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

[Bev Oda, Conservative, Durham, 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 third time and passed.

[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.

Canada has a long and honoured tradition of welcoming people from all over the world. Each year we admit more than 95 million people to our country, including 260,000 new immigrants. The vast majority of these people are individuals who enrich the fabric of our society through new visions, beliefs, languages and cultural backgrounds. However, some people try to abuse our openness and pose a danger to our country. Canadians insist on vigilance against these people who pose a danger to our nation, and in some cases, to other nations around the world. Such people cannot be allowed to stay in Canada.

This 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. 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 rights, spying, or serious criminality or organized criminality. Through intelligence and investigation, Canadian authorities determine the risks posed by various individuals and recommend whether they should be allowed to remain in our country.

During these investigations, authorities must protect confidential information, such as sources, third party and foreign agency information and methods of operation. For example, some individuals have ties to larger organizations that are under ongoing investigation by our national security agencies. These investigations do not simply stop after the arrest of one person. Investigative techniques should not be disclosed as this could expose the investigation.

Furthermore, as human sources are often used during these types of investigations, revealing their identity could jeopardize not only the investigation but the safety of the source or even the source's family. As such, when the removal of a dangerous foreign national from Canada is sought and confidential information forms part of the case against the person, the security certificate process is relied upon if the person is unwilling to leave voluntarily. Such a process has existed in one form or another for decades.

Bill C-3 responds to the Supreme Court ruling in the Charkaoui case. In February 2007, the Supreme Court of Canada confirmed the use of security certificates generally. However, it did find aspects of the security process that required legislative improvement.

Bill C-3 introduces important new measures that will help better protect the rights of individuals subject to security certificates. There are three major components of Bill C-3: the new special advocate function; the new detention review rights awarded to foreign nationals; and the new rights of appeal in relation to federal court decisions.

In the Charkaoui case, the Supreme Court found that the government must do more to protect the interests of a person subject to a security certificate during closed hearings where confidential information is presented.

The first major change proposed by Bill C-3 is the introduction of a special advocate into the security certificate process and certain other proceedings under the Immigration and Refugee Protection Act. The special advocate's core role is to protect the interests of the subject by challenging the government's claim to the confidentiality of information, as well as its relevance and weight. The special advocate will also be able to make written and oral submissions to the court and cross-examine witnesses.

We realize that every case will be different and every case will have different needs. That means we cannot anticipate every twist and turn. That is why we are also adding a catch-all clause, section 85.2(c). This section authorizes the judge to provide the special advocate with any further powers that are necessary to protect the interests of the individual.

The public safety and national security committee reviewed Bill C-3 and after hearing from many witnesses, agreed to include several amendments related to the special advocate section of this bill. The amendments to the special advocate role enhance the fairness of the security certificate process.

The Minister of Justice will establish a list of persons. The public safety and national security committee has set out specific criteria to establish who may act as a special advocate.

Some of the qualifications include: membership in good standing of the bar of a province; relevant litigation experience; appropriate security clearance; and that their independence from the government as well as having no conflict of interest is ensured. The special advocate is a party to the proceedings to protect the interests of the subject and there should be nothing that impairs this ability.

As well, when a judge appoints a special advocate, he or she will have to consider the preference of the person subject to the certificate. When a person subject to a certificate requests that a specific individual be appointed as a special advocate in his or her case, the judge will have to appoint that person, unless satisfied that the appointment would unreasonably delay the proceedings, would place the individual in a conflict of interest, or would create a risk of inadvertent disclosure of information or evidence that could harm national security or endanger the safety of any person.

The special advocate will be able to communicate with the person who is subject to a security certificate without any restrictions before he or she sees the confidential information. An unclassified summary of the case would be provided to discuss with the individual. This should substantially assist the special advocate in preparing for the closed proceedings.

Once the special advocate is privy to the classified and confidential information, he or she can no longer communicate with anyone about the proceeding while it is ongoing, except as specifically authorized by the judge. This is to avoid any inadvertent disclosure of confidential information to the subject.

Again, I urge members to remember the importance of safeguarding such information to protect our national security and ensure the security of various sources.

However, even after seeing the confidential information, the special advocate can apply to the judge for permission to communicate with the person subject to the certificate. If the judge grants the request, the judge may impose conditions on the communication to ensure that confidential information is not disclosed.

Although the bill states that a person subject to a certificate does not enjoy a solicitor-client relationship with the special advocate, an important amendment was made by the committee. The change states that communication between the two individuals is to be protected as if a solicitor-client privilege existed between them. The amendment also states that the special advocate is not a compellable witness in any proceeding. This change further protects the interests of both individuals.

The second major change proposed by Bill C-3 is related to detention reviews. Under the security certificate process, a judge of the Federal Court reviews the detention of a person subject to a security certificate and determines if it is still warranted.

Prior to the Supreme Court's ruling on a security certificate in the Charkaoui case, permanent residents were entitled to detention reviews within 48 hours after their initial arrest and every six months afterwards. However, foreign nationals were only entitled to a single review 120 days after the certificate was found to be reasonable.

The court ruled that foreign nationals should have the same detention review rights as permanent residents. Bill C-3 enacts this ruling into law. All detention reviews will take place within the first 48 hours after arrest and every six months after the conclusion of the previous review.

Detention pending removal in a security certificate case is based on periodic assessment of the danger to public safety or national security. The person may be kept in detention until such time as he or she leaves the country or is removed from Canada. The security certificate process is about removing non-Canadian citizens from Canada because they represent threats to public safety and national security. Let me again stress this important aspect of the security certificate process, that a person would be released from custody if the person agreed to leave this country.

The last important change I wish to explain today is that of a new right of appeals. As it currently stands, the Immigration and Refugee Protection Act contains what is called a privative clause. A privative clause is contained in legislation that limits judicial review.

Bill C-3 will eliminate the privative clause. Appeals would only be allowed against the final decisions of the court on the reasonableness of the certificate and only if the judge decides a serious legal issue has been raised for the consideration of the Court of Appeal. This requirement, called a certificate of a question, is consistent with the way other decisions under the Immigration and Refugee Protection Act may be appealed.

Finally, Bill C-3 proposes transitional provisions that would allow for cases in progress under the current legislation to recommence under the new legislative regime if new certificates are signed by ministers. The transitional provisions are designed to ensure appropriate and ordered change from the old legislation to the new and would provide the benefits of the new legislation to the individuals subject to a security certificate.

If a new certificate is signed, the case would be referred afresh to the court to determine the reasonableness of the certificate. Special advocates would participate in the new court proceeding. Detained individuals would continue to be detained and would have the right to apply for new detention reviews with the benefit of participation from a special advocate.

Similarly, cases before the Immigration and Refugee Appeal Board where confidential information is relied upon would also benefit from the special advocate provisions. Bill C-3 gives thoughtful deliberation to the Supreme Court's concerns and takes into consideration the recommendations from several House of Commons and Senate committees.

Security certificates are a vital national security tool. We have a responsibility to our citizens and to the international community to make sure we do not become a safe haven for individuals with links to terrorism, serious criminality or organized crime or those who wish to spy in our country or who have violated human rights.

We also recognize that we have a responsibility to ensure that we do this in a manner that demonstrates clearly the Canadian values of justice, fairness and respect for human rights. Bill C-3 achieves this necessary balance. I encourage the hon. members of the House to support Bill C-3.

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

Mr. Speaker, I appreciate the intervention in the third reading debate on Bill C-3 regarding security certificates. It is a piece of legislation that we in this corner of the House have very severe problems with, given the way it compromises some of the fundamental principles of our justice system.

I would like to ask the member specifically why he would be in favour of an immigration process to deal with some of the most severe crimes that can be contemplated against society and our country, to deal with questions of terrorism, threats against national security and espionage. Why would he propose dealing with them through an immigration process which only, ultimately, would remove those people into another jurisdiction and never see them charged or punished for those very serious crimes?

Why would we not want to insist on some kind of criminal proceeding against people who undertake those very serious crimes, prove it in court and make sure that they are punished for those crimes, rather than just to see them removed into another jurisdiction, never to be punished for engaging in that kind of activity?

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, that question opens up the whole area that the NDP has somewhat resisted in Bill C-3. It really only deals with people who wish to come to this country, who are not Canadian citizens and who represent a danger or threat to Canada's security and safety. Many of these situations are not as a result of crime in Canada, which is where we could lay charges, but they result from associations with criminal acts and a whole host of things that are off of our shores to start with.

These are people who, for safety and security reasons, are not welcome in Canada. They should be removed. Under the Immigration Act they would have been removed but they have used our court system to argue that they should remain here for a variety of reasons.

This act itself does not deal with Canadians who have committed crimes in Canada. It does not deal with foreign nationals or others who have committed crimes in Canada. It could but it does not deal with those people. Generally speaking, it has do with their inadmissibility here in the first place.

[Bruce Stanton, Conservative, Simcoe North, ON]

Mr. Speaker, I have heard from a number of constituents in my riding of Simcoe North on this very important topic. Often they are alarmed and seized by the notion that the process for security certificates involves secret trials. I am sure Canadians would be interested to know why in these rare circumstances there have to be confidences kept in the process.

I wonder if the parliamentary secretary could expand a bit on why that needs to be the case and assure Canadians that this is an important confidence that needs to be kept in these rare circumstances.

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, the reason for secrecy deals with the issue of the protection of a number of other people. It may very well be the protection of people in Canada, or it may be the protection of people outside of Canada or other agencies.

As I indicated, with some of the individuals, it is a long-standing, ongoing investigation. To reveal, in public, all the sources and witnesses would put others at risk. It would also put at risk investigations that may be ongoing in our country and also in other countries around the world. Therefore, there is need for secrecy.

It is not like a criminal trial, where one individual is on trial. These hearings determine whether people should remain in the country or be removed. There is a whole litany of reasons why it is necessary to keep the information confidential, to protect both individuals and other agencies.

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

Mr. Speaker, what is important to underscore is the people with whom we are dealing. If they truly are as dangerous as the government is to allege, then we want to keep them in custody. If we have a very serious offender who is truly a threat to Canada, I want to see that person in jail.

However, let us not kid ourselves. If there is a real professional, who we are deporting under a security certificate, that individual can easily return to Canada. We may say what we will, but our borders are porous. If an individual intends to do harm, that person can certainly come back, given the state of our borders.

It seems to me that the way we deal with dangerous individuals is to put them in custody and keep them there. If somebody has a problem with serious criminality, the individual is inadmissible to Canada in the first place.

