove these serious allegations, why would we foist that onto another jurisdiction that may not have the resources or abilities that we have in this country to do that? It just does not make sense to do that. That is another reason why I believe that this process is fundamentally flawed.

As part of the minority report that I wrote to the Standing Committee on Citizenship and Immigration report on security certificates, I made some very specific recommendations, and I want to just talk about them as part of this debate.

One of the recommendations I made was that the use of security certificates be abolished and that sections 9 and 76 to 87 of the Immigration and Refugee Protection Act be repealed immediately.

I still fundamentally argue that is the route that we should be going in this country. We should not be using this secondary and lessor process to prosecute very serious criminal matters. If there are problems with our Criminal Code, then we should be addressing those problems and fixing that legislation.

My second recommendation was that evidence obtained by torture and provided by governments or police and intelligence agencies that practise torture should not be admissible in a Canadian court of law, or in any criminal or legal process or hearing, or in any immigration or refugee process or hearing. I think that is an absolutely fundamental requirement.

I have already spoken about how fundamentally unreliable evidence obtained by torture is and how fundamentally immoral it is to even consider condoning information obtained under those kinds of circumstances. Canada should be doing nothing that condones or would allow any other country or any other intelligence-gathering organization to use such tactics against anyone. I believe that any legislation that we debate in this place should make that absolutely clear.

The third recommendation that I made as part of that minority report was that immigration detention must only be used as a short term measure immediately prior to removal related to violations of immigration law. So, again, IRPA should be about immigration law. It should not be about a backdoor to dealing in a very inappropriate way with serious criminal issues, such as terrorism or threats to national security.

As part of my minority report I supported several of the majority recommendations that the committee report did.

One of the recommendations the majority put forward was that charges should be laid under the Criminal Code against permanent residents or foreign nationals who are suspected of participating in, contributing to or facilitating terrorist activities. I think the committee said that a preference should always exist for the use of the Criminal Code. I would go stronger but I did support that recommendation.

Another recommendation that the majority report made was that there should be no removal of permanent residents or foreign nationals to their country of origin or habitual residence if there are reasonable grounds to believe that they would be at risk of torture or death, or face the risk of cruel and unreasonable treatment or punishment. I think that is a very significant one.

We have seen already, just in recent weeks, that the current government may be willing to compromise that longstanding Canadian commitment of not deporting someone to face the death penalty. It may be chipping away at Canada's longstanding opposition to the death penalty in terms of the Canadian who is on death row in the United States and where we are not seeking to have that death penalty commuted. I think that this goes hand in hand with this kind of legislation that we are talking about as well.

Furthermore, there was another majority recommendation that police and intelligence services have appropriate resources to investigate allegations of criminal activities related to security, terrorism, espionage and organized crime, and to pursue appropriate charges under the Criminal Code.

I happen to believe these crimes are so serious that we should have every resource available to our intelligence and police agencies to have an effective prosecution of individuals who have engaged in that kind of activity.

I strongly supported this and proposed, during the discussions in committee, that this needed to be an important feature of the report. There is no excuse for being soft on those kinds of serious crimes. We need to pursue those allegations vigorously, but do it in the context of respect for our criminal justice system and without compromising the criminal justice system.

I should note that a similar minority report on the security certificate process was made by the member for Windsor—Tecumseh, the NDP justice critic, to the report of the Standing Committee on Public Safety and National Security's subcommittee on the review of the Anti-Terrorism Act. The report was entitled, “Rights, Limits, Security: A Comprehensive Review of the Anti-terrorism Act and Related Issues”.

A major feature of the legislation now before us in Bill C-3 is to add a special advocate to the process, a court appointed lawyer who would have access to the evidence and act in the interest of the accused, which is the way this is described. I believe the special advocate process or office is also a flawed process, a flawed institution. We have seen that there have been significant problems with the same kind of process of special advocates in other jurisdictions.

A special advocate from the United Kingdom, Ian Macdonald, has been very outspoken on the problems of the special advocate in that jurisdiction. I want to quote something he said in relation to his role as a special advocate. He stated:

My role has been altered to provide a false legitimacy to indefinite detention without knowledge of the accusations being made and without any kind of criminal charge or trial.

This is a very serious response from someone who has worked inside exactly the kind of system that is contemplated by Bill C-3.

Bill C-3 limits the ability of the special advocate to communicate with the accused about the evidence that he or she has seen. That is a huge flaw. There is an inability to test the evidence, a key aspect of our criminal justice process. There is the serious problem of turning allegations into evidence, which is a key part of a criminal trial in our country as part of our system and is absent in this process, a flaw also in the U.K. that was raised by Mr. Macdonald. It continues to be a flaw in this legislation.

Mr. Macdonald said to a parliamentary committee in the U.K. in 2005:

—you have a whole lot of mass of information and assessments without there ever being any need to make an effort to turn any of that into evidence. I think that has within it an inherent risk that you end up with quite shoddy intelligence and misleading intelligence.

We also need to test information presented in court by cross-examination and the calling of other witnesses, all of which are denied by this process.

In fact, Mr. Macdonald summed up his role as a special advocate by saying that he was called to provide “a fig leaf of respectability and legitimacy to a process which I found odious”. That is a very serious condemnation of that process.

This past July, the U.K. Parliamentary Joint Committee on Human Rights issued a strongly worded report, describing the U.K. special advocate system as “Kafkaesque or like the Star Chamber”, nothing that we would want to emulate in this country.

If the government had been serious about the special advocate process, it would have taken very seriously a report last summer in our country by Lorne Waldman and Craig Forcese on the security certificate process. They made a very detailed set of recommendations about how that process might be used. In fact, they said that the Security Intelligence Review Committee, or SIRC process, might have more to recommend it than the U.K. special advocate process, which the government seems to have emulated.

I do not think the government has made a serious attempt to address the problems of the security certificate process because it did not take the recommendations of Messrs. Waldman and Forcese very seriously when coming up with this legislation.

Six people are still subject to security certificates in Canada. One is incarcerated still at the Kingston Immigration Holding Centre, Hassan Almrei, and five others, Adil Charkaoui, Mohamed Harkat, Mahmoud Jaballah, Mohammad Mahjoub and Manickavasagam Suresh, are all subject to very serious conditions of release related to the security certificate process. In my opinion, for the reasons I have discussed, none of this is justified.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Mr. Speaker, the hon. member and I have had the opportunity to meet with the people who are held under security certificates. We also visited the Kingston Immigration Holding Centre. In talking with them, I did not detect any terrorist. All the people involved are very staunch defenders. It is a real crime that these people cannot clear their name or go to court and have the government prove its case. Rather they are cast under this shadow. That is one comment.

Could the member elaborate on some of the shortcomings of the people who are held in the detention facility in Kingston and does he thinks it is appropriate to have one person essentially in solitary confinement?

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I have very serious reservations about the continuing incarceration of Hassan Almrei at the Kingston Immigration Holding Centre, that special maximum security prison, within the walls of Millhaven maximum security prison which was built to house security certificate detainees. Mr. Almrei is the only prisoner left there and that raises very serious issues of solitary confinement.

It is not the kind of punitive solitary confinement that is undertaken for disciplinary action against a prisoner who has acted out in the correctional system. However, this system where there is only one person in prison in an institution is utterly inappropriate. It is something that should not be happening.

I know the member for Kitchener—Waterloo pointed this out earlier. I believe that Mr. Almrei remains the only prisoner in Kingston because he has no family members in Canada who can act as his jailers on behalf of the Government of Canada and the people of Canada.

That is what happened to the other five people who are out. They are out under such strict conditions of release that essentially their wives, in all cases, have been asked to be their jailers, to keep contact with them 24 hours a day, to be totally responsible for them on behalf of the Canadian people. That is in addition to ankle bracelets, security cameras and details of CBSA employees who follow them constantly on the very limited times they are allowed to leave their residences.

These kinds of conditions are extremely draconian and put incredible pressures on the relationships and the families of those people. Children are living under these kinds of circumstances in Canada, which is utterly inappropriate. Children who are Canadian citizens are subject to those kinds of conditions of house arrest because of the actions of their parents who have never been proven to be a threat against Canada. They have never been charged or convicted of any crime.

I have been very clear with Hassan Almrei and some of the others. I have said to Mr. Almrei in the number of times I have met with him personally at Kingston and when I talk to him on the phone that I have no way of knowing if he is the worst guy on the planet or somebody who is completely innocent and caught up in something in which he was not directly involved.

I also believe that no one else in the country knows that either. He has never been charged or convicted of any crime here, certainly any serious crime here. Until that is done, I will maintain that I do not know. All Mr. Almrei has ever said is if he has done those bad things, charge him so he can have a fair chance at proving him innocence and if he is not proven innocent, then he should do his time for serious crimes of this nature.

He is very clear about that. His supporters are very clear about that. I wish we in this place could be as clear about the importance of upholding our criminal justice system in this situation. When we compromise it for one person who we may have serious reservations about, we compromise our system completely.

As Representative Barbara Lee in the United States said when she voted against the American involvement in the war in Iraq, “Let's not become the evil that we so clearly deplore”. I believe this is one way we do that in our circumstances here in Canada.

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

Mr. Speaker, I listened with intent to the member for Burnaby—Douglas. He served on the committee when I was a member of it, from 2004-06, and we dealt with this issue of security certificates at that time.

We heard from many witnesses at the time. The committee travelled across Canada, discussing this issue and other issues of citizenship and immigration. We could not believe there would be people in Canada who were not charged and imprisoned. They were simply held without charges for unspecified periods of time.

We also had some recommendations in the committee report to look at these people and have them either charged and processed through the criminal court or released and returned to a country that was safe, or look at a third country alternative.