However, the security certificate process attacks the very integrity of the legal section of the Charter of Rights of Freedoms. Let us not fool ourselves. This security certificate regime has been unconstitutional ever since the Charter of Rights and Freedoms has been in place. We have an unconstitutional piece of legislation, and the government says that it wants to continue to do more of the same. That does not work. If someone is dangerous, that person should be in custody either here or someplace else.

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, I appreciate my colleague's comments but he is wrong.

This does not only deal with criminality. He indicated that people with serious criminality are ineligible to be in Canada anyway. This is precisely about putting up those obstacles at the border to keep people out.

I might suggest that this is old legislation. It has been around a long time. It has been tested in the courts many times, and this amendment deals with a court decision. However, Canadians should also know that it is not used willy-nilly. I believe it has been used 28 times with 27 individuals over the last 20 years.

The most recent security certificate was issued by officials of this government for industrial espionage and the individual chose to leave the country without being detained any longer.

It is a necessary tool. It is an important tool. It deals not only with criminal acts, but also with terrorist acts and any number of serious threats to Canada's safety and security.

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

Mr. Speaker, why would Canada voluntarily let someone, whom we suspect and have evidence of committing industrial espionage, leave Canada voluntarily without punishing the him, by charging him and taking him to court?

It is a very serious criminal matter. Why would we use this kind of legislation to facilitate ducking those charges? It just does make sense and it does not make Canada any safer. Why would we do that?

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Speaker, I thought I had made it clear a little earlier. In many cases the totality of the evidence cannot be disclosed to the individual. In this case it was deemed that he was inadmissible to Canada. A security certificate was issued, he left Canada and the country is the better for it.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Mr. Speaker, I am pleased to rise to speak to this matter.

First, the presentation of the parliamentary secretary was fairly detailed on most of the technical issues. Therefore, I will not talk about what is contained in the bill. He has described the bill more than adequately.

I will address some questions before I get into some of the details of the legislation.

First, our country takes in over 250,000 immigrants and refugees every year. That is our lifeline. That immigration supplies human capital, skills and the talent we need on an ongoing basis.

When we have a country as open as Canada, there are elements who come to the country who do not belong here. They have committed crimes somewhere else or they may intend to commit crimes in our country. Most countries that deal with immigration expressly retain the right of removal from the country for aliens or non-citizens, whether they be permanent residents or just aliens in the country.

It is important for us to understand that the legislation is based on this assumption; Canada being an open country that invites and welcomes immigrants. Canada needs to have a mechanism in place where it does not have to go through rigmarole of proving beyond reasonable doubt all the crimes an individual may have committed before the individual could be deported out of the country or removed from the country.

This is an important concept for people to understand. Once we understand it and if we believe Canada ought to have that right in place, then I think everything else follows.

I have been a practising lawyer since 1977. I was called to the bar in 1977. Since then and before that, immigration legislation in Canada always has had clauses to deal with the inadmissibility of people who may want to come to Canada or may be in Canada as permanent residents or aliens. Therefore, this is nothing new. It is not as if suddenly we woke up one day and now imported into our legislation something that had not existed.

Security certificates have existed for the last several decades. They have been challenged in the past. They now have been challenged in the Supreme Court. The Supreme Court provided some instructions for the government and the government brought the legislation forward to meet the deadline of February 23.

If the Liberals had to introduce this legislation, we would have looked at the home grown model of the SIRC, the Security Intelligence Review Committee. We may have chosen the U.K. system with a special advocate, which the government chose, but we may have brought in amendments to that system. That system has been under a great deal of criticism in the United Kingdom itself.

Therefore, this is not ideal legislation. There are no ideal solutions when we try to deal with organized crime or terrorism and the difficult questions of proof, of issues, of actions and omissions that may have occurred away from our shores in other countries. It is not easy to bring that evidence forward to deal with those issues.

Let me give a case in point, the Air India case. I was the attorney general when it was being investigated and I was the premier when the two individuals, who were eventually acquitted, were arrested for that. I know from the briefings I received from the Crown that the evidence for the crime was in different parts of the world. This is why it took so long for the Crown and the investigators to gather that evidence. Even then, we were unsuccessful in prosecuting that matter.

That simply brings this into focus. If someone is an alien or a visitor trying to get into the country and we have evidence or sources, which sometimes cannot be disclosed without jeopardizing and compromising our contacts or informants, we need the kind of process in the security certificates to deal with those issues.

Then there is the question that always arises. Why do we not deal with these issues through the Criminal Code. Under the Immigration and Refugee Protection Act, we have always had this regime where we have dealt with people who were inadmissible. The proof required under the act is not one of beyond reasonable doubt. It is essentially on the balance of probabilities or on reasonable grounds. It is a quasi-judicial, quasi-criminal matter so the proof is not as onerous.

This is appropriate in cases where our country faces danger from people who may have committed crimes elsewhere, who cannot be advised of the information completely and who cannot be given all the names of the agencies and informants from which we received information. Under those circumstances, it is appropriate to use that lower threshold and not the Criminal Code threshold. The fact is the evidence may not be in our hands. It may be somewhere else thousands of miles away from our shores. This is why these kinds of cases cannot be dealt with on the Criminal Code basis.

It is important to recognize that to come into Canada is a privilege. It is not a right for anyone in the world to come into the country except people who are Canadian citizens. Canada ought to reserve the right to deal with these individuals in a way that is appropriate, that is in keeping with our traditions of due process and the like.

Some of these crimes are often committed elsewhere. The information and evidence is elsewhere. It is important for us to protect those agencies and informants. They may have provided us with that information. Therefore, it is important we continue to have the mechanism in the immigration legislation.

When making the decision in the Charkaoui case, the court examined various models. I have said this before in the House. It is unfortunate the government chose this model. The government could have chosen a security intelligence review committee model, which is a home-grown, home developed model in Canada. It is more adversarial in nature and provides for better disclosure of the evidence. It also has provided in the past couple of decades a mechanism where the evidence can be scrutinized in the presence of counsel. I do not believe there ever have been any violations of security with respect to that process. Therefore, this was an appropriate model to adopt, but it was not.

The court also looked at the Arar case, how Mr. Justice O'Connor dealt with the issues of confidentiality, how he provided and facilitated the provision of information to the counsel for Mr. Arar, with all the security precautions intact. The government could have looked at that.

The court also addressed the issue with respect to the Evidence Act and how the attorney general of Canada could deal with the need for non-disclosure in certain cases. The government did not look at that. The government went to the United Kingdom model, which was not necessarily the best model. However, that is what we have and that is what we have tried to improve by bringing forth the amendments about which my colleague, the parliamentary secretary, talked.

Could this legislation have been better? Definitely. Could it have been different? Definitely. However, there is no question in my mind that the legislation is a necessary evil, so to speak. Ultimately, if we are interested in protecting our country from those who wish to do harm to it, it is important to keep in reserve, within the hands of the government, mechanisms that keep the country secure and safe. It is very important in the context of that to look at the due process, which has been provided in the legislation.

I believe the amendments, which deal with how one appoints an advocate, have enhanced the legislation. The legislation would give the public safety minister appropriate instructions for preparing a roster of security cleared advocates from independent, qualified members of the bar from across the country who would be provided with adequate resources to independently function when acting in the interests of the accused and in no one else's interests.

The choice of counsel is a cherished principle in our laws and in our centuries old conventions and I believe that choice has been preserved in the bill for the detainee. A detainee would have the right to choose from the independent roster and the judge would then appoint that particular advocate for the detainee barring circumstances where that might jeopardize either national security or may bring the individual into conflict.

There is also the issue of privilege. When the bill was presented in its initial form, it had no privilege. The detainee enjoyed no solicitor-client privilege at all, which exposed the detainee and the advocate and any communications with each other to disclosure. Therefore, it was seen fit by the committee to re-import the notion of solicitor-client privilege to the extent of protecting those communications.

The most important amendment in my mind is the amendment that the committee pushed through on the issue of torture. It clearly prohibits evidence that may have been derived, either primarily or secondarily, from torture. Any evidence that is tainted by torture would not be admissible in the proceedings with respect to the detainee.

Those four amendments have actually enhanced the bill. The bill could have been a lot better but this is the bill we were given and it is the one we are working with. The deadline is looming and we want to ensure this is dealt with expeditiously so that on February 23 a certain legal regime will be in place to deal with the existing certificates and a mechanism is available to issue others if needed. Of course, that is being done sparingly. As we know, over the last decade only 28 security certificates have been issued.

These are not easy issues. We need to balance national security interests with the interests of due process in our conventions and our laws. These decisions are not made lightly. I understand that some colleagues may have difficulty with these issues but when one is in the business of governing sometimes tough decisions need to be madeand we need to deal with balances that may not always be the way we would like them to be.

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

Mr. Speaker, I still fail to see how it would make Canadians feel safer if we were to allow someone accused of terrorism or espionage to leave Canada and go to another country unpunished? How would this protect Canada? How would this protect Canada's national interests? How would it make us safer if we were to allow someone who we believe to be a terrorist or a spy to leave and, given the small planet these days, continue to pursue their activities in another country?

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Mr. Speaker, that is a false question that is being set up by my hon. colleague.

When the evidence is far away, when the contents cannot be disclosed and when the agencies cannot be disclosed, we cannot prove those kinds of crimes beyond a reasonable doubt because most of them did not occur on Canadian soil. It is important that we become pragmatic and understand that in some instances we just do not want the people because we may not be able to put them behind bars.

[The Acting Speaker, Andrew Scheer]

About nine minutes remain for questions and comments after question period.

We will now move on to statements by members. The hon. member for Edmonton—Strathcona.

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 third time and passed.

[The Speaker, Peter Milliken]

Before question period the hon. member for Vancouver South had the floor and there are eight minutes remaining in the time allotted for questions and comments consequent to his remarks. I therefore call for questions and comments at this time.

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

Mr. Speaker, in relationship to the security certificate, many of the people who have a security certificate issued against them are not aliens but have standing in Canada. Because of the amendments to the 2002 immigration act, the security certificate process was extended to people who had standing in Canada.

Further, in Bill C-18, the proposed citizenship act at the time, it was proposed that security certificate methodology be introduced into the revocation of citizenship.

Would my colleague kindly tell us if he would agree with putting citizens under this regime as well?

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Mr. Speaker, as I said earlier, that is a false question that has been set up simply to confuse the issue.

We have a situation where security certificates apply to people who are not Canadian citizens. I have not considered the question of the Canadian Citizenship Act. I am not very familiar with that legislation. However, these are very serious measures that are required to deal with the issue of terrorism and organized crime and danger to national security.

If we have Canadian citizens who are a danger to national security, they are dealt with differently. They always are.

Is the member is suggesting that some people were considering including the security certificates in the Canadian citizenship regime so that people whose citizenship could be revoked could be subject to that? The fact is that citizenship can be revoked for serious matters, such as having lied about a very serious matter.

My view would be that if a person has fraudulently obtained citizenship and is a danger to national security then we should be able to deal with that but not necessarily through the security certificates.

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, given that the member has made comments that this was not the bill that the Liberal opposition would have brought forward, that it could have been better, I would say that it could have been made better if the government had not waited until October 22, 2007 to table the bill, if committee had been given more time to hear the other witnesses who wanted to present and if it had been given more time to explore how to make it better.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Mr. Speaker, as I have indicated in my remarks twice in the House, this could have been a different bill. It could have been based on the SIRC model. It could have included some of the practices followed by the Arar commission. It could have dealt with the issue in the way that the Evidence Act deals with non-disclosure when non-disclosure is sought by the Attorney General of Canada.

There is no question in my mind that the bill could have been improved with time but this is the bill that we were given and, in the time period we were given, I think we have done the best we can with the bill and it should be passed expeditiously so we can meet the deadline.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, I would first like to congratulate all the opposition members who worked very hard in the Standing Committee on Public Safety and National Security on this very important issue regarding human rights and people who are concerned about procedural guarantees. I am thinking of the contribution of my colleague from Marc-Aurèle-Fortin. I believe he was supported by the member for Saint-Hyacinthe—Bagot. I also know that members of the official opposition, such as members from the NDP, worked very hard and they should be acknowledged.

I must say it is very disappointing for the democrats in this Parliament, very disappointing for those who believe certain principles should be defended when it comes to the administration of justice, and very disappointing for those who believe in fundamental justice.

As my colleagues on the Standing Committee on Justice and Human Rights know, in a democracy, the ends do not justify the means. We cannot say a situation is urgent or that there are potential terrorist threats as a way to ignore or fail to respect some principles of fundamental justice that are inalienable and inviolable.

That is why the Supreme Court sent a very clear message to Parliament—it will be one year ago in a few days, if my memory serves me correctly—indicating that it had gone too far, that it miscalculated the potential repercussions of this bill, particularly in light of one of the constitutional guarantees found in section 7 on the right to life, liberty and security. There is ample case law to show that section 7 cannot be violated unless the fundamental principles of justice are respected.

I was in Ottawa in 2001. The then minister of justice was a member from Alberta, Anne McLellan, a former constitutional law professor—I do not know whether she went back to teaching. It was therefore quite surprising that we were being proposed procedural shortcuts like those contained in the bill at the time and which have not been improved since.

In short, the Bloc Québécois has always had three lines of attack when it comes to this bill. First, in 2001, we said that the Criminal Code contained all the necessary provisions for dealing with possible security threats by individuals who are not Canadian citizens. This could be handled through the Criminal Code and also through the Immigration and Refugee Protection Act.

In 2001, we already had three major concerns. It is nonetheless reassuring to know that the Supreme Court shared our concerns.

The first concern is about the exception that allows foreign nationals to be arrested without a warrant. This exception can very easily be abused. Anyone who has ever practised law in any capacity has considered the balance that must exist in societies, between the duties of citizens and the responsibility of the state to provide a safe environment for its citizens. Accordingly, if we are to rely on the police, they should, at the very least, be given the authority to intervene with a warrant.

This is a topic that has generated all sorts of rulings. There is even talk about an independent judicial authority and ensuring that a certain number of conditions are met when a warrant is issued. That is easy to understand, since a warrant has the potential to be extremely intrusive. Not only can individuals be arrested, but authorities can interfere in their private lives and go to their homes. The court has said that a home is a man's castle. Obviously, we cannot enter an individual's home without first having done a certain number of compliance checks.

Since 2001, it has been possible to arrest foreign nationals without a warrant previously issued by an independent and impartial court whose judges cannot be removed—except, of course, for misconduct.

I would remind the House that it has nothing to do with the fact that someone is a foreign national, that they do not yet have Canadian citizenship, that they have not been in Canada or Quebec for many years. As we know, concerning the process of obtaining citizenship, from the time a person enters Canada as a political refugee, permanent resident or person in need of protection, it can take many years to be eligible. It takes three years for citizenship, but in some cases, it can take much longer, depending on whether there are any appeals.

What an absurdity, what a violation of rights and how insensitive to introduce in Parliament a legislative framework under which we can appear without a warrant being issued by a legal authority, a court of law, and of course, under the conditions set out in the Criminal Code. What is most worrisome is that when someone is accused of being a threat to national security—the word “national” refers to Canada, but it could also apply to Quebec—it is believed that that individual has a history of terrorism, that he or she has been involved in organized crime and has committed such serious offences that he or she must be considered inadmissible to Canada. Furthermore, we expect that individual to understand the evidence used by a legal authority—in this case, the Minister of Citizenship and Immigration, the Minister of Public Safety or both—to declare him or her inadmissible to Canada. In fact, we expect the individual, whom we are about to declare inadmissible to Canada, to know what evidence exists against him or her.

There was a sort of revolution with regard to procedure in the early 1990s. I am referring to R. v. Stinchcombe. Stinchcombe was an Alberta lawyer who practised business and real estate law, and who committed fraud by making poor investments with the fortune of a client who had retained him. There were a number of appeals.

This case is important in the history of justice because a ruling was given on disclosure of evidence. Since 1992, all evidence held by the Crown must be disclosed to the defence. At times, the evidence could fill the House of Commons. At times, hundreds of thousands of pages have to be disclosed to the defendants. That is why trials can last years and years. This is particularly true in criminal cases.

However, that is part and parcel of the principle of procedural fairness whereby if charges are laid, if an individual is brought before the courts, if he is accused of an offence, he must be apprised of the elements of the proof. That applies to a notebook kept by the police upon the arrest to the most refined investigative techniques. The fact remains that the evidence must be disclosed in full to the defendant who is being accused.

Given that it allows someone to be arrested without a warrant, Bill C-3 strays far from this principle. Not only is the individual arrested without a warrant, but he is told that he will not have access to the evidence which has deprived him of the right to remain in Canada and Quebec. Consider the extent to which this contravenes fundamental legal rights. Consider that depriving an accused of access to evidence is contrary to the tradition of defending rights and procedural fairness.

It is obvious that there are times when the evidence can be sensitive. That is why there are provisions in the Criminal Code. The judge can order a closed doors hearing and request that the media do not have access to information. However, in no way can we support a principle that does not allow an accused person, and particularly someone accused of a criminal offence, the right to know the evidence on which the accusation is made. Why is this principle important? It is important because the right to a full and complete defence is written into the Canadian Charter of Rights and Freedoms, as well as in the Quebec Charter of Human Rights and Freedoms. How could one appoint a solicitor to defend a client if the solicitor does not know all the evidence being used against the accused? Why is it important? It is important because we know that as individual citizens we are not on a level playing field with the government. The government has investigation techniques and police officers and can use infiltration to gather information. There is a whole range of tools that can be used in making an accusation against an individual that are not available to the ordinary person.

I repeat, the Bloc Québécois is not saying that terrorism does not exist or that there are no individuals who could represent a real threat to the security of the country. What we are saying is that it should be possible to set up a legislative regime in which a lawyer under oath has access to the evidence and represents his or her client in a closed-doors context, in a context where there cannot be the same circulation of information as in a regular trial. However, to insist that during all the procedures the accused person can never see the evidence—we do not believe this is acceptable in terms of procedural fairness.

The third questionable point for the Bloc Québécois is the point the member for Marc-Aurèle-Fortin brought out so brilliantly in committee. We know what a formidable attorney the member for Marc-Aurèle-Fortin is. He has made his living as a defence counsel. He has an excellent command of the techniques of cross-examination. How many times have I spoken of his excellent work in the Schreiber-Mulroney affair at the Standing Committee on Access to Information, Privacy and Ethics? He was splendidly supported by our colleague, the member for Saint-Bruno—Saint-Hubert, who is not a lawyer but was still able to extract a confession. She led Mr. Schreiber to confess, as a result of which the Club des ex awarded her the title of one of the most promising parliamentarians; a member with a bright future within the Bloc Québécois. That happened between Christmas and New Year’s Day on the RDI network program Le Club des ex. The host of the program was our old colleague Jean-Pierre Charbonneau, the former provincial member for Borduas. The former Liberal Heritage minister took part and, of course, a former ADQ member of the National Assembly from Lanaudière, Marie Grégoire.

All this to say that our third concern is that people will not only be arrested without a warrant but will not be allowed to see the evidence against them. This means that if the Minister of Citizenship and Immigration or the Minister of Public Safety signs a security certificate, the Federal Court is notified. If the judge, having examined the facts, finds that the rationale in the certificate is reasonable and finds reasonable grounds to believe that the person involved is a danger to Canada, the entire process is initiated. The individual will be arrested and detained, often for considerable periods.

Some people say that the individual can choose to return to his country of origin, but when someone has left that country three, four, five or six years previously and remade his life in Canada, it is not easy to leave. Often, of course, people came here to remake their lives because they feared the possibility of torture and persecution under authoritarian regimes.

There is another problem with Bill C-3. The level of proof required is clearly too low in view of the seriousness of such situations. The Bloc member for Marc-Aurèle-Fortin moved an amendment to require that the evidence be beyond a reasonable doubt, as in any criminal case. But the amendment was rejected. It was a bad decision that had no basis in parliamentary practice and was certainly not justified from the standpoint of the interests of the accused.

How can we possibly be satisfied with a simple level of proof like reasonable doubt when the physical survival of people—including arbitrary imprisonment and detention under very difficult conditions—is at stake? What sense does it make not to require a level of proof equivalent to “beyond a reasonable doubt”, as in any criminal case?

Once again, the hon. member for Marc-Aurèle-Fortin, who is a very experienced parliamentarian, moved amendments but unfortunately they were not discussed. It was decided, quite wrongly, that they were beyond the scope of the bill. That was a very bad decision. We obviously respect the authority of the committee chair. I do not know whether you were asked for advice in the matter, Mr. Speaker. In my opinion, you would have agreed with your clerk and would not have rejected this decision. I should add that the Bloc Québécois challenges it and we think it was an abuse of procedure that is not a credit to the institution.

That being said, I would like to move on to our fourth concern, which is the fact that this bill does not include an obligation to ensure that an individual will not be deported to a country that practices torture before triggering the process by which that individual can be not only detained, deprived of basic freedoms, poorly represented and arrested without charge, but also deported. The bill offers no guarantees in that regard. In cases where the mechanism applies, Canada may use the flawed system that I have been talking about for several minutes now to deport individuals deemed to be a threat to national security. Canada is violating its international obligations by failing to ensure that measures are taken to avoid deporting individuals to countries that practice torture.