Could the member explain to us how his constituents view this, not charging anyone and detaining them for unspecified periods of time serves democracy today?

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, whenever I talk with people about what happens under the security certificate process, their first reaction is shock and horror that something such as this could happen in Canada, that people could be detained five, six or seven years, or subject to house arrest for that period of time, never having been charged or convicted of a serious crime in Canada.

I think everyone who hears about this is outraged that this kind of process could be used in Canada. It is high time we focused attention on what happens in this process.

There is no excuse for this. It has not been shown that we cannot deal with these serious crimes under the Criminal Code. We have not had unsuccessful prosecutions. In fact, we have Canadian citizens now being charged under the Criminal Code for similar serious activities and that process is going through the court system. We have not circumvented the whole process to deal with them. We should not be doing that to deal with people who have been granted permanent resident status in our country. They are entitled to the same protections that I receive as a Canadian citizen.

I do not believe there is any appetite among Canadians for upsetting that kind of legal process, upsetting our criminal justice system in the name of some abstract idea of Canadian security, when it has not been proven that these people are any threat to Canadian security at all.

We need to prove that and we need to prove it in a criminal court of law. In this case we could then take the serious action against any individual who has been convicted of such crime and for which they deserve. Until that time, there is no excuse for the indefinite detention, which goes on for years, for limitations on their freedom, which go on for years, for limitations on the freedom of their family, which go on for years on end. It is completely inappropriate and not seen as something that is the Canadian way and not representative of Canadian values.

Some people will say that it has only been used 28 times since it was set up and there are only six people now under a security certificate. In my opinion that is six people too many when we are dealing with such a fundamental disruption of our freedoms and that of our criminal justice system.

There is absolutely no excuse. There has been no proof that such a process is necessary. Until that time, I will continue to add my voice. I am very proud of the New Democrats who will stand and very clearly vote against the legislation. It does not meet our standards in terms of upholding basic values of the importance of our criminal justice system, basic values of human rights, which we have fought for time and time again. We cannot compromise those without a fight.

In this corner of the House we are prepared to mount that fight and speak clearly and passionately about the importance of the values of human rights to Canada, to Canadians and to people around the world. If we make these kinds of compromises, how can we hold others to account for the compromises they constantly make when it comes to human rights and the just process?

[The Acting Speaker, Conservative, Royal Galipeau]

It is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Richmond Hill, Afghanistan; the hon. member for West Nova, Airbus.

[Judy Sgro, Liberal, York West, ON]

Mr. Speaker, I am pleased to have the opportunity today to speak to Bill C-3, clearly a piece of legislation that is extremely important to all of us as parliamentarians but also very important for Canada.

It is an act to amend the Immigration and Refugee Protection Act, certificates and special advocates. Listening to my colleague from Burnaby and knowing how passionately he feels about this, I recognize and recall from some time past his opposition to these kinds of things. I must say I applaud his commitment but look at it from a very different point of view.

This bill that is before us will amend the Immigration and Refugee Protection Act to create the role of special advocate.

The very core role of the special advocate would be to protect the interests of the subject of a security certificate by challenging the public safety minister's claim to the confidentiality of information, as well as its relevance and the weight of the evidence, something that is important. We have been clearly pointing out that there were areas in the previous legislation that needed to be improved and this is a good beginning.

The special advocate may also make written and oral submissions to the court and cross-examine government witnesses. These responsibilities would have to be performed within closed court proceedings. It is quite similar to the British system, as my colleague from Burnaby pointed out.

The special advocate's responsibility though is to protect individuals interests in proceedings where evidence is heard in the absence of the public, and of the persons and their counsel. Clearly, these are areas of new jurisdiction for our country, but areas that have been necessary for us to go to make sure that Canadians in Canada are protected.

The bill also provides that any individuals detained under the certificate regime must have their detention reviewed by a judge of the Federal Court within 48 hours of the detention beginning. That is also a very important aspect of the legislation, to ensure that the adequate evidence is also there, and people are not just randomly held, as some people would like us to believe.

Any persons who are still detained six months after the conclusion of the first review may apply for another review of the very reasons for their continued detention. It is another avenue where it is not just a closed door. They will have an opportunity to provide evidence and to defend themselves.

The bill permits a challenge to the Federal Court of Appeal of reasonableness, and I think that is a key word throughout this legislation, of a security certificate, or the results of a review of a person's detention, or the release, should that happen, under conditions.

Again, as my colleague from Burnaby pointed out, some of those conditions may not be the best, but we are always having to keep in mind the safety of our country and security of Canadians, providing the appeal judge certifies that a serious question of general importance is involved.

It also permits a peace officer to arrest and detain persons who are subject to a security certificate if the officer has reasonable grounds to believe that the persons have contravened or are about to contravene their conditions of release. That is a very important part of this legislation as well because people will be given the opportunity, under certain conditions, to have a degree of freedom, but if for some reason or another a police officer or someone else has reason to believe that they may flee, then they may need take whatever steps are necessary to ensure that the individuals in question are where they needed to be.

Bill C-3 also 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.

Just to give some background to the many Canadians who are watching this debate, or we would like to think are watching this debate, the Supreme Court of Canada ruled unanimously on February 23 that the process for determining the reasonableness of security certificates violates section 7 of the Charter of Rights and Freedoms, hence the reason that we are currently dealing with this legislation.

I always believe that the more time we take to review something the better the legislation will come out and clearly the Supreme Court has point out some areas that needed to be looked at and reviewed. I believe, at the end of the day, it will only make it that much better, that much stronger, and that much more effective piece of legislation.

We also know that none of us want to see innocent people have their rights abused in Canada. I think that by the time the committee finishes studying the legislation, when it comes back to the House, it will be that much more effective, keeping in mind some of the comments that some of my colleagues have raised about their concerns about abuse of the process.

The Supreme Court was quite clear. The government does require a mechanism to remove individuals from Canada who pose a threat to national security. That clearly was a large part of that legislation that was introduced initially, that there did need to be some sort of mechanism so that people could be removed. I believe Canadians want that ability to do that.

However, the system as it is currently must be reformed. The court had particular concerns with respect to 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.

I think we can say that it was not just the court that had concerns about that particular area of it. It certainly goes against a lot of things that we believe in in Canada and keeping the secrecy issue is a very difficult thing.

It is all about a balance of being able to protect our country and to respect our security issues. At the same time we cannot disregard the fact that we have a charter in our country and we have human rights that we respect. We want to make sure that things are done properly and that we do not have to hide in shame because we did not do something properly when it comes to something as important as international or security issues.

We on this side of the House, as the official opposition, welcomed the decision of the Supreme Court on the security certificates in February which provided Parliament a year to address the issue. That year will soon be up and it is only now starting to be dealt with.

It is very unfortunate that the government took so long to come forward with replacement legislation that Parliament now may be rushed to ensure that legislation is in place before the one year timeline expires in February 2008. Add on to that, this is an important piece of legislation. We dealt with it before under strenuous difficult times. It is important that we do this right and that we make sure that we are going to maintain the safety our country, as well as not abusing human rights and stepping on other people's rights.

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 also found that the non-disclosure of evidence at certificate hearings is a significant infringement on the rights of the accused. I believe most Canadians and most of us as parliamentarians will have to admit that we had some concerns in that very area. Finding the right balance is the challenge.

In other words, the government must choose a less intrusive alternative, notably the use of a special advocate to act on behalf of the named persons while still protecting Canada's national security. I go back to the issue of a balance and how that important that balance is for all of us.

The immigration security certificate procedure still allows suspected terrorists as well as refugees and landed immigrants accused of human rights violations or serious criminality to be detained and deported from Canada. The safety of Canadians and Canada is a priority I know for all of us as parliamentarians.

The Liberal party will support the bill at second reading, voting in favour of sending the bill to committee for an in-depth study. We will take the time to study the new bill, to make the necessary improvements at the committee stage, and hopefully we will still be able to not be too far off from the timeline that we have been given to get this done.

It will mean a lot of work by a lot of parliamentarians in the House very quickly in order to ensure that we are following all of the obligations that Canada has when it comes to fighting terrorism. It is something that is extremely important for all of us and we want to ensure that we have covered all the bases that are necessary.

We do not want to have legislation that does not meet all of the requirements and that again would be challenged in the Supreme Court and possibly struck down. I think as we move forward to committee now many of us will work on this legislation to ensure that there is that balance that all Canadians will want to see.

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

Mr. Speaker, I heard the member eloquently explain the situation the way it is right now and what she is really looking at. It sounds like we are in favour of taking this bill to committee so we can further review it.

My concern lies with the time we have as of the ruling. The Supreme Court ruled in February 2007 and February 23, 2008 comes very quickly when we have a Christmas break and return near the end of January. In the hon. member's view, will we have substantial time to look at all the alternatives, amend the legislation, and bring it back for the final reading in the House?

[Judy Sgro, Liberal, York West, ON]

Mr. Speaker, I know my colleague has a huge amount of interest in this issue. To answer his question, it will be difficult. There is a very short timeline. Possibly, parliamentarians will have to work over January if we are to meet that February 2008 date. However, I suspect it will not be the first time we have not met a date requirement and we will have to ask for an extension.

We should remember that while we are moving forward in all of this, many people around the world are watching Canada and how we will deal with the legislation. Will we make sure it is respectful of human rights, respectful of the charter and respectful of all of the things that matter so much to us as Canadians?

Listening to the concerns of my colleague from Burnaby, and I am sure there are concerns on all sides of the House, we are uncomfortable with the previous legislation. We are probably still uncomfortable with Bill C-3, while recognizing that fighting terrorism is something we all have to do. The government has to have the tools necessary to take whatever action is necessary to ensure we are safe as a country and that we are working with other countries around the world to prevent the continuation of terrorism.