This is, therefore, a very bad bill. I do not understand how the Minister of Public Safety can sleep at night after introducing such a terrible bill that stands in stark opposition to our democratic traditions. This will certainly be a blemish on Canada's reputation in the international community and in forums for multilateral debate.

This is a very bad bill, and we cannot support it. We do not understand the Conservative government's intention given that, as I recall, it expressed serious reservations when it was on the opposition benches. Even though the Conservatives supported Ms. McLellan's bill, they were concerned about a number of flaws that remained over time.

Once again, shame on the government for its lack of respect for procedure. I call on all of my colleagues in the House to reject this bill.

[Ken Epp, Conservative, Edmonton—Sherwood Park, AB]

Mr. Speaker, I always enjoy speeches by this member. He is always methodical and as a mathematician I like that. When a person has points, one, two, three, four, I can follow what he is saying and I appreciate his dissertation.

The member has taken great umbrage with the concept that a person can be arrested and not even be told of the evidence. I agree with the member when he says that normally in Canada our justice system provides for an accused to defend himself or herself. That is good. That is the way it ought to be, but this is a very special case.

This is a case where individuals may be plotting terrorist acts against our citizens and against our country. These are people who probably do not know why they were picked up because someone, the colloquial term is snitched, said here are individuals who are a danger to society and turned them over to the authorities.

In this case if the individuals are actually part of a group that is planning some very bad actions in our country, these people, if they knew who it was or how it was that they became known, would undoubtedly get the word back and the informants who provided the information to increase the safety of Canadians could themselves then be a direct target of this group, that is, other people who were not arrested or who have not been arrested yet. Furthermore, it could result in people who are investigating blowing their cover and not being able to complete their investigation of other individuals who are a danger.

We must always make the assumption that people are innocent until proven guilty, but this is a special case and surely we must have room in our justice system to protect ourselves against these people who would engage in such nefarious activities.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, I thank my mathematician colleague, who told me one day that he raised his children by teaching math at night school. I remember him giving a speech in the House in which he said he paid taxes to Mr. Trudeau at the time. I will never forget that speech by such a strict mathematics teacher who obviously loved what he was doing.

However, let us not confuse matters. The Bloc Québécois does not deny that organized terrorist networks exist. I read a book from the UQAM Raoul Dandurand Chair that explains that the major terrorist threats to democracies like ours are often ideology based threats, by people connected with ideologies and often with religious movements. These are people who have very powerful means of representing a threat to our democracies and following through.

However, I do not believe this is a matter of informants. When there is reason to believe that individuals represent a terrorist threat on our soil, it is often because our intelligence services have conducted investigations. These are not individuals who are going to blow the whistle on others, and there is very solid evidence on this.

The very fact that intelligence services have solid evidence on this is why we must ensure that the fair procedures I was talking about come into play. I do not think that means individuals have to stay in Canada; but they have to be informed of the evidence against them. They should have the right to be represented and we have to be certain they are not deported to countries that practice torture. If ever their home country practices torture, they can stay imprisoned here for a very long time.

Again, let us resist the urge to act hastily. There is no good reason for an individual not to be informed of the evidence against them if that evidence will incriminate them for a very long time.

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

Mr. Speaker, let me say for my colleague that I guess the problem that I have with these dangerous individuals with whom we are supposedly dealing through the security certificate process is that if they are indeed that dangerous then certainly we should be bringing them to justice, but just getting them out of the country does not keep anybody safe. It does not keep Canada safe. It does not keep people in other countries safe.

Just to underline the importance of disclosure of information, and I would like to get my friend's comment on it, there was a situation in Toronto where a number of charges were laid against I believe a half a dozen police officers. That situation went on for something like 10 years. The charges were corruption charges. This is a serious case of corruption in the police force, which has huge implications for our judicial system, yet Justice Nordheimer struck down the charges because the Crown did not inform the defence attorneys of the case against them.

There is no question in my mind that this is a most serious charge against police officers because it strikes right at the heart of our judicial system, but that is how important the disclosure of evidence is; that is why the justice struck it down. I wonder if my friend would comment.

[The Acting Speaker, Royal Galipeau]

The hon. member for Hochelaga has three and a half minutes left for questions and comments. He may be interested to know that the hon. member for Vancouver Island North would also like to ask him a question.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, I would not like to pass over that question. I am not familiar with the example raised by our hon. colleague, but he is quite right to remind the House that we all benefit from a process that is carried out fairly, rigorously and according to the rules.

[Catherine Bell, NDP, Vancouver Island North, BC]

Mr. Speaker, I want to let my colleague from the Bloc know that I will not be supporting the bill. My NDP colleagues and I see this bill as a violation of human rights. It circumvents the criminal justice system. Even the Supreme Court of Canada decided that it was unconstitutional.

However, I want to ask a very short question of my colleague. When we are dealing with issues of terrorism, national security, espionage and organized crime, we in the NDP feel they should be dealt with through the use of the Criminal Code and not through a lesser immigration process. If there is a problem with the Criminal Code's ability to deal with these types of crimes, then these problems with the Criminal Code should be addressed and fixed.

Would my hon. colleague agree with us that these are some of the things that must be addressed to move forward rather than putting in place legislation that violates human rights and the criminal justice system?

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, I appreciate my colleague's question and I assure her that I agree with her 100%. Moreover, since 2001, we have been reiterating in this House that the Criminal Code has all the provisions we need to effectively fight terrorist threats. She is quite right to say that that is the appropriate tool. It make no sense that for a threat that only recently appeared—thankfully, for us—we would want to create such a draconian exception in terms of the reality we face regarding terrorism, as we have known it since 2001.

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, I was going to say that I am pleased to rise in the House, but I am not sure if I am pleased to rise in the House today over this particular discussion. However, it is important to rise in the House today to speak to Bill C-3.

I am proud that the members of the NDP, along with some others, are standing in opposition to what is really fundamentally flawed legislation.

Others have spoken to this, but from the beginning, security certificates have been the wrong way to deal with an approach to terrorism, espionage and organized crime. The member for Vancouver South, although saying that his party will be supporting the bill, did say that a method such as the SIRC system would have been a preferable approach to take to this as opposed to this redone, renewed and recycled security certificate bill that we have before us.

When the security certificates were shut down in February 2007, I think many people were very pleased to see what they hoped would be the end of a really defective process. That did not happen. People are very disappointed that the government has chosen to reintroduce security certificates.

The Liberal opposition members have noted on a number of occasions that this is not the bill they would have brought forward, that it probably could have been a better bill and that there were other systems, but they are going to support it anyway because of the timeframe.

The bill was struck down in February of 2007. Its replacement was tabled on October 22, 2007. If this is such a grave and grievous threat to Canada, and I think we will all agree that terrorism, organized crime and espionage are such threats, why would the government wait nine months in order to bring this forward? Why would the government not have brought the House back in September when it was due to come back and allowed for further opportunity to debate it at committee and to call witnesses?

It is very puzzling that we found ourselves seeing it for the first time at the end of October. Witnesses who might have wished to present before the committee could not. Now I hear people suggest that it was not really what they would have done but that we have to pass it now because we have a time crunch. I understand the time crunch, but I am not sure that it is the best reason for passing flawed legislation. To me, the fact that it was not dealt with earlier is something that, to be quite honest, I simply fail to understand.

As well, I was bothered by the examination of the legislation at committee. Having waited nine months to reintroduce this, the minister then came to committee and said, “Please hurry up and pass this and please move it quickly through committee because it will expire in February”.

As a result, the Conservatives established a timeline at committee that excluded dozens of witnesses, among them experts, advocates and people with direct experience of the security certificate process. People spoke up. They said that this was not acceptable. They said that there were many more people from whom we needed to hear. Indeed, there were names added to the list of people testifying before the committee.

Again, what was interesting was that 17 witnesses testified before the public safety committee, of whom 13 were opposed to Bill C-3. There were 20 written submissions, and all but one said that Bill C-3 was flawed. Having heard that from all of these witnesses, for some members it was as if they thanked the witnesses very much for their information, but they had already decided the way they were going to go on it, and the way they were going to go was security certificates.

They had made up their minds, and while they said thanks to witnesses for coming in with their presentations, it was not going to influence their thinking. I think the Conservative members on the committee, and maybe the Liberals as well, although they acknowledged that there were some problems, ignored expert testimony and advice.

The basic premise of the right to defend oneself is interesting. It is one that has been raised here frequently. It is one that people who are opposed to this legislation are very concerned about. I heard an earlier speaker say that normally we assume that people are innocent until proven guilty, except in this case, where people are presumed guilty until proven innocent, except that we do not give them the tools to prove themselves innocent. They are not given access to the information to prove that they might be innocent, but we know that in at least one situation there was information that would have caused a different outcome.

It is interesting to know what we are saying about somebody who, we have said, is involved in terrorism. Terrorism is the example that gets used the most, but it could be espionage or gang crime as well. It is interesting to know that what we are saying is that we will send the person back to his or her own country to continue his or her work, so to speak. If that indeed is the individual's work, then he or she will perpetuate that, perhaps teach other people, come back to Canada and try again.

How Canada would be any safer as a result of that I do not know. Why would Canada not be safer if it used the Criminal Code to put people in jail? Surely that is what Canadian citizens expect of us in terms of protecting this country: that if people commit or are about to commit a crime of that nature, a crime that is a danger to the citizens of our country, they would be put in jail for a very long time so that their activity is cut off and they will not be engaged in that activity. I think that the right to defend has been totally suspended for this piece of legislation.

Another issue the NDP has with this legislation is the one around civil liberties. Public safety seems to me to be about a balance between freedom and security. There is no question about it: Canadians want to know that they are secure. They have every right to know that, but it is a balance. This legislation is just as imbalanced as the last piece of legislation, which was struck down by the Supreme Court.

Most lawyers who have expertise in this area have said they believe the legislation will be struck down again if it is taken before the Supreme Court. I am quite certain there are lawyers who will be prepared to take this back to the Supreme Court and we will be back here having the discussion again about why this does not work and why we should be including this in the Criminal Code with a different kind of system.

The provision of a special advocate, as is done by the U.K. and New Zealand, is, people have said, a compromise that will work, but in the U.K. there have been many challenges as to the effectiveness of the special advocates and the resources they have.