It is critically important that we get the bill to committee. We hope this week it will go through and the committee can start work next week. Knowing the way parliamentarians feel, I expect they will put a lot of hours into looking at this on all sides of the discussions and arguments that no doubt will be there on behalf of many individuals.

Where we are going with it is an improvement to the process. A special advocate will be a good approach. We need to get the bill to committee, work on it, and get it back into the House to be approved. The sooner we do that the better for Canada.

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, I notice that in Bill C-3, one of the compromises, I suppose we could say, made by the Conservative government when it introduced the bill is that there will be special advocates as part of the security certificate process. It claims this will be enough to ensure that someone is representing the rights and the concerns of the accused and that at least the special advocate will be told the nature of the charges and why the person is being detained.

However, my colleague from Burnaby—Douglas points out that in the U.K. and New Zealand, where they do have special advocates for people being held, that it has been woefully inadequate. In the U.K., a special advocate in fact has resigned in protest recently, citing that he felt that his office was being used as an excuse to detain people unfairly. In other words, the special advocate did start advocating on behalf of the people detained and resigned.

Does the party of the hon. member agree that the special advocate is not an adequate compromise to ensure the rights of the detainees are being represented?

[Judy Sgro, Liberal, York West, ON]

Mr. Speaker, I guess time will tell. I would like to think that we would look at and learn from the U.K. model and the New Zealand model. I would like to think that we would make sure that in one way or the other the rights of the individuals being detained are paramount.

This is not a question of government interference. There should be an arm's-length ability for a special advocate to have full access to whatever evidence is put forward to detain an individual. If the advocate does not feel that it meets the proper requirements, it should not just be an opportunity to detain somebody and throw away the key because we have questions about whether or not they are a threat to the country.

I would only assume that these things are not done lightly. I can assure my colleague, from some previous experience in life, that security certificates are not things that we sign off on easily. There is a huge amount of responsibility there.

I would hope that we would learn from the U.K. and New Zealand models to make sure that the role of special advocate proposed in this legislation includes the tools and the ability and the arm's-length firmness to be able to stand up to the government or to parliamentarians as a whole and say that there is not enough evidence and an individual's rights are being abused. I expect that we would all make human rights paramount. I am sure that we do not want our rights abused, nor should we be abusing anyone else's.

I would hope that we learn from the U.K. and New Zealand models and make our special advocate, as a result of this legislation, even better and that we continue to look at it and find ways to strengthen this legislation.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Mr. Speaker, there were a number of people in the Toronto locale, 18 in total, I believe, who were charged with terrorism. They were very sensational charges. The government did a lot to manage the news on them. Those folks were not charged under the security certificate section, but they are being charged with terrorist activities and under the Criminal Code.

Since this incident happened in the member's geographic district of the GTA, could she tell us anything about these 18 people?

[Judy Sgro, Liberal, York West, ON]

Mr. Speaker, police in our major cities have a huge responsibility to do the right thing when they are dealing with crime and various other activities. When they have concerns about a particular group of people, they often will spend up to 18 months working on that group. Just because people are affiliated with a group, it does not mean they are necessarily part of that group or that they are terrorists.

The police have a difficult job. We have a difficult job. It is a question of finding balance and respecting an individual's rights.

Some of those people were detained and subsequently released, but I think that once people have been detained and have had that label put on them, it is very difficult to have it removed. I think that stigma would be with them forever. I think it is always a question of being cautious before laying charges and of making sure we have all the information we need.

As for Bill C-3, at committee we will have a chance to find out what we are talking about as far as reasons for detaining someone and taking away his or her liberties are concerned. Maybe we need to specify more clearly the reasons why someone should be detained. These are the kinds of things that we can talk about at committee to make sure that this legislation is vented properly and that it achieves what we want it to achieve, which is to ensure that we are all fighting terrorism together, that Canada remains a safe place, and that we are doing our part in the fight against terrorism around the world.

[Claude Bachand, Bloc, Saint-Jean, QC]

Mr. Speaker, I am pleased to speak today on Bill C-3. This is an interesting bill, because it highlights basic rights and sometimes pits them against each other. Rights come up against security, an increasingly important issue in Canada and elsewhere. When people can be deprived of their freedom and deported, we must always ask ourselves whether we are going too far at times. Of course, we live under the rule of law, in a free and democratic society.

Are these sorts of security certificates compatible with the concepts of a free and democratic society, with the rule of law, with the charters? Are they compatible? Having examined the bill, we support it, provided there is no abuse. We have seen that there has been no abuse to date. Since the terrorist attacks, only five or six certificates have been issued. Since 1991, 27 security certificates have been issued. No can say that Canada is going overboard. No one can say that Canada is issuing security certificates left and right. Deciding to deport someone is a serious matter, and I believe that the investigations that are conducted ensure that we do not make mistakes about these deportations.

We are in favour of security certificates. However, I think the bill can be improved and it is important that it is. In my opinion, it is the role of the opposition to ensure that a bill is perfectly suited to the situation. Not only must there be no mistakes, but these people need help ensuring that their basic rights of freedom and self-defence are defended.

The use of a security certificate is not that complicated and it is a rather quick measure. The Minister of Citizenship and Immigration and the Minister of Public Safety have to sign it. Then the whole matter is sent to the court for evaluation. When the court is considering a security certificate, it can hold in camera hearings because some of the information might compromise the security of Canada or endanger certain individuals.

However, the problem is that the security certificate is often issued in absentia. It is up to the court to decide whether or not the person—whom we could think of as the accused—will be issued a security certificate in absentia. In our opinion, some things need to be changed in order to provide not a full defence, but at least the assurance that there will not be any major assaults on democracy and the right to defend oneself.

There is another problem. Once the Federal Court agrees to issue a security certificate for an individual, there is no appeal process. Not only does the court often rule in the absence of the person concerned, but what is more, there is no appeal process. I will elaborate on this later because this is one area where we have some reservations about the whole issue of security certificates.

Finally, as soon as the Federal Court confirms that the security certificate can be issued, the person is automatically extradited. Again, we must remember that this specifically applies to permanent residents and foreign nationals. Canadian citizens could never be in the same boat because other types of rights apply to Canadian citizens.

There were some exceptions in the various cases heard by the courts, such as the fact that an individual cannot be extradited if it is certain that he will be tortured or that his life will be in danger in the country to which he is being extradited.

I think it is important to highlight the current procedure used with respect to security certificates. I would like to explain some amendments we are proposing.

Earlier, my colleague spoke about special advocates. Great Britain and other places have experience using special advocates. A special advocate is not a defence lawyer; it is someone who will guide the accused through the process and who will show him how to defend himself: are the facts true, is the evidence well-founded?

I think this support is important. It is something that should be in the law. An individual cannot be told that the Minister of Citizenship and Immigration and the Minister of Public Safety have just signed a security certificate concerning him, that it is being sent to the court, where the judge, sometimes without consulting the accused, decides it is over and he is being sent away, without any appeal process. This seems a bit quick and hasty.

We are making suggestions to ensure that there will be no mistakes. Even if we conceded that security certificates were not being abused, the bill should be fine-tuned.

We believe it is important to allow an advocate to defend the rights of an individual who is facing deportation. We also believe it is important to disclose all the evidence to this special advocate. To date, all the government has had to provide is a summary of the evidence, but we would like the full evidence to be disclosed.

We would not have a problem with that. Moreover, in the agencies that control CSIS and the RCMP, lawyers are also bound by solicitor-client privilege. I therefore do not see why we should not allow special advocates bound by solicitor-client privilege to have the full evidence, which would make them better able to defend the accused person facing extradition.

In our opinion, this is something the government should do. I hope that my opposition colleagues will support this approach, so that a full defence is possible.

The right to appeal poses another problem. Something seems to me to be a bit excessive. I am not questioning the Federal Court judge's suitability, integrity, IQ or anything else, but legal errors can occur. No one is infallible. It seems a bit much that one person can make this decision and that the decision cannot be appealed. We are playing with an individual's freedom here. We are sending him back to a country, refusing him access to Canada and telling him that that is the judge's decision and that it is final. It seems to me that we have proof that this does not always work.

With regard to the people who are in charge of immigration, I realized the other day that there is still no process for appealing an immigration judge's decision. There is also no appeal process for people who are told that they can no longer stay in Canada and must leave. And yet, such a process would protect against a potential unfortunate mistake. In the case of people who are to be extradited, it would be one mistake too many. The appeal process is important to us.

There is also another aspect. We would really like to put an end to indefinite detention. This also goes too far. People in such situations feel very insecure. Of course, serious suspicions may have been raised against them, but that does not mean it has to turn into long-term torture, either.

Someone is imprisoned and told that no one knows how long they will be there, and that evidence is being gathered. Delays can go on and on. Thus, we have certain reservations about indefinite detentions. However, no one yet seems to know if a definite period will be determined. In any case, we think the mere idea of indefinite timeframes for someone who is the subject of a security certificate is going too far. We hope our colleagues will follow our lead when we propose amendments to the legislation.

Furthermore, another serious issue for us is arrest without a warrant. I described the current procedure earlier today. Only the Minister of Citizenship and Immigration and the Minister of Public Safety need to sign. Next, it goes directly to court and the arrest is made without a warrant. However, the very important concept of the rule of law is at stake here. Normally, when someone is put in prison, there must be a warrant against that individual. The same thing should go for these people.