As for the lawyers here, 50 lawyers have applied here and I think people are expecting that many more, but the lawyers I have talked to do not want be in the position of knowing that if they see something in the file which would be of benefit to the detainee but needs further clarification, they cannot do it. Yes, lawyers can speak with the detainee and the detainee's counsel and then they have the right to see the file, but if they see something in the file that would be of benefit to the detainee and needs further clarification, they cannot do it. For one thing, they do not have the resources to do the research. Second, they do not have the ability to have that discussion with the detainee.

There are ways, and most lawyers will tell us that, of asking questions without giving away that information which other speakers indicated they were concerned about, information that would indicate to others that their cover had been blown or who had reported on them. We know that lawyers are able to ask questions. We saw that in the Maher Arar case, where they discovered later that some very simple questions would have been able to clarify the fact that he indeed was not involved in the activities that they thought he was.

Others have spoken of Ian MacDonald. Mr. MacDonald was a special advocate in the U.K. system. He quit over the failure of the British system to address the civil, justice and human rights needs of people who had been detained. Knowing that, the government still has chosen to adopt that system. People have said that under this system, we will still be able to ensure evidence will be brought forward that will not keep somebody in detention because we will not make errors in that way.

I was at an event last night where Maher Arar and his wife, Monia Mazigh, were awarded the British Columbia Civil Liberties Award. As people have read, Maher Arar was rendered back to Syria by U.S. border agents where he faced torture until his return to Canada a year later. Thanks to the work of Commissioner Dennis O'Connor and the Arar inquiry, Canadians now know that Mr. Arar's experience was due to errors by Canadian officials who placed excessive emphasis on national security at the expense of civil liberties and human rights. As a result of the work of many people and Monia Mazigh and his children, that was rectified. However, not everybody has that kind of support system available to them.

We know errors are made. We know information can be suddenly condensed. The original proceedings are gone and are now in a more modified form. Perhaps some evidence that could be used is suddenly not available to people. We see a bit of that now in the case in front of the court.

The Conservatives know the special advocate system is flawed. Mr. MacDonald has spoken in front of committee. He has shared his criticism of the special advocate process.

Five individuals have been confined under security certificates. One person, Mr. Almrei, is still in detention. The other four men, Mohammad Mahjoub, Mahmoud Jaballah, Adil Charkaoui and Mohamed Harkat , are on bail with sureties on conditions that are set up almost to fail. If the men go to a mall and they have to go to the bathroom, their sureties have to go with them. It does not matter if it is the women's washroom or where it is. They have no breathing room. It is almost as if these conditions are set to fail.

If these people are guilty, they should be on strict bail conditions, but not on conditions set to fail. We do not do that to people in our justice system. If these people are guilty, we must have an opportunity to prove they have done what they are accused of doing.

Even if all civil liberties were protected in the legislation, security certificates are still legally the wrong way to go. Why would this not be done under criminal legislation? Can we not change our criminal legislation? It has a very different level of evidence. It has a very different level of seriousness in terms of how evidence is presented and the standard which one has to meet. It would be a much better method to deal with these instances.

We have seen the consequences of those kinds of allegations. We owe it to people to subject them to the highest possible standards of our justice system, not a lesser process. This is why I and the NDP caucus are fundamentally oppose to the legislation, as are the Bloc Québécois and at least a couple of members of the Liberal opposition.

In further debate I hope other people will be able to expand on some of these points. For these men and their families, to deny them the right to defend themselves, to not tell someone why they are charged, to be unable to produce the evidence for them or their counsel and to expect a special advocate to look at it and then be unable to use it in any significant way for that detainee is outside the realm of any understanding I think Canadians have of human and civil rights and the responsibilities of the justice system.

[Gord Brown, Conservative, Leeds—Grenville, ON]

Mr. Speaker, I listened quite intently to the hon. member's discussion about the security certificates bill. I sit on the public safety and national security committee with the hon. member. She knows that the Supreme Court did not rule that security certificates were unconstitutional, but that changes were required, changes that were brought in as part of the government legislation, which has been supported in the House.

What does the hon. member have to say about the fact that many out there are saying this is unconstitutional? Also, what does the hon. member have to say about the fact that we had two people, who were subject to security certificates, in front of the committee?

As a member of the committee, I have received letters from the public who said the committee did not receive proper information, that people were denied the ability to come in front of committee and that people subject to security certificates did not have the opportunity to come before committee. However, Mohamed Harkat and Adil Charkaoui were in front of the committee. They did tell us how they felt about the process.

We know there is opposition to the whole security certificate regime, but the people who were subject to those security certificates were allowed to come in front of the committee, which would be considered quite extraordinary in any country in this world. The fact that they were subject to security certificates, or their equivalent in another country, and they were in front of a government committee with the opportunity to comment on those, I find quite extraordinary. I know most Canadians would find that extraordinary as well.

What does the hon. member have to say about those two points?

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, I am not sure I understand the first question on why it is considered unconstitutional. I talked about why it is considered unconstitutional.

Let us be clear. The Supreme Court did strike it down. The Supreme Court said that it had to be changed to better reflect and meet the civil and justice rights of individuals. It did not send it back and said that if it were polished up a bit, it would be okay. The court said that it did not work for the people who were being detained.

The fact that the member is getting many letters asking questions about why more people are not appearing before the committee says Canadians are following this. People want to know where the evidence and information has come from, on which the committee has based its decision.

Yes, two people, who have been detained under Bill C-3 certificates and are on bail, came before committee. I did not suggest for a minute that there had not been an opportunity for those two people to be there. I found their presentations helpful, as I found the presentations of many people who came. I do not think anybody suggested that those people were unable to make presentations. It would seem to me reasonable that they were able to do so. If it is extraordinary that it has happened in Canada, then so be it and good for Canada.

The fact they appeared is fine. They have the right. We were talking about the impact on their lives and the lives of their families. I more than acknowledge that those people had the right to appear. Those are still the same people who do not have the right to know the information that is being used against them. I say it is unconstitutional because the Supreme Court did.

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

Mr. Speaker, the member for Leeds—Grenville stood in this chamber, and he is not the first member of the Conservative Party to do so, and said that the security certificates were not judged unconstitutional. They were judged unconstitutional by the Supreme Court. What the Supreme Court said was the government had a year to fix it. If it did not fix it within the year, it would be struck down.

I find it incredible that members of the Conservative Party would say things that fly in the face of the truth, in the face of the Supreme Court. If they want to see how unconstitutional it is, do not pass the bill for another couple of weeks and then see it get struck down.

The member did misunderstand what he said. The member said that it was not unconstitutional and the Supreme Court might have said that it was unconstitutional. Could the member comment on that because the court definitely said that?

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, I always appreciate the opportunity to rise and speak again to something about which I care. I am not necessarily able to follow that question any more than I did the others, but the member is correct.

The Supreme Court said that if we did not fix this, it would be struck down. Legislation that is constitutional will not be struck down. The court has said that it is not in accordance with the Constitution of Canada. It has said that if we do not fix it within a year, it will be struck down.

If the Conservative members are saying that security certificates are constitutional and this is just suggestion by the Supreme Court to kind of make it better, then that is somewhat flawed, given the fact that they have said if we do not fix it in three weeks, the legislation will no longer exist. I do not think they would say that about legislation they consider to be constitutional.

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

Mr. Speaker, the hon. member for Surrey North is a member of the committee. She joined the committee later this session after we had a number of presentations to the committee. I know she is an active participant and I understand her opposition to the bill.

Does the member understand that the security certificate is the ultimate end of the deportation process? For those people who are deemed not eligible to live in this country there is a removal process. They have gone through the court system. It is not just at the end of the security certificate that there is a court process. There are processes all along.

What would her solution be for those people who are deemed to be a danger or a threat to Canada's safety and security? How would she deal with them? Where would she put them? Would she allow them to stay in this country? Would she put them in prison for a long time or would she find some other home for them? I wonder what her solution would be if we did not have security certificates.

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, I thank the member for his always very helpful participation and interventions in the committee.

Other models have been suggested other than this. I would go back to using the SIRC model, which was recommended by a number of people who are very concerned about the security certificate model but who would support the SIRC model being used.

What would we do with those people? If those people are truly guilty of having committed terrorist activities, I would far rather have them in jail here for a long period of time where I know they will not be engaging in those activities, than simply sending them back to their country of origin where they will continue to either work by themselves, which is unlikely, or work with a broader group of terrorists, organized crime or engage in espionage.

I do not see anything wrong with them being in prison for long lengths of time if the evidence supports that. What I cannot deal with is keeping someone in jail for seven years without that person having the ability to know his or her crime, what the charge is and what evidence is being used. That is a fundamental abridgment of a person's human rights.

Let us be clear, terrorism is frightening and we should do everything we can to ensure Canadians know that every member in this House takes this incredibly seriously. However, I do not think security certificates are the only model for that. There could be the SIRC model and there could be prison terms.

[The Acting Speaker, Royal Galipeau]

The hon. member for West Vancouver—Sunshine Coast—Sea to Sky Country has the floor for a short question.

[Blair Wilson, Independent, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Mr. Speaker, it is an honour to join in the debate on this important legislation, Bill C-3, An Act to amend the Immigration and Refugee Protection Act.

While this specific bill would not be my first choice when it comes to drafting legislation to better deal with the process surrounding security certificates that the Supreme Court of Canada has declared unconstitutional, it is, nonetheless, the bill we have before the House today.

However, I take great comfort in the fact that the Liberal Party and my colleagues on the committee have passed a number of critical amendments to significantly improve this bill, amendments that, first, will remove any and all evidence that was obtained as a result of torture; second, the retention of the solicitor-client privilege between the special advocate and the accused; and third, the inclusion of the provision that allows the accused to choose his or her special advocate.

While this bill is not perfect, it does include those three important Liberal amendments which I feel would significantly improve the bill.

Does my colleague across the way not think that these important Liberal amendments will go a long way in improving the bill and will help to safeguard both national security for Canadians and, at the same time, respect our Charter of Rights and Freedoms?

[The Acting Speaker, Royal Galipeau]

The hon. member for Surrey North will forgive my smile because I had warned the hon. member that it was for a short question. She will understand, a short response.

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, do you want me to give a short answer?

[The Acting Speaker, Royal Galipeau]

Yes.

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, I can see the headline now, “NDP agrees that Liberals have assisted to make this a much better bill”.

[Gord Brown, Conservative, Leeds—Grenville, ON]

She has the news release there.

[Penny Priddy, NDP, Surrey North, BC]

Is it already out?

If someone believes in a security certificate process, absolutely, but, fundamentally, we do not believe in that process.

Have those three amendments around torture and so on made that bill better? If that is the system the member believes in, then it probably has. However, we fundamentally oppose the security certificate process. This is not about whether somebody made it better. It is about the fact that we believe there needs to be a different system.