Obviously, there is some secrecy surrounding security certificates. Evidence cannot be made public if there are allegations of terrorist plots, for example. However, I think that a judge could examine the case before arresting the individual to ensure that there is sufficient evidence to justify the arrest and issue the warrant. It is not that complicated. If injunctions can be obtained within a few hours, I do not see why that process cannot apply to a case involving a security certificate. That is another thing we will propose.

We also want to change the burden of proof to ensure that the security certificate will remain in place only if the court is certain beyond a shadow of a doubt that the individual is a threat. The current standard is reasonable doubt. We have to go a little farther. Often, person's life is at stake, so it should be beyond a shadow of a doubt, which is more rigorous than deciding on the basis of reasonable doubt. We will probably make amendments at the report stage to that effect.

Having listened carefully to oral question period over the last two weeks, we feel that the bill must definitely make provisions that prohibit the extradition or deportation of individuals when we know that they will be tortured if sent to a country where torture is practised. Individuals could be incarcerated here in Canada. There are many solutions but we can definitely not permit the deportation of individuals if we are certain that they will be tortured or even killed. In some countries, under certain dictatorships, people do not last very long. These dictatorships often do not function according to the rule of law. A few people will decide the future of this individual who arrives at the airport.

Therefore it is important to examine the entire file and to ensure that no mistakes are made that could lead to the death or torture of individuals. I hope that my colleagues will acknowledge the Bloc Québécois for their contribution to this matter. Our colleague responsible for this file is a well-known lawyer. He has thought much about these matters. He is an excellent colleague who was formerly a minister of justice in Quebec. I always take what he has to say very seriously. Just now, he was explaining all of this in detail. He wanted me to speak and convinced me.

I will go back to my initial comments. We live in a free and democratic society. We live under the rule of law and we have charters. When we bend these rules, no matter how, we must be careful. Therefore, we are being reasonable and, above all, responsible. We are able to live in a free and democratic society under the rule of law.

We must ensure that when the House is considering bills, that they are not altered too much and that they do not become flawed.

Thank you for your attention. I will take questions.

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, in listening to my colleague from the Bloc Québécois, it would appear that the NDP is the only party in the House that is opposing Bill C-3 at this stage. The others seem willing at least to allow it to go to committee to chip away at anything they disagree with. I would like my colleague to share some of his rationale with us.

I am still struck by the controversial parts of Bill C-3 where, even after the old process was struck down by the courts, the current security certificate process as contemplated by Bill C-3 would still include secret hearings, unlimited detention without charge or conviction, detention without knowing the evidence against oneself, which offends natural justice in just about every developed nation that I know, and the lack of an appeal process.

Those are pretty compelling reasons to oppose the bill, I would think. My colleague from the Bloc, who is a reasonable and rational man and whose opinion I have come to respect over the years, does not seem troubled enough by those problems with the bill to vote against the bill. I would ask him to explain by what reasoning he could toss reason out the window and support Bill C-3.

[Claude Bachand, Bloc, Saint-Jean, QC]

Mr. Speaker, basically, the logic is simple. Earlier, I said that we can accept security certificates. It is a fact that sleeper cells are stationed in many countries waiting to commit terrorist attacks. We have to act on that at some point.

My colleague raised the same point I did, but the NDP's tactics are a little different. We accept the idea of security certificates, but we want to amend the bill itself. We want the opportunity to make those amendments in the standing committee. All of the points he raised will be discussed in the standing committee, so that we can produce a law that will both ensure public safety and protect the accused.

We are not happy about the absence of an appeal process, the fact that hearings can be held without the accused, and the fact that there are no special advocates to represent the accused. The member emphasized all of these things that we do not agree with.

Nevertheless, we want to pass this bill at second reading because we support it in principle. Then we want to take the time to thoroughly examine the controversial elements and make amendments to improve the bill. That will probably happen in the Standing Committee on Justice and Human Rights, in the Standing Committee on Public Safety and National Security, or in the Standing Committee on Citizenship and Immigration.

As such, the Bloc's position is a responsible one.

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

Mr. Speaker, I heard the member for Saint-Jean speak to Bill C-3 and I also heard the question posed by the member from the NDP.

I am led to believe that the NDP believes that amendments cannot be made at a committee meeting. I am very surprised because I know the member has participated in making amendments to bills at other committees. I am sure that he understands the process, that we are able to make amendments. The help of the opposition parties is needed in order to send this bill to committee so we can debate and fix the bill. We all agree that this bill is flawed and it needs a lot of help, especially the help of the NDP.

The member for Saint-Jean mentioned in his speech that he would not like to have people deported to some countries. Maybe I could jog his memory about the safe third country provision. If there is a difficulty in their country of origin, the country from where they came, we will send them to a country that is safe and that is not their country of origin. However, I also share the belief that people should not be deported to a country where they would be prosecuted, imprisoned or lose their life.

Perhaps the member could expand on this as well as the idea of amending the bill at committee stage.

[Claude Bachand, Bloc, Saint-Jean, QC]

Mr. Speaker, if it were up to me, I would allow my colleague from the NDP to respond, but I will instead.

I understand nonetheless that at a certain point, a political party can adopt positions that are inconsistent with or different than ours. This is a parliamentary democracy. If the NDP has such a big problem with this, then they are entitled to vote against the bill. However, we have taken a different approach and the hon. member is absolutely right.

In standing committee, at report stage, we often make amendments. If they are adopted in committee, they are sent for subsequent reading in the House. That is how the bill progresses and in my opinion, this is a good system.

As far as extraditions are concerned, or deportations to countries that practice torture, we have a typical and troubling example in Mr. Arar's case. Obviously if we are holding a Syrian foreign national in Canada and we decide they have to have a security certificate, I would have a problem deporting that person to Syria. I would have a big problem with that. Could we deport that person to a friendlier country? I am not sure whether that would get rid of the problem, or how a country could say it will welcome him.

I believe that the solution is to have prison terms served here, in Canada. However, we must ensure, before deporting an individual, that they will not be a victim of torture or run the risk of dying in the country to which they are being deported. Serving prison terms in Canada seems to be a solution that could be envisaged.

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

Mr. Speaker, I welcome the opportunity to speak to this important bill. As I was preparing for this a short time ago in my office, I was giving thought to the fact that when Canadians send us here and we gather in the House, one of the most fundamental things Canadians expect of us is for us to protect their freedoms, to ensure their lives are lived out in safety and dignity.

We can understand to some extent, following 9/11 the reactions that came out of our neighbour to the south. It was certainly a significant attack with horrendous outcomes. The reaction in the early days was something perhaps today in hindsight might not have moved as far. I suspect that even in this place some members would be concerned about the movements that took place here.

Today in the House, during question period, we heard the Minister of Justice talk about the fact that he would not apply for clemency in the case of a Canadian on death row in the U.S. Even though we had a debate previously in the House on the issue, we decided that it was not the place of government to be a party to the killing of a citizen.

When we look back a little and think in terms of the life of the minority government, we see times and places where it has adopted positions or has refused to follow the will of the House, and I am very concerned about that. We can see an almost Hollywood western “hang 'em high” attitude.

I stress the fact that we do have a minority government and the place for action is in the House, but with the votes of every member in the House. When we look at Bill C-3, from the perspective of the NDP, the bill has major flaws in the sense that it is an attempt to tinker with the problem when the certificates were overruled by the Supreme Court. We do not believe the government has gone anywhere near what needs to be done to address the concern of the Supreme Court.

Many Canadians are concerned about the erosion of rights in Canada, as I alluded to before, in a fashion similar to the erosion of rights that has taken place in the United States. They see Bill C-3 as undermining the balance between being free and being secure.

Security certificates fail in two significant ways in our opinion. First, they allow for detention and deportation of those suspected of terrorist activity, but fail to ensure suspected terrorists are prosecuted and if found guilty jailed for their crimes. We have a Criminal Code that will take care of such matters.

As a result though, if we assume here is some form of terrorist activity in Canada, then to remove suspects, without due process in our courts, means simply we have no guarantee that the suspected terrorist removed from Canada under a security certificate will cease to be a threat.

There also is a fundamental inequity in the law when we consider that security certificates can only be used to detain and deport permanent residents and foreign nationals, but if Canadians are accused of terrorism, they will be arrested, charged and punished under the Criminal Code of Canada.

Part of the Criminal Code of Canada, the due process, is intended to protect the rights and security of Canadians. Part of that is the ability for Canadians to look the person in the eye, their accuser, to see the evidence against that person. To be quite clear, security certificates certainly lack the depth of due process that resides in the Criminal Code.

Security certificates also fail to provide justice and the opportunity to scrutinize the suspected behaviour, to determine at what risk are Canadians? What is the real risk? It has to be substantiated, proven and laid out in a court of law to ensure that the rights of people are protected.

We believe the Criminal Code is the right vehicle for the protection of our national security, while ensuring our rights are also protected at the same time. With Bill C-3, the government is leaving us with the impression that it is throwing band-aid onto the problem simply to address the Supreme Court ruling, to which I referred earlier. We have confirmation from experts that the new proposal will also be struck down yet again by another Supreme Court challenge.

The tinkering by the government is not enough to save this legislation. We also believe, in fairness, that committee work cannot do it either because it is fundamentally flawed.

There is terrible potential in any legislation that impedes or opens the door to the violation of the rights people, which include loss of liberty, then a deportation order and the very serious possibility of being removed to torture. In the very name of human rights, such legislation like this should not move forward.

Imagine for a moment a person is detained and deported from Canada and that person may never ever know the reason why. Equally horrific is the fact the failure to have due process for those reasons will never be aired to the public. Canadians will never know if they were at risk or if the risk was real. Also, in the sense of pure justice, there is no opportunity for anyone to refute the charges against them.

In the name of fear we are prepared to sacrifice due process and the fundamental right of democracy for people to face their accusers and to examine and defend against the evidence against them. This is worse than a kangaroo court. At least a kangaroo court has the facade of due process. Bill C-3 has none of that.

The legislation tabled a special advocate as part of the security process. Special advocates are used in the United Kingdom and in New Zealand, but the process does not fix what is wrong with security certificates in either of those places. Hearings are still conducted in secret. Sources of information are still kept confidential. It is no surprise that a special advocate in the UK, with seven years' experience, recently resigned in protest.

The Criminal Code already has the tools that we need to protect our national security, while honouring the Charter of Rights and Freedoms.

We also believe that foreign nationals and permanent residents should face the same processes and the same punishments as Canadians.

We have two problems with security certificates. First, they violate the Charter of Rights and undermine our justice system. Second, they are not the right tool for protecting national security. Even if security certificates were found to be constitutional, they still would not be the right strategy for fighting terrorism. The Criminal Code is for that.

Again, to reiterate, security certificates are the wrong way to deal with national threats. People who plot a terrorist attack on Canada should be tried, convicted and punished, not simply deported to another country to either find their way back here or, if they are guilty of terrorism, to plot against other parts of the world and perhaps our allies.

Terrorism, espionage and organized crime are serious matters that should always be dealt with under our Criminal Code, not the Immigration and Refugee Protection Act.

Security certificate processes also violate rights and undermine the core values of our justice system. This is why they were struck down by the Supreme Court and this is why the people we have heard from, the experts in the field, say that this legislation will be struck down.

The public safety file is essentially about protecting the quality of life of Canadians. New Democrats, and members of the House as well, have always been very concerned about those balances between being free and being secure.

We not only oppose the legislation because of the major flaws I spoke to earlier, but we have no guarantee that suspected terrorists, removed under certificates, will not return to this country. The NDP believes clearly that the Criminal Code should be used to seek justice. That is a term that we do not hear when we look at the bill, justice.

We are asking to have the right to pick a person off the street, detain them, put them on a plane and send them off without having the right to seek justice, not having the right to stand before our courts, stand before their communities, stand before their families and argue in defence of themselves.

Today, of the five individuals who were detained, four are out. They wear ankle bracelets as they travel around. We should consider for a moment some of the restrictions they are living under, and this is supposed to be better than being housed and detained. With the ankle bracelet, if one of these people decides to leave the front room and go to the back of the house, that individual has to be accompanied by someone from the family. If the person goes into backyard, that person has to be accompanied by someone from the family.

If these people come to the House, they have to supply CSIS with exact routes, exact turns in the road, exact timing. Why in the world would we support anything that curtails the human rights of people, the rights of coming and going, to that degree? Why in the world would we ever consider putting ourselves in the position as a country to be party to the kind of thing that happened to Maher Arar?

We have Mr. Almalki who spent months, as Mr. Arar did, in a prison contained in a space the size of a coffin. That is how it has been described to me. When we deport people, what controls are put on that action? Where are the accountability lines that will come back to us to ensure we will have the kind of guarantees that people will not be subjected to torture?

We hear in this place every day about Afghanistan, the prisoners who are turned over to the Afghan authorities and questionable reports about the potential for abuse there. These are our allies in combat. We do not have a real report in the House that we can look at, what happened, who has followed up and where the lines of accountability are.

If we deport people to a country, if we literally put them on an airplane, send them to that country, how can we expect a line of accountability somehow in countries that torture individuals? It is not there. Every citizen in our country, every foreign national has a right to expect of our government and each of us here to ensure they are protected by every aspect of our freedoms in our country. One of the those freedoms is the freedom against torture.

As I have said repeatedly and have done so on purpose in my remarks today, the other expectation they have is their rights to face their accuser, to seek justice, to see the evidence against them. That right is something every Canadian holds dear. What has changed? I talk about how the mentality in the U.S. has changed and how that mentality has moved northward. Within governments it has changed. I spoke about the “hang 'em high” attitude.

Fairness and justice in the minds of Canadians has not changed. If we talk to Canadians in depth about this bill, they will say that they do not accept it and in fact they do not understand how we could even have come this far.

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

Mr. Speaker, I listened with interest to the speech of the hon. member for Hamilton East—Stoney Creek. Clearly he differs with our party. We are of the view that legislation of this type, or of this ilk, is needed in the national security interests.

With respect to the special advocates, the member made some comparison to the British model. I will concede there are some who have suggested that the special advocate system is basically paying mere lip service to the right of anyone detained to have effective representation. What is it about the special advocate system that troubles him so greatly?

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

Mr. Speaker, it is the fact that the advocate does not have the access to information to the degree that is necessary. Whatever access to information the advocate does receive is not in the public purvey. Clearly the certificates err in the fact that we do not have due process as contained in our Criminal Code where a person can publicly face the evidence against them and publicly react to it.

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

Mr. Speaker, I am pleased with the comments that my colleague has made with respect to Bill C-3. I want to get at the sense he conveyed today about what is perhaps an overreaction by the Canadian government, and by that I mean both the previous Liberal government and the present Conservative government, to the situations around 9/11 and the threat of terrorism.

We are seeing a number of examples, in fact, of where the government of day seems to have had this knee-jerk response to a very difficult situation, and I am not diminishing the significance of that whatsoever, and it has put in place or proceeded with initiatives that create more problems than they set out to solve.

I guess today's example is last week's events around the taser incident in the Vancouver airport. It suggests to many that we have evolved into a society where we are quick to use tasers but could not put in place proper border services and translation services to help people coming from other countries.

As my colleagues from Windsor have pointed out, we cannot even put in place methods to ensure that paramedics and fire services can get across the border to help a community in peril because we are so focused on these knee-jerk, quick, easy, facile solutions that do not necessarily achieve what they set out to achieve and that create a lot of other problems in their wake. In this case, we are talking about interfering with people's civil rights and liberties.

I want to ask my colleague from Hamilton if he has any comments on that whole piece of the issue.

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

Mr. Speaker, this is exactly what the previous speaker has said. It is the erosion of fundamental rights that has taken place as a result of 9/11. Given the horrific nature of that incident, which we all saw on television as many Canadians died in those buildings, I am sure in my mind that the hearts of the people in this place ached as much at those events as those of people anywhere in the world. We could not turn away from those events.

On the other hand, literally hundreds of years of the evolution of law and the evolution of the Criminal Code were set aside in almost a casual way in the sense that it was so quick. I am very careful about the motivation in the hearts of the people at the time, but that does not make this setting aside right. This is the place where we have to defend the fundamental rights of Canadians. There is no other place to go to in this country.

When we have the Supreme Court striking down a piece of legislation, this place must consider it in more depth than this obviously has before this place moves forward on legislation of this nature.

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

Mr. Speaker, in his debate, the member for Hamilton East—Stoney Creek mentioned that deported persons will never know the reason why they are deported. He found that offensive. I would like to suggest to the member that every country actually has the right to refuse someone entry. I believe it is called persona non grata. Every country has that right in regard to entry into a country and it never has to give people a reason why they are refused entry into the country.

As well, he mentioned that Canadians will never know what threat they were under. Perhaps he can explain a little further along those lines about how we can sometimes suck and blow at the same time.

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

Mr. Speaker, it is a very difficult situation but it comes back to a very fundamental thing, which is the right of democracies worldwide to say that one has the right to face one's accuser and the right as a person to know the evidence against oneself.

I do not think Canadians want to be part of a country that picks people off the street, throws them in handcuffs and puts them in the back of a van so that then they are gone. There is the word “rendition”, which is what happens in the United States. It is always very interesting to watch for and listen to the buzzwords of the day. Members should consider what rendition means. It is a code word for torture.

Very clearly, in a fragile democracy, and every democracy is fragile, when we start allowing people to decide who has more rights than others, then we are putting ourselves and our country at risk. The reality is very simple. We have a Criminal Code. The Criminal Code has the statutes. It is time for us to use those statutes.

[Steven Blaney, Conservative, Lévis—Bellechasse, QC]

Mr. Speaker, I listened to my hon. colleague's speech and I would like to remind him that, based on the kind of debate we are having today, Bill C-3 seems to be enjoying the support of the other parties at this time and that this is all happening with the utmost respect for democratic debate.

I would also like to remind my colleague that Bill C-3 is a responsible answer to the requests of the Supreme Court. This expresses our government's desire to strike a balance between ensuring the safety of Canadians while upholding individual rights.

I did not hear my colleague suggest many solutions during his speech, although I felt here today that many members were looking for solutions and wanting to make suggestions to improve or amend the bill.

I want to ask the member what he thinks can be done to improve the bill.

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

Mr. Speaker, in the last minute or so of speaking time I have, let me say very clearly that this reaction on the part of the government is a very limited way to try to deal with a very serious situation that the Supreme Court of this country has struck down.

Many legal experts across this country are saying that this piece of legislation is flawed and will also be struck down. To be very clear, the government did not get the job done.

[Shawn Murphy, Liberal, Charlottetown, PE]

Mr. Speaker, I am pleased to rise in the House today to speak on Bill C-3, An Act to amend the Immigration and Refugee Protection Act, and in particular the use of security certificates.

I have listened to the debate. I suggest that this is a very important issue. What the House is attempting to do here today is to balance two fundamental issues. The first fundamental issue, of course, is the protection of citizens. The second is the protection of the fundamental civil liberties that have been given to citizens over the years.

To speak of this balance, let me say that there is nothing of greater importance to any government in any country in any part of the world than the protection of its citizens. In fact, that is the very reason why governments came to exist. Centuries ago, governments were not involved in roads, health, education or the issuing of drivers' licences. They were there basically to fund and maintain armies to protect their particular citizens.