[Ken Epp, Conservative, Edmonton—Sherwood Park, AB]

Mr. Speaker, I am delighted to speak to this particular bill.

I want to say at the outset, and actually will be almost the brevity of my speech, that I support the bill wholeheartedly. It is a pragmatic necessity in the world in which we live. I think our duty as parliamentarians and as the House of Commons is to give speedy passage to the bill so we can continue, under the provisions of Bill C-3, to provide security and safety to Canadian citizens. That is a paramount duty and responsibility of government.

Therefore, I would urge all members of Parliament to give speedy passage to the bill so it can go through the process and become law prior to the deadline of February 23 so we can achieve what needs to be done.

In an attempt to help move the agenda forward and to get the bill passed, I move:

That this question be now put.

[The Acting Speaker, Royal Galipeau]

The motion is in order.

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

Strictly, Mr. Speaker, no to adjourning debates.

As the member said, we are talking about an important piece of legislation and he is trying to cut off debate. No. That just will not fly. That is just not the way we operate in this chamber nor should we operate in this chamber.

[Ken Epp, Conservative, Edmonton—Sherwood Park, AB]

Mr. Speaker, I have been in the House for over 14 years, as has the member opposite. I think we were elected on the same day in 1993.

Sitting in opposition, where the member now is, and observing the Liberal government over those years when it had a majority, and to now make any noise whatsoever about stifling or controlling debate in the House when the Liberals had a majority, my goodness, it is unbelievable.

However, I am sure all members understand that the reason for this motion is very clear. We have a deadline to meet. We must ensure that the people who have been arrested and who have been detained under these certificates are detained in order to provide safety.

I appeal to all members of the House, including the member who just spoke, to give the bill speedy passage, let it proceed through its normal stages and become law so our citizens can be secure in our country against these external threats.

[Alexa McDonough, NDP, Halifax, NS]

Mr. Speaker, I am genuinely taken aback by the comments made by the member for Edmonton—Sherwood Park.

On the one hand, we are dealing with legislation that the government could and should have brought in a good deal sooner. It should have given ample time for full and serious consideration of the legislation now before us but it made a decision to delay to virtually the 11th hour before it started to confront us, the members of the opposition, with the fact that this is urgent because we have a deadline that was set by the Supreme Court of Canada almost one year ago.

I do not want to be unfair to the member. I know him to be a conscientious member. I disagree with him fundamentally on a great many things but on occasion I have had reason to actually agree with him on some things. However, I am genuinely taken aback. I think Canadians would find it shocking if we were to ram ahead and put into place the provisions of something that was struck down by the Supreme Court of Canada because it was found to be a very serious flaw in a piece of legislation that could cause major problems for people.

I believe I heard the member for Edmonton—Sherwood Park a few moments ago say that we needed to be clear here, that we are talking about persons who are a danger to society and we are talking about protecting the public against such people.

We are talking about putting in place the kind of legal provisions that do not try to convict people and condemn them without there being a fair and legal process. Has nothing been learned by the government from the horrors or the Arar fiasco? Has nothing been heard from the counsel offered by the vast majority of members who appeared before the public safety committee and who said that this was severely flawed legislation and that it, too, would likely to be struck down by the Supreme Court?

How can the member turn a blind eye and a deaf ear to the overwhelming evidence that was brought before the very committee that he sits on for the purpose of weighing the legislation that is before him and before this House?

[Ken Epp, Conservative, Edmonton—Sherwood Park, AB]

Mr. Speaker, it is probably true that it would have been better if we would have had a few more weeks to debate this. I will not argue that, recognizing the input from all of the members of Parliament in this esteemed chamber. However, I would like to point out that to draft legislation, especially when it is under the scrutiny of the Supreme Court, it takes time and it takes a great deal of care.

One cannot just wake up one day and decide to move a bill in the House whether one is the government or not. I am sure the hon. member who just spoke will probably never have any experience of actually being in government, but being here is, frankly, quite different from being in opposition. The onus is on the government to come up with legislation that does meet muster. This has been dealt with by our justice department and by the legal minds in that department. We sincerely hope that the fix they have put into the legislation, as required by the Supreme Court of Canada, will meet the approval of the courts and meet the approval of the people.

I also need to interject that some of the approaches that the NDP members are taking, not only here but also in terms of other justice issues, make me wonder whether they really are first and foremost on the side of law-abiding citizens of this country. Almost all of their debate is on the other side when someone does something wrong or contemplates something wrong; the something that is a distress and a danger to our society. I would urge the members of the NDP to stand up for the citizens more than for the criminals.

I like to live in a country where, if I am falsely accused, I have a right to defend myself. However, if someone is actually guilty, it is the job of our system to find him or her guilty and to hold him or her accountable. That is what we are all about here.

I really wish that the NDP would stop thinking of our law enforcement agencies, our police, our undercover people, our courts and the lawyers who work in those courts as the enemies. They are not the enemies. The real enemies are those who would destroy our society through violence.

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Speaker, I take a little exception to the comments made by the member for Edmonton—Sherwood Park about the NDP's concern with the criminals.

The purpose of our stand here is to ensure that we have a process where the citizen can be either proven guilty or innocent within the bounds of our justice system and then be declared a criminal or, as in the case we have seen already over the past two years with the Maher Arar situation, be found innocent. We have to be very careful with this.

Our justice system is what our fathers fought in wars for and what we stand up for as well. We stand up for the rights of our citizens. Our citizens have rights until they are proven guilty.

[Ken Epp, Conservative, Edmonton—Sherwood Park, AB]

Mr. Speaker, I would like to point out with great clarity that the people addressed by this bill are not citizens of our country. Our primary responsibility is to protect Canadian citizens.

The other thing is that this bill is a correction to what was lacking, as identified by the court, in the previous legislation. This provides that people who are so accused would have a process whereby, outside of the people who arrested or detained them, someone independent from that such as a judge or an appointed lawyer who will operate in secret, in closed quarters, in camera, would hear the charges.

Frankly, I do not know why members of the House would fail to trust them. We have to have some trust in our own people, in our own system. They will not keep a person detained who in fact is innocent. That is why this process was brought in.

Unfortunately, we are dealing with people who have been arrested. I do not believe that our people just willy-nilly, at random, take a person off the street and say, “There is one. Let's arrest him”. I do not believe that.

In every instance, these people have had evidence collected against them and they are arrested with grounds. Bill C-3 corrects the deficiency so that there is a process, while at the same time addressing the problem of being falsely accused--

[The Acting Speaker, Royal Galipeau]

Resuming debate, the hon. member for Kitchener—Waterloo.

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

Mr. Speaker, I will switch the order in which I was to speak because I just find it incredible that a member of Parliament would stand up and say, “Let us not bother with the niceties. If the police say they are guilty, then they are guilty”. Has the member not heard of Steven Truscott? Has he not heard of Guy Paul Morin? Has he not heard of Donald Marshall? The list goes on.

The member should check out subsection 11(d) of the charter. It is a fundamental right. It says:

Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

When the parliamentary secretary started talking about the bill, he mentioned the case of a person who allegedly committed industrial espionage. That is a very serious charge. That can actually have an economic impact on Canada. It could cause hardship for Canada. We could lose intellectual property.

That being the case, it seems to me that this person should have been charged and if found guilty, should have been put in custody and held for a period of time. By the time that person got out, the intellectual property taken would no longer be of the same value as it would be if we let the individual go right away.

The whole line of reasoning also bothered me because we do not want Canada to get the reputation that it is a country where people can commit a crime, get caught, and all that would happen is that they would get picked up and be sent out of the country, and no one would have to do any jail time. Surely there is something wrong with that logic. However, the parliamentary secretary from the Conservative Party stood in the House and said that. It seems to me that if somebody commits a crime, then there is an appropriate way of dealing with the person.

I will now get back to the original speech I wanted to give. Back in the House, during the course of the first world war, a bill was debated that dealt with the internment, the naturalization and the disenfranchisement of people involved on the side of the Austro-Hungarian Empire. The Ukrainian-Canadians were particularly damaged by it.

At the time of the debate, the following was said:

It is quite probable that if this proposal becomes law the alleged “foreigners” and hitherto “naturalized Canadians” will bear their reproach meekly, but they will have sown in their hearts the seeds of a bitterness that can never be extirpated. The man whose honour has been mistrusted and who has been singled out for national humiliation, will remember it and sooner or later it will have to be atoned for.

That happened during the first world war. Of course, we have had apologies coming from the government to Canadians of Ukrainian background for those who were interned. It was not just the Austro-Hungarian people who were discriminated against. We discriminated against all sorts of other people. We all know the story of the Chinese-Canadians. In fact, we just apologized for the head tax.

We know about the Asian exclusion act, we dealt with that. We know about the internment of Japanese Canadians during the second world war for which the government has apologized. We know about what happened to S.S. St. Louis and how it was turned away and Jews were sent to the gas chambers in Europe. We know about that.

We know that we used to have a racist immigration policy and it was because of that that we ultimately enacted the Charter of Rights and Freedoms on April 17, 1982. We did that because we wanted to make sure that injustices of the past did not carry us forward into the future.

A very important section of the Charter of Rights and Freedoms relates to the legal section. Section 7 states:

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.

Section 8 states:

Everyone has the right to be secure against unreasonable search or seizure.

Section 9 states:

Everyone has the right not to be arbitrarily detained or imprisoned.

Section 10 states:

Everyone has the right on arrest or detention:

a) to be informed promptly of the reasons therefor;

b) to retain and instruct counsel without delay and to be informed of that right; and

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

The other day a very serious police corruption case which has been ongoing for 10 years died and the judge ruled that a fair trial was violated by excessive delays on the part of the Crown. The Crown failed to inform the accused, I believe there were six of them, concerning the charges against them.

In a public policy perspective, this is a very serious matter. When a police officer is charged, that is the very basis of our justice system. We want to make sure it gets a full hearing and a judgment is made on it, either guilt or innocence. It is a very unsatisfactory way of handling it. But the principle of disclosing evidence to the accused is so important that the case was dismissed by the judge. I am not sure what is going to happen on appeal, but it really goes to underline this fact when we are talking about the security certificates.

The security certificate process has been around since 1977 and in total we have dealt with 28 cases. We have spent a lot of energy and a lot of money dealing with the security certificate process than if we were dealing with the criminal justice process.

We have a special Guantanamo north holding facility in Kingston where we keep our security certificate detainees. This facility cost $3.4 million to build and to house six people. Right now there is one person there and there is a budget of $2 million annually for the facility. So it is a very expensive and unsatisfactory process. The other people who have been issued security certificates are essentially under house arrest in their community.

One of the issues we in this chamber have to get our minds around is that by following the Charter of Rights and Freedoms which we enacted, we are not weakening our society, we are very much strengthening it.

I think that this is an important consideration for members, particularly in light of the events of 9/11. I believe that the best way we can possibly deal with security issues is to make sure we have the kind of society that is inclusive, where all Canadians buy into it and all groups in Canada buy into it because we are all in the same boat as far as our security is concerned. We cannot single out any group the way we have done in the past with Ukrainian Canadians, Chinese Canadians, the Sikhs, Japanese Canadians and the groups go on an on. We have to make sure that all of us are in an inclusive society, where we are all in the same boat and we are all rowing in the same direction.

The Liberal Party critic on this bill mentioned the need for necessary evil. It is interesting that he used the term “necessary evil” because I was just reading a book entitled The Lesser Evil: Political Ethics in an Age of Terror. It is quite a good book. It truly makes one think about how to balance security for the whole versus security for the individual and what are the trade-offs. The author states:

Legislatures can take hearings on sensitive intelligent matters in camera; judges can demand that the state prosecutors justify secret hearings or the withholding of information from the defence. The redlines should be clear: it is never justified to confine or deport an alien or citizen in secret proceedings. Openness in any process where human liberty is at stake is simply definitional of what a democracy is.

Essentially, I am saying that this is a real challenge for our society and we are much better off if we operate in accordance with the charter and do not violate any of its sections.

There is no question that a democratic society has to defend itself, but we defend ourselves much better when we take people who are actually dangerous to our society at large, dangerous to peace, order and good government, dangerous to individuals and put those folks where they belong, which is in jail.

Picking someone up in this day and age who we say is that dangerous and getting him or her out of the country does not make Canada safer. We do not have the kind of borders that keep people out as such. What we want to do with someone who is dangerous is to put the person on trial. If the person is found to be guilty, we hold the person in custody. That is how we should deal with dangerous individuals.

For the life of me I cannot understand how many of my colleagues on the other side fail to understand that the security certificate regime was found to violate section 7 of the Canadian Charter of Rights and Freedoms, which makes it unconstitutional. I notice that we have the Parliamentary Secretary to the Minister of Citizenship and Immigration in the House which is good. He is a lawyer and he can definitely inform his colleagues on what it means to violate section 7 of the charter and what the court judgment actually said.

We would show a great deal of maturity if would let this piece of legislation lapse and if we would get rid of the security certificate process and put money into enforcement. There are thousands of people that the government is actually trying to get rid of legitimately, but it cannot deal with those people because the government has created a crisis on the Immigration and Refugee Board and in the Immigration Appeal Division. In those cases where there are people with status in Canada who are actually a risk to Canadian society, they cannot be deported. They cannot get hearings before the Immigration Appeal Division because the government has created a crisis there.

On one hand, there are thousands of people whom the government is legitimately trying to get rid of because of criminality and other issues and that is not happening because the IRB members have not been appointed. A crisis has been created because of that shortage. We are dealing with thousands of people, which would greatly impact on the safety of Canadians. On the other hand, the government is wasting a great deal of time and resources in trying to deal with something that is going to apply to very few people and something that has not complied with the Charter of Rights and Freedoms.

Having heard the judgment of the Supreme Court, for 26 years the security certificates have been operating unconstitutionally and it is time to let that whole process die. Let us reinforce and strengthen the charter and let the government ensure that there are quick hearings at the Immigration Appeal Division so the thousands of people we are legitimately trying to get out of the country can be removed and they are not given protection by a government that has created a crisis in enforcement in that regard.

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

Mr. Speaker, I would like to make a couple of points.

First, the legislation indicates that the advocate's role of course is to protect the interests of the permanent resident or foreign national. The special advocate, which did not exist before but would exist now, could challenge the minister's claim that disclosure of information or other evidence would be injurious to national security or would endanger the safety of any person.

Would the member agree that in some cases the release of information may be injurious to national security or may endanger the safety of persons? Does he not envision that happening at any time?

Second, a special advocate may make oral representations or written submissions with respect to the information or other evidence provided. He may participate and cross-examine witnesses who testify during any part of the proceeding. He may exercise, with the judge's discretion, any other powers that are necessary to protect the interests of the permanent resident or foreign national. Those are the kinds of things the special advocate can do: cross-examination, testing the evidence, and weighing the relevance.

Would the member agree with me that the special advocate did not exist in the previous legislation, that it now exists and it provides a series of things that the advocate may do to protect the interests of the foreign national that did not exist before? Would he not agree with me that those, would have to be better than what was before, to a considerable degree?

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

Mr. Speaker, I was hoping my colleague the parliamentary secretary would stand in the House and say that the courts found it to be unconstitutional. I regret he did not take up the challenge.

Is this better than it was before? Yes, I will say it is somewhat better than it was before. That is number one. This is the British model. We heard evidence from Ian Macdonald, a British lawyer who used to take part in the British model. He gave up doing the security certificate process because he said it did not work satisfactorily.

Clearly, if the Conservative government wanted to further improve the security certificate process, it could have picked up on the suggestions by the Liberals and gone with the SIRC model, which it chose not to do.

Let me express my disappointment that the parliamentary secretary did not stand in his place and tell the House that the Government of Canada has created a crisis on the Immigration and Refugee Board, which has created a huge backlog in the Immigration Appeal Division. There are thousands of people whom we should legitimately be getting out of the country because they have broken laws and have serious criminality issues, and not being citizens can be dealt with. However, those cases cannot be dealt with because prior to being able to deport permanent residents, they have a right to a hearing before the Immigration Appeal Division and there is a real crisis there.

If the parliamentary secretary were to say to me that the government is going to address that, that would go so much further for the security of Canadians than this bill would, which by the government's own admission, applied to 28 people in the last 30 years. We heard that industrial saboteurs were given a get out of jail free card and airfare out of the country when they should be doing time for their crime.

[Alexa McDonough, NDP, Halifax, NS]

Mr. Speaker, I appreciate the opportunity to speak to Bill C-3, which deals with security certificates.

Mr. Speaker, I look forward to sharing my time with the member for Hamilton East—Stoney Creek.

I have to say that I already was very concerned about the legislation that is now before the House. If we just take a moment to remember, it is legislation that aims and purports to fix flawed legislation that was struck down by the Supreme Court for some very good reasons. Now what we have is flawed legislation to replace the flawed legislation.

The legislation that has now been introduced by the Conservatives has been left really until the last minute. I think they are hoping that some kind of fearmongering and trying to muster public opinion will actually put pressure on members of this House to cave to the notion that we should cut debate short and we should just ram it through without critiquing it, which is actually what the parliamentary secretary proposed a little while ago, I have to say to my surprise and horror.

When I heard the comments that he was making in his defence of this flawed legislation, I just could not believe that members of this House, and probably he is representative of his colleagues, have learned absolutely nothing from the very problematic situations that have been created. Frankly, to be honest, many of them were created by the previous Liberal government, but in the instance of security certificates, these have been in place for a very long time.

What has come to light is that when people are placed under suspicion of possibly having engaged in some kind of terrorist activity, a great many fears flood to the fore and people seem quite prepared to say, “Let us just trample on human rights. Let us suspend civil liberties. Let us throw due process on to the scrap heap. Let us be satisfied that we are going to make some mistakes”. Without due process we will never know for sure. We will just entrap some people who may be completely innocent, and we will never have a way of knowing whether that is the case, because those people will have virtually no rights whatsoever to due process under the law.

I have had many occasions over the last several years since 9/11 to recall the prophetic, profound warnings of a very courageous member of the U.S. Congress who stated that in the attempt to defeat terrorism, let us not become the evil we deplore.

I consider that it is succumbing to evil, that it is embodying evil to say that we do not owe the same kind of due process to every single human being who comes before our courts, to ensure that they are not wrongly convicted, and to ensure that any conviction takes place in a court of law with due process and not based on rumours, suspicions, prejudices, Islamophobia, or any other form of hatred. I consider that it is all the more reason for us to take even more time to be cautious about what kind of legislation we put in place.

My colleague from Surrey North, the public security critic in the NDP caucus, has very aptly cited the instance of Maher Arar and the courageous battle that was conducted to clear him of exactly the kinds of prejudices, presumptions and condemnation. He was placed under suspicion, not through security certificates but through the unbelievable events that resulted in his being spirited away from Canada because of information that was wrongly provided by Canadian authorities to American authorities, and in turn American authorities were prepared to send him off to Syria to be tortured.

It seems to me that it is a particularly appropriate time for us to take a few moments to think about the honour that was bestowed on Maher Arar and Monia Mazigh last night at a very well-attended event addressed by a previous ambassador of Canada who gave distinguished service to the United Nations. What it recognized is that all of us are indebted to the courageous struggle that Monia Mazigh engaged in to bring her husband home. Calmly, clearly, simply, but profoundly, she asked for her husband Maher Arar to be returned home to Canada, to be returned home to his family, and to be returned home to justice.

Let me say again that this did not happen under the security certificates. Effectively, he was tried and convicted in the court of public opinion and was treated without due process, even by the authorities, and perhaps especially by the authorities in this climate. I remember how infuriated I was when cabinet ministers in the previous Liberal government were prepared to ask me if I was not worried that if he was found to be a terrorist I would be tarnishing my own reputation. My reaction was that this will never be allowed to be a fear as long as I live and breathe when someone is placed under suspicion without the benefit of due process.

Let us take a few minutes to think calmly about what it is that we are discussing here today. I am trying to be calm, but I feel very provoked by the comments made by some members in the House over the last while. Those comments show that nothing has been learned from the horrible events that have been visited on the lives of too many people because of the suspension of due process. That goes to the heart of what our Supreme Court exists to do. It exists to ensure due process and to strike down the law when it finds that due process is not assured.

I know that there will be some argument made about the fact that some other countries have now put this kind of system in place, such as New Zealand and the U.K., but there are already serious indications of how flawed the so-called reformed legislation is when it comes to the treatment of people placed under suspicion of terrorism. Let us be very clear. No society has ever been made safer by trashing due process of law.

I have only a couple of minutes left. I want to say once again what has already been said by many of my colleagues and by the member for Surrey North, who has done a superb job in addressing the very heart of this matter, and that is that this legislation is flawed for a number of reasons. Some of those reasons I have already explained, such as the suspension of due process, but also, ironically, for those fearmongers who keep trying to dredge up absolute horror for the public, the irony is that security certificates do not punish people who are plotting terrorist acts.

The fact of the matter is that our criminal legislation should be dealing with this problem. That is the way in which we should be dealing with any handling of suspected terrorists.