However, we have evolved greatly from those days. Now we have a very fundamental principle of democracy that is with us: that a person who is charged with an offence has certain basic rights. I would suggest that these rights spring from the whole law of habeas corpus, which was adopted several centuries ago, that is, that no person can be detained unlawfully and that in fact the body is to be brought forward. That is the basic principle of habeas corpus.

That law has evolved over the years. It has basically evolved to a point where persons who are charged have to immediately be informed of why they have been detained. They have to be informed of what charges they are faced with. They have to be given the right to retain and instruct counsel, the right to be given bail immediately, and of course the right to obtain a speedy, fair and equitable trial as soon as possible.

Those are basic, fundamental principles that have evolved in society and that are with us. Every member of this House certainly agrees with them. No one would want, in any way, shape or form, to abrogate them.

Those are the balances that we are dealing with in this particular and unique situation where the Government of Canada is dealing with individuals. Thankfully we are not talking about a great number of individuals, but that is beside the fact. The Government of Canada has to be prepared to deal with these situations if and when they do arise.

That is the balance this House is trying to achieve. From the debate, the discussions, the questions and the comments we have heard, members can see that it is not a simple debate. There are strong views on each side of the equation. However, it is incumbent upon this House of Parliament to strike the right balance.

We did have the security certificates that were adopted in 2001 shortly after the incidents of September 11. They were with us for several years. In February of last year, they were struck down by the Supreme Court of Canada, which basically felt that they violated section 7 of the Canadian Charter of Rights and Freedoms.

The gist of the reasons behind striking down the security certificates was that there was an absence of defence counsel and an absence of any proper disclosure. That was totally fatal to any notion of fairness. In her remarks, Chief Justice Madam McLachlin stated:

Without this information, the named person may not be in a person to contradict errors, identify omissions, challenge the credibility of informants or refute false allegations.

Therefore, the certificates were struck down. It was a very fair decision. Sometimes some of these court decisions are not totally fair because they throw the whole state of the law and legislation into chaos. In this particular case, the Supreme Court of Canada struck down the particular legislation, but gave the Government of Canada one year in which to correct it.

In its remarks, which I suppose would be obiter dicta to the main gist of the decision, the court pointed to other jurisdictions, and I believe it was referring to Great Britain, that might be used as a guide for Canada in the development of legislation which would be constitutional, and which would meet the parameters of the Canadian Charter of Rights and Freedoms. We have a five or six year history with this particular issue and it is still before us. It is still incumbent upon this institution to strike the right balance.

Some have argued that because the security certificates are infrequently used, we should not have them in our law. I disassociate myself totally with those remarks. I have a fire extinguisher and smoke detectors, which I have not used. I have a life insurance policy which has not been used, but just because I have not used those items does not give me any reason to do away with them. I totally disassociate myself with that kind of argument. We have to be prepared to deal with any exigencies that might come up, and there have been a number of instances in this country where we have had to deal with them. We are dealing with a balance situation.

I will be supporting sending the legislation to committee. Every one of us in the House, and I believe there are 304 of us right now, have different opinions, different views, and different ideologies. Bill C-3 is not a perfect piece of legislation. I probably would have done it differently in certain respects, but it is certainly an issue that I believe should go to committee, where a group of 12 parliamentarians can study it and hear from experts. If any improvements can be made, they can be made at committee and the bill can be brought back to the House for a final vote. I will be supporting sending the bill to committee for that reason.

I should point out that we are dealing with an issue of national security, and it is my premise that politics should have no part in this discussion. This is an important issue. We should all work collectively to get it right.

I thought the direction given by the court was very fair. I will read another quote. This is regarding other countries to which this country should look, which the legislation did in fact:

It is clear from approaches adopted in other democracies, and in Canada itself in other security situations, that solutions can be devised that protect confidential security information and at the same time are less intrusive on that person's rights.

We are dealing with certificates that have been issued in very exceptional circumstances and deal with exceptional people who are inadmissible to this country under grounds of security, who allegedly have violated human and international rights, and are involved in serious criminality or organized criminality, which is certainly not that common.

We are dealing with situations where the person who signs the certificates cannot, for reasons of national security, divulge all the information to the person subject to the security certificate. If a person is charged with murder and is detained, that person is certainly informed of who the person has murdered and when, the circumstances of the murder, all the facts surrounding the charge. In this case that information--and everyone can appreciate the rationale behind it--cannot, should not, and I hope, will not be disclosed to that person. That is confidential information and if it ever did get into the public domain, it would certainly be problematic.

Bill C-3 requires a mandatory review within 48 hours, which is certainly very reasonable in my opinion. There would be another review within six months, should the detained person want that. These reviews are conducted by a federal court judge.

One of the fundamental changes in this legislation as opposed to the previous legislation is the appointment of a special advocate. That person has to be qualified. The special advocate has to be skilled and has to go through a security clearance himself or herself. The special advocate has access to some of the information that forms the government's opinion. It allows for an avenue of appeal. The special advocate has the opportunity to discuss the issue with the person that is the subject of the security certificate. It streamlines the proceedings. It confirms the use of what I would call appropriate and reliable evidence and does provide some detention review rights for foreign nationals.

This has been used in other countries. It is my opinion that again it is not a perfect situation because the special advocate will not be able to disclose all information to the person subject to the detention order, but certainly it attempts to strike the right balance that we need in order to move forward.

We have to appreciate that the people who are subject to this detention order would normally have the right to go back to their country. However, this leads to another very important issue that will have to be discussed by the committee. It has to be clearly stated in a way that is enforceable that the person cannot be sent back to a country where there is any risk that the person will be tortured in that particular country. We cannot rely on any diplomatic statements from certain countries that torture will not take place. That is a very important issue. It is another balancing issue that is out there. Again, we can see the complexities of this particular situation as we attempt to strike what I would consider and call a very, very reasonable balance.

As I said before, I will be supporting sending the legislation to committee. It is not perfect as I said before. It is a little disappointing in that this ruling came down in February 2007 and the ruling stated that we had one year to correct the legislation. We are dealing with it now in December, and we are referring it to a committee. The committee has to get back to the House. We really should have the legislation in place by February 2008, which anyone with a calendar knows is a very short period of time. It is late in the process. However, we have to move on it as quickly as possible.

If I were doing it myself, I would probably make some of the reviews after the 48 hour review. Instead of at the request of the person subject to the security clearance, I would make it mandatory at every three months or six months.

Another point that is in the bill that does add a certain amount of accountability, and the accountability is strengthened, is that the Minister of Citizenship and Immigration and the Minister of Public Safety sign the security certificates. If it ever happened that the terms of the act were not followed, certainly the ministers and their supporting departments would be held to account. I do believe that those provisions in the bill lend a certain amount of accountability to the whole situation.

That concludes my remarks. As I said before, I will be supporting the bill. I do hope that the committee will move on it as quickly as possible, if the bill passes this House, and will bring back the bill in its final form.

Again, we are under a very strict timetable with this legislation. We hope this will be put to bed by February 2008, which is not too far away.

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

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

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

[Shawn Murphy, Liberal, Charlottetown, PE]

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

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

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

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

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

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

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

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

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

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

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

[The Deputy Speaker, NDP, Bill Blaikie]

The hon. member for Charlottetown.

[Shawn Murphy, Liberal, Charlottetown, PE]

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

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

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

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

[Larry Bagnell, Liberal, Yukon, YT]

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

[The Deputy Speaker, NDP, Bill Blaikie]

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

[Larry Bagnell, Liberal, Yukon, YT]

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

[Shawn Murphy, Liberal, Charlottetown, PE]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Pat Martin, NDP, Winnipeg Centre, MB]

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

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

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

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

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

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

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

[Larry Bagnell, Liberal, Yukon, YT]

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

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

Mr. Speaker, whatever time I have left is about what the question is worth, but that would be unfair to my friend from the Yukon.

[The Deputy Speaker, NDP, Bill Blaikie]

Order. The time has expired.

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.

[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.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, the security certificate provisions of the immigration act allow for the deportation of people who are alleged to have participated in very serious criminal activity in Canada, activity related to terrorism, to plotting against the national security of Canada, to espionage and to organized crime. It allows for their deportation without them ever having been charged or convicted of those very serious crimes. Here we are removing people from Canada who are alleged to have committed very serious criminal violations but have never been charged, convicted or punished for those crimes.

I wonder if the member believes that it is appropriate to remove people from Canada without holding them accountable for serious criminal activity, like terrorism or threats to national security, and then sending them to their home country or to another jurisdiction without them ever having been charged, convicted and punished for those serious criminal matters.

[Mario Silva, Liberal, Davenport, ON]

Mr. Speaker, I commend my hon. colleague for his work on human rights because I know he deeply cares about human rights.

Part of what I was trying to state in this debate is that I have serious concerns, as do many people who are involved in human rights. Many organizations, from Amnesty International to others, have raised concerns and alarm bells. We want to ensure that whatever legislation we bring forward is charter compliant. We heard from the Supreme Court that there were issues of concern in the legislation that was brought before this House in years past.

One positive thing I have seen come forward from this is the role of the special advocate. It is something that the United Kingdom also has in place, and I see it as a very favourable thing.

However, I must say that there are still some concerns with this legislation but, at the same time, I think it warrants going before the committee to at least have a discussion there so we can hear from the different witnesses who come forward, specific groups that are involved in human rights, and then let us make our decision when it comes before this House at third reading.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, I understand that former legislation was struck down by the Supreme Court. If the security certificates process violates civil rights and undermines core values of our justice system, how does the bill in front of us actually deal with that aspect? Where is the accountability?

If someone is alleged to have committed serious crimes, should we not charge him or her? Is deportation not just a way of saying that this is out of sight, out of mind, it is not Canada's problem and let us just get rid of it?

That is not the most accountable way to go forward. How does this bill in front of us deal with the whole process of the justice system? Do we know whether passing this would survive the Supreme Court?

[Mario Silva, Liberal, Davenport, ON]

Mr. Speaker, whether it will meet the test of the courts, specifically the Supreme Court, we still do not know. We need to have that type of information before the committee and this House.

The great thing about our parliamentary system is that we do not adopt laws in one day. It is a slow process and I know the process frustrates some people but there are some beneficial aspects that come out of it. One of them is that we can look at legislation, speak to the different stakeholders out there, the different community groups that have issues of concern, and the legal experts and then make the decisions and, if necessary, amendments at the committee. At the committee stage we have the ability to hear witnesses, make proper amendments and then come before this House for a third vote.

We also have a situation where we have a second chamber in this House. The Senate also plays a major role in terms of looking at legislation and seeing whether it is charter compliant.

[The Deputy Speaker, NDP, Bill Blaikie]

Before resuming debate, I wish to inform the House that because of the ministerial statement, government orders will be extended by 11 minutes.

[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.

[Chris Charlton, NDP, Hamilton Mountain, ON]

Mr. Speaker, the way I look at this there is no doubt that anyone who plots a terrorist attack in Canada should be tried, convicted and punished, not simply deported to another country though.

Terrorism, espionage and organized crime are serious matters that should be dealt with under the Criminal Code, not the Immigration and Refugee Protection Act.

Security certificates are the wrong way to deal with the threats to our national security. The security certificates process violates civil rights and undermines core values of our justice system. That is why they were struck down by the Supreme Court in the first place.

Security certificates will not make Canadians any safer. That is why we are going to be opposing this legislation. I would ask my colleague across the way, are there not two major problems with the security certificates? First of all, it seems to me that they do not punish those people who are plotting terrorist acts. Security certificates allow for the detention and deportation of those suspected of terrorist activities, but they do not ensure suspected terrorists are charged, prosecuted or jailed for their crimes.

My second question is whether the aspects of the security certificate process, like detention without charge and the inability of the accused to know or examine evidence against them, do not undermine our justice system and our civil liberties.

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Mr. Speaker, I thank the hon. member for her concerns.

The current bill that is being proposed needs to go before committee. It has the role of a special advocate. The special advocate's job is to ensure that he or she is present and that the person who is accused of terrorism or crimes against the country is not left in the dark, that there is a special advocate available to listen and to ensure that that protection takes place.

That is why we are insisting that this bill go to committee. The committee has do its due diligence in ensuring that the recommendations of the Supreme Court are met. The committee must do a thorough analysis.

[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?

[Yasmin Ratansi, Liberal, Don Valley East, ON]

Mr. Speaker, I am aware of the special advocate's resigning. That is why I insisted that we send the bill to committee. It is important that the committee review the role of the special advocate, and whether enough money and resources are being given to the special advocate.

Other areas in the bill provide that a person detained under the security certificate must have his or her detention reviewed by a judge of the Federal Court within 48 hours. The bill permits a challenge to the Federal Court of the reasonableness of a security certificate.

Yes, the bill is flawed, but it is important to get the bill to committee so that the committee members can do due diligence and review it thoroughly.

[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.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, our Charter of Rights is meant to protect everyone in Canada. Right now we have two classes of people. The first class is Canadian citizens, who are protected. The other class is landed immigrants, who are not protected by the charter. Under the security certificates rules, it means people can be charged without knowing what the charges are against them and without knowing what the evidence is. There are secret hearings and no right to appeal. That is surely against the charter.

I do not understand why the former Liberal government introduced this process in the first place, in the nineties. With the bill in front of us, we now would have the advocate system that would not make a big difference. It has failed in the United Kingdom and other places.

What assurance do we have, if we pass the bill in the House and send it to committee, that we can improve the bill, which is so fundamentally flawed, in the various committee meetings and hearings?

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Mr. Speaker, I must agree in principle with some of the statements made by my NDP colleague. However, on this side of the House, we have done some work. We have also consulted legal experts, who have made proposals that seem reasonable to us.

When this bill is studied in committee, we will have an opportunity to debate the amendments that need to be made to the bill so that it complies with certain provisions of the charter and certain points raised by the Supreme Court.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, we are debating a bill that is intended to amend the Immigration and Refugee Protection Act for the purpose of making it more charter compliant. In fact, the government did not just dream this up. The bill has come to us as a direct result of a decision of the Supreme Court of Canada in the Charkaoui case, wherein the court identified a weakness in procedural fairness.

I think it is fair to say that many people had identified this potential problem over the years. It was never clear to all of us that the procedure which then existed would fall so short of charter compliance standards that we had to fix it. The problem was identified some years ago, and this bill attempts to make a repair, a fix, to the section in the Immigration and Refugee Protection Act to better protect those who are subject to the procedure.

I want to say a few words about the role of the Supreme Court in bringing about these kinds of changes.

This is not the first time Parliament has been asked, invited or told by the Supreme Court of Canada to do some additional homework to repair our legislation. I can recall a situation that developed about 10 years ago. It was the Feeney case, which was in front of the criminal courts. The case had to do with the ability of a police officer or peace officer to pursue an individual who was suspected of a crime. It is essentially a scenario involving hot pursuit, where the individual is seen committing the crime and then followed until the officer is able to arrest the individual and bring him or her in for either questioning or charging.

In the Feeney case, the police officer, in pursuing the individual, followed him to his residence. The individual entered his private residence and at some point the police officers followed and went in. The question that came up was whether a police officer could invade the privacy of a private residence without a warrant.

Up until then, our laws and our court jurisprudence had accepted that in a scenario of hot pursuit, a police officer could follow and enter into a private residence. In the Feeney case, the Supreme Court found that under the charter the police could not go into a private residence in that circumstance, and that the law needed repair.

I want to go through this carefully because I think this case and others are developing a kind of a protocol and jurisprudence, a kind of a dialogue with the Supreme Court, one that is necessary. It took us a long time to get here.

When the Supreme Court makes a charter interpretation of the law and it finds something non-compliant with the charter, it has the ability to strike it down immediately, or to strike it down after a certain period of time, or to read in a change to effectively legislate. The court can say that it will add these words in the statute, just like Parliament should have legislated them in the first place.

It does not do that very often. It does not read in very often and it perhaps does so reluctantly. In this particular case, in the Charkaoui case, that brings us this legislation, it did not read in. It gave Parliament time to repair.

In the Feeney case about 10 years ago, it struck down and gave Parliament six months to fix it. At the time it made the ruling Parliament was going into a general election. In my view at the time I thought that was pretty dumb of the Supreme Court. I am saying this with some respect. Looking back I have the benefit of 20:20 hindsight of course, but at the time the Supreme Court of Canada gave Parliament only six months to fix a piece of criminal law legislation when we were going into a general election, which would necessarily involve a break of several months. This did not give Parliament enough time.

At some point the bright lights turned on and the Department of Justice went back to the court and obtained a further extension. That was reasonable. The court was not unhappy with that. The point at the time was that this business of the court disallowing and giving Parliament three months or six months had to be done with a working knowledge of how Parliament worked. The government itself does not have the power to legislate. The government must bring the matter to Parliament and Parliament, through both Houses, makes the changes.

I was very unhappy about the Feeney situation that developed with Parliament. It has however allowed the development of a dialogue between the courts and Parliament. In this case the court gave Parliament a year and that should be enough time. In this case, if the House passes the legislation, it can deliver on what the court hoped we might deliver on. The court is doing its job. I do not criticize the courts for interpreting the law on behalf of citizens.

In this particular case the law does not invent or reinvent security certificates. It revises the procedure that is used in relation to security certificates. I know that there are those in the country who question the need for security certificates under the Immigration and Refugee Protection Act.

I have always accepted and they have been in the law here for some time, that our government, the people representing the people of Canada under the Immigration Act, need the ability to remove people from Canada. We do it all the time.

Every week there are dozens of people being removed from Canada as illegal immigrants. These are people who do not have status here, people who should not be here. They are removed simply because they do not comply with the Immigration Act or maybe they have serious criminal records.

The reasons for removal are all set out in the statute. To my way of thinking, the security certificate provisions are simply a refined component of immigration deportation procedures. It is not a special thing developed to remove whomever the government thinks it might want to remove. In fact, if I can take that other perspective, it is simply a deportation procedure on a faster track with one important difference.

The person involved has been found by the government, not simply an official in the government, not an immigration officer or not a bunch of immigration officers, and not the Canada Border Services Agency but two ministers of the Government of Canada and effectively the cabinet, to be a danger under national security and under security definitions, and must be removed.

We must always remember that we are not dealing with Canadians. We are dealing with non-Canadians. The security certificate provisions do not involve Canadians, only non-Canadians. The non-Canadian category includes people with no status and people who have permanent resident status but are not citizens.

I have always maintained that government needs the authority to remove people because we deport people all the time. There are perhaps two reasons why the security certificate procedure has been designed specifically for security reasons.

First, the circumstances involving security may or may not be quite pressing. As history has evolved, it would appear that the circumstances lying behind security certificates, in most of the cases they have been used, are not that pressing. The procedure has not been used all that often, a dozen or two times over the years perhaps. It is not like the person is a terrorist and about to push the button. The certificates have involved individuals who comply with the security concern definitions.

The other reason for a specific procedure is that in dealing with security matters some or most of the information that will be brought forward to describe the security concern will be information that is protected, secret, confidential, classified, or whatever we want to call it. In most circumstances, it would be neither appropriate nor wise, nor allowable to present that information in an open court or public forum.