I plead with all members to pay careful attention to the fundamental principles that are at stake in this instance. Let us be clear that any society which tries to become more secure by trashing human rights and civil liberties is likely to end up being both less secure and having a lot less freedom for all of its citizens.

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 third time and passed, and of the motion that this question be now put.

[Ken Epp, Conservative, Edmonton—Sherwood Park, AB]

Mr. Speaker, I want to take just a few moments to thank the member for her speech. I think she is thoughtful. She has expressed herself well.

I would ask her, though, this question: does she not see the danger of divulging to somebody who is actually guilty the source and nature of the evidence against him or her? It would put in danger those who were able to find the person and to arrest the person, because there invariably is a network of people involved in this. There are relationships built in order to infiltrate a group, so to speak, and this would put an end to that process and put the lives of those individuals in danger. If not with the process proposed in the bill, how would she handle it?

[Alexa McDonough, NDP, Halifax, NS]

Mr. Speaker, first of all, I want to make it clear that I absolutely acknowledge that there is such a thing as terrorists potentially being in our midst, but I do not think we solve one problem by creating another huge problem, which is that in the process of deciding that suspected terrorists can be such a threat, we have to suspend all of the fundamental principles and practices of our legal system.

I am not a lawyer. I do not pretend to know where there could in fact be some limitations warranted in terms of the public divulging of some information, but what I do know is that when we basically try to convict people without any due process of law, without even their knowing what they are charged with, without their having any legal representation, or in other words, no legal rights whatsoever, we have created a huge problem to deal with another problem.

I do not believe for a moment that there is not a way to ensure that due process takes place. Yes, possibly there are some aspects of information that should not be fully divulged to the public, but to not have some divulging of information to legal representatives who can participate in the due process is just simply not acceptable.

It was acknowledged, and I personally think that it went much too far, that there were aspects of the record in terms, for example, of the Arar inquiry that perhaps should not have been fully publicly divulged. I do not think anybody ever argued otherwise. I think it was pretty clear that there were massive amounts of redacting, that is, blacking out with black pens information that had more to do with protecting people in our legal system than it did with protecting the accused. But I want to say that I think there are reasonable limits in such cases.

What I do think is that what is proposed here is simply inadequate to the test of due process and the fundamental elements of our legal system that we must uphold in regard to anybody who is being tried and potentially can be convicted of criminal activity or terrorist activity.

[Ken Epp, Conservative, Edmonton—Sherwood Park, AB]

Mr. Speaker, she did not answer the question. I asked her how she would handle it if someone were picked up with substantive evidence, enough to arrest them. The evidence is there, but we cannot divulge either the source or the nature of the charges against the person because doing so would put in danger those who are on our side, the informants, the other people who are involved.

I would like to also point out to the member that Bill C-3 does accommodate that by allowing a judge, and in this country we believe judges to be fair and impartial, to hear the evidence in secret chambers, with a lawyer appointed to actually represent the accused and to see the evidence but also sworn to total secrecy so the whole process can be done to protect our citizens. That is in the bill. So she is at the same time supporting the concept of what is in the bill and speaking against the bill. I have sort of backed her into a corner. I regret doing that. I do not like to--

[The Deputy Speaker, Bill Blaikie]

The hon. member for Halifax.

[Alexa McDonough, NDP, Halifax, NS]

Well, Mr. Speaker, I think that was a very sincere comment: he does not really like to do that but...? Give us a break.

I think I have made my point clear. We have a fundamental disagreement here. I absolutely believe that overwhelmingly we are well served with very competent judges. I also believe that we have a legal system that for a very good reason exists with checks and balances, with due process.

Yes, there may be instances in which some information should be withheld, but that is a far cry from the kind of hang 'em high, lock 'em away and throw away the keys kind of justice system that is too often conjured up in people's minds when they are fearful about the possible threat of terrorism.

We have to be very careful not to succumb to that. As Barbara Lee has said, “let us not become the evil we deplore” in the attempt to defeat terrorism.

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

Mr. Speaker, over the last few weeks, and in fact today in this House, we have seen some extraordinary things happen.

The House of Commons, in my estimation, should always be a place of debates that enhance and ensure that the expectations of Canadians of their justice system are met and exceeded. This place should always be a home of motions and bills and debates that raise the bar on human rights as well as the rights of citizens. Bill C-3 and its expected outcome would do just the opposite.

However, in this place, the tone of debate on Bill C-3 often mirrors a mediocrity and a nasty tone that one never would expect of parliamentarians present. We hear derisive remarks. We hear catcalls. We heard baiting in the form of the questions put forward on this bill that were they not so amateurish, might well have stood in the 1950s and been used by Senator McCarthy of the U.S.

Parliamentarians must reach to do better. We must move to a place in our debates that illuminates rather than obscures the makeup of any bill. As I said, Canadians expect this of their elected representatives. It is our responsibility to meet that expectation.

When I last spoke on Bill C-3, I advised the House of an occasion last summer when I had visited a Muslim friendship centre in Edmonton. At the centre, I met some new Canadians as well as some more-established Canadians from that Muslim community. Our discussions were wide-ranging and the topic of racism and discrimination came up.

A gentleman who had been in Canada some 30 years spoke up. He was well established. He said he had been contributing to the Edmonton society. From the other people in the room, it was very clear he was a leader who was well respected in his community and the broader community. The gentlemen told the story of how over the ensuing years following the tragic events of 9/11 investigative officers from CSIS would drop by to speak to him. He said that they wanted to know about all the money he was sending to his homeland and the terrorist groups he was supporting. He told them Canada was his homeland, but as a dutiful son, he had sent money home for 30 years to raise the standard of living of his family in his former country.

Some 40 years ago this year, I moved from New Brunswick to Ontario. For me, coming to Ontario, in the 1960s in particular, was something like moving to a new world. However, like the man in Alberta, many good Canadians from our own east coast send money home to their families to help support them back east.

In my opinion, what is happening to us as a country is nothing short of tragic. In my opinion as well, what is happening in the name of national security is an affront to our democratic processes.

As Canada rushed to follow the Americans' approach to, in their words, fight terrorism, we cast aside some of the most fundamental beliefs of Canadians. Just consider Bill C-3 and how it conflicts with the fundamental belief of Canadians that in Canada one has the right to be presumed innocent until proven guilty.

I stand here today speaking on security certificates, and I regret that I am doing this. In our country, once so rightfully proud of our human rights record, our justice system and our positioning in the world, how did we reach this point?

After Bill C-3, Canadians will not be more free. And because of Bill C-3, they certainly should not feel any more secure. I believe, along with the rest of the NDP caucus, that Bill C-3 would continue to fail Canada and to fail Canadians.

The NDP opposes Bill C-3 for the most fundamental of reasons. Repeatedly, we have spoken to the fact that measures in our Criminal Code already give law enforcement the tools they need to deal with crimes against Canada and crimes against Canadians.

Security certificates themselves fail Canadians in a grand fashion. A security certificate does not allow for the presentation of evidence that would support accusations against a person accused or suspected of terrorist activity. Instead, the security certificate simply removes the individual from Canada. In doing so, it fails Canadians.

When an individual is believed to be guilty of an offence against Canada or Canadians, then the Criminal Code must be used to deal with that accusation. A security certificate does not offer, nor support, justice for either the accused or for Canadians. In fact, as I have said repeatedly, security certificates in themselves are an affront to Canada's national sense of justice.

If the accused is guilty, the person should be charged and tried under our Criminal Code and the appropriate penalties applied. Only then, following those penalties being served, should the person be deported. Bill C-3 would allow people to be held in detention without the opportunity to face their accusers or see the evidence against them.

We should consider, for a moment, that people in detention who proclaim their innocence will never have the chance to speak to the evidence in a court of law. If they are allowed to go through our Criminal Code procedures, our courts, our justice system, and were found innocent, they would have had the right to return to a Canadian life, to pick up where they left off, to pick up the pieces.

Under security certificates, many will spend years upon years in detention, and they have already. They have not seen the evidence against them. Nor have they had the chance to refute the evidence against them. As a result, the most fundamental tenets of our justice system will have been sacrificed. The existence and the use of security certificates has put a chill across our country.

I alluded to the individual in Edmonton, Alberta, but there are more cases than that individual, cases where Canada has failed its citizens. We should talk to Mr. Almalki about his time in Syria. He was detained in a cell, which was more like a coffin, for three months. We should talk to Mahar Arar about how Canadian officials let him down when he was abandoned to be rendered to another country to be tortured when certain people knew that would happen. Canadians know that Canada failed these men. Bill C-3 is setting ourselves up for further failure.

I was raised to take great pride in our justice system, and I do. The fact that innocent people can face their accusers and the evidence against them, and because of that process, the innocent one day can walk free.

It is crucially important to the sense of justice that all Canadians have that the people in this place pause, stop the rhetoric and think about the deterioration of our justice system and our human rights system if we gerrymander the process with Bill C-3, if we put into place a process like this, which is so ugly and disgusting. I truly cannot understand how anybody in this place can support it.

Our Criminal Code is among the best in the world. Our justice system is among the best in the world. Canada even sends people to other parts of the world to teach them about our justice system. One of the few ways we can keep that pride in our system and our institutions is to ensure individual rights and the rights of all people to face their accuser and the evidence against them.

For the NDP, the security certificate is an affront to civil liberties. We understand, with Bill C-3, the Conservative government is trying to address what is seen as a flaw in the process, and the Supreme Court ruled that it was a violation of the charter. Clearly, what the government has tried to do with Bill C-3 is move around something that has been deemed by the Supreme Court as a violation of the charter.

We must think about the rights and freedoms for a moment. We must think about the individuals detained in our country. Their freedom has been taken away and they have no rights.

It is our Charter of Rights and Freedoms that we must protect. Imagine the setting aside of well respected fundamental terms of justice and how this is being done so cavalierly. The detainees have not seen any critical evidence against them. Their legal representatives have not seen the evidence against them. Let us just say tomorrow, for whatever reason, it is deemed acceptable that they return to Canadian society, that there had indeed been an error. They will also be besmirched by the fact that they have been detained. Because of Bill C-3 and the security certificates, they will always be subject to suspicion.

I spoke harshly because I was upset with what I had heard in a committee about the tone of this place. I know when I speak to many members here, they want to see us all rise above rhetoric and beyond the point scoring process that seems to happen here daily. That challenge is being put to us by Canadians and they want us clearly to reflect what they believe.

With that, I will close with a line that has been heard in this place many times before. We must remember, for the rest of the world, what we ask for ourselves, we wish for all. That is what makes Canada the place to which many people from all over the world seek to come.

[Alexa McDonough