We have classified that information because it involves security matters outside the country and has been received on a secret, classified basis, and analyzed and presented. There needs to be a procedure to protect that information for the same reason we protect all classified security information. We do that routinely as a country.

We protect our classified information right through the entire range of government. If we are using classified security information in relation to an individual subjected to these procedures, then we need a special procedure that will do that. That is one of the reasons why we use the security certificate procedure.

I will just offer a hypothetical example, one that is not too bizarre. I will refer to the mythical Carlos the Jackal, who I understand is now deceased. Imagine that person had been found living in Moose Jaw under an alias and we wanted to remove him from this country, but he had not committed any offences in Canada. Would he have been a simple deportee? Would we invite him for a hearing in front of an immigration officer and then tell him to come back a week later when a decision would be made? Would we ask him if he wanted a lawyer?

We have lots of procedural fairness available to people subject to deportation proceedings. The answer with respect to my example is clear. We would probably want to remove him quickly. We would have classified national security information which could not be disclosed on the street because it would reveal some of our procedures and protocols on dealing with security matters. That is one of the reasons why we do not make these things public. However, they are real and ongoing. So, getting rid of Carlos the Jackal would require a special procedure, and that is the security certificate procedure that we have developed.

In that particular hypothetical case, he is not a permanent resident; he has no status in Canada; he is hiding here; and he is to be removed to his country of citizenship. This is not a rendition. This is simply a removal to his country of citizenship; and in that case, there were probably a lot of countries looking for him. Nonetheless, that is a security certificate procedure, hypothetically, as opposed to a simple deportation removal.

I heard an hon. member, I think it was the member for Trinity—Spadina, say that the security certificate procedures breach the charter. They do not. They have all along, up until now, over all the years we have had them, been found to be charter-compliant, except for the Charkaoui case and the courts spotted flaws, things that we could do better.

In the Charkaoui case, the courts have said that presenting classified information to a judge without adequate disclosure to the person subject to the proceeding was not fair. It was not charter-compliant. It just did not go as far as it could. We could make more disclosure.

And if I can revive my hypothetical, we would not give the whole file to Carlos the Jackal. We would actually find a way to make him aware of the nature of the facts on which he is being removed from Canada.

The method chosen by the statute is the appointment of a special advocate. This is not a new construct. In security matters, we have already put to use specially retained security-cleared counsel in other aspects of litigation and security work. I will just give members one example.

When an individual employee of the Government of Canada or a complainant involving the work of CSIS or an opinion on a security clearance by a department based on the work of CSIS has a complaint about that, he or she may complain to the Security Intelligence Review Committee. That committee has routinely retained security-cleared counsel to view all of the evidence and to advocate on behalf of the individual who, for security reasons, is not able to directly see all of the classified information.

The special security-cleared counsel, under the SIRC security hearing procedures, has worked quite well, in my view. It has worked since 1984. There have been no serious concerns expressed about that.

Under the security certificate procedures here, we are inserting and putting into that an analogous mechanism where there will be a special advocate who will be a lawyer and who will have the ability to, under the supervision of the presiding judge, review all of the classified information or the classified information which the judge believes is necessary to allow adequate sufficient charter-compliant disclosure to the individual subject to the hearing. That is a good mechanism. I fully support it and I am sure it will work.

The last thing I want to say is that I have a concern about section 82.2. This section would allow peace officers, when a person is released during the certificate procedure, to arrest the person if they know there has been a breach of the condition or if they anticipate a breach.

I am concerned about giving that authority to a peace officer, about giving to peace officers the power to arrest someone because they think there might be a breach of condition happening. I am worried about an abuse, not a fair situation or a good faith situation. I am worried about a breach. However, this issue can be looked at by the committee in terms of fairness, charter compliance and the right allocation of power.

In all other respects, I remain supportive of this legislation.

[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?

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, I have a funny feeling that if we just in theory dropped the term “security certificates” and took it right out of the legislation, put the procedural provisions into the deportation provisions, added a little tweak to protect the classified information and a little tweak to provide for protection of public safety, then we would not have so much objection.

What we would have is a deportation of a non-Canadian just the way we would deal with someone involving serious criminality or another basis for deportation. Then we would not have this red flag of security this, security that, security certificates, and big brother and all that stuff. We could just say, “This was a deportation for security reasons, itemized, and presided over by a judge”. The procedure has to go to a judge.

The other deportation procedures do not even go to a judge. This procedure goes to a judge. It is imbued with tons of procedural fairness. Now we have even new fairness with the thumbprint of approval of the Supreme Court of Canada. I think that partially answers the member's question.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Mr. Speaker, it is with some pleasure and some concern that I enter this debate. I have a question for my hon. colleague in terms of the way this procedure manifests in his mind.

We have been looking through this bill to try to understand if there is any prohibition that would prevent the government from putting one of these security certificates on someone and then deporting the person or having the person removed to a country that performs capital punishment or torture.

Canada obviously has had some unfortunate experiences with this in the past, with Maher Arar and others. I am wondering if that prevention has been made in the bill. As the member has addressed in his comments, in regard to the balance among security, the rights of individuals and the rights of Canadians that we all enjoy, we also seek to treat people who come to this country with a similar amount of respect in trying not to deport them to torture and in insisting that we do not deport them to countries that perform capital punishment.

I am wondering if the member has identified that in the bill. Can he give the House an assurance that this has in fact been removed as a potential result of one of these security certificates being performed?

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, as I read the bill, the answer to the question is yes and no. There have been some procedural changes to ensure that the refugee claim component still exists and is dealt with under the security certificate procedure. The current law actually provides for the displacement of refugee claim procedures.

Before every removal in a refugee claim, as we know, there is the pre-removal risk assessment, the PRRA, and pre-removal risk assessments result in people not being removed to places where they will be in physical jeopardy. The court has said that we do not have to do the PRRA on the security certificate. I think that is the way the courts have interpreted it: that security certificates are so significant that we do not have to do the PRRA.

However, this brings back in through the side door the refugee procedures, so there may in fact at some point be a clash between refugee procedures and PRRA. I do know that generally Canada does not want to deport people to countries that have a death penalty. Canada avoids that. In a security removal, people are not being deported on crimes where they are subject to the death penalty. Canada is simply deporting a non-Canadian to the country of origin.

The risks may still be there. The amendments to this bill make it more sensitive to the issue the member raises, but in no case is there an absolute barrier on the removal of someone subject to a security certificate.

[Alan Tonks, Liberal, York South—Weston, ON]

Mr. Speaker, I have a great deal of respect, as the House does, for the manner in which the member for Scarborough—Rouge River has approached this subject.

The question I have is around the role of the special advocates. To my mind, the role of the special advocate has been introduced in order to achieve natural justice for every person who stands accused by the state of allegedly violating the laws of the land. Normally, that solicitor-client relationship is predicated on who pays the solicitor. In this case, it is the government that has created the special advocate.

I have a question. There is only one individual representing the state with respect to the role of the special advocate and adjudicating on what that relationship is, and that is the presiding judge. If information came forward that would result in a security certificate being applied to another individual, what role does the judge play in transferring and processing that case? Inasmuch as the member has already stated that the information is secret and the only person who makes the decision is the judge, what is the role that the judge plays?

I am sure the House and the public would like to know what the checks and balances are with respect to continuing in the public interest the application of the certificate.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, as I understand the legislation, the judge involved does not represent the government. The judge does not speak for the government. The judge is in an impartial judicial appellate function. The law requires that a judge review, as in an appeal, the decision of the government to determine if it is reasonable or not. That is what the judge does.

There is a departmental advocate, so to speak, someone to carry the case for the government. That person knows everything, if the advocate has done his or her homework, about the individual. The judge can know everything and at the end of the process would know everything.

The special advocate will work on behalf of the person subject to the certificate but will be paid by the government, much in the way legal aid pays from time to time for representation in criminal courts. The fact that the government pays the special advocate does not create a barrier, as I look at it, with the individual.

However, the member raises a good point. We in this country are quite used to having that existing common law relationship of solicitor-client. I am wondering whether the fact that the government describes this position not as a lawyer or counsel but as a special advocate somehow alters the solicitor-client relationship.

That is an interesting question that I hope will come up in committee. Perhaps one or more of our law societies may choose to address just what exactly is the relationship, the obligation, of the special advocate to the person subject to the procedure.

[The Deputy Speaker, NDP, Bill Blaikie]

Is the House ready for the question?

[Some hon. members]

Question.

[The Deputy Speaker, NDP, Bill Blaikie]

The question is on the motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

No.

[The Deputy Speaker, NDP, Bill Blaikie]

All those in favour of the motion will please say yea.

[Some hon. members]

Yea.

[The Deputy Speaker, NDP, Bill Blaikie]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Deputy Speaker, NDP, Bill Blaikie]

In my opinion the yeas have it.

And five or more members having risen:

Call in the members.

And the bells having rung:

[The Deputy Speaker, NDP, Bill Blaikie]

The government whip has requested that the vote at this particular time be deferred until the end of government orders today and that is what will happen.

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

[The Acting Speaker, Conservative, Andrew Scheer]

It being 5:41 p.m., the House will now proceed to the taking of the deferred recorded division on the motion at the second reading stage of Bill C-3.

Call in the members.

(The House divided on the motion, which was agreed to on the following division:)

Vote #10

[The Acting Speaker, Conservative, Andrew Scheer]

I declare the motion carried. Accordingly, the bill stands referred to the Standing Committee on Public Safety and National Security.

(Bill read the second time and referred to a committee)

It being 6:12 p.m., the House will now proceed to the consideration of private members' business as listed on today's order paper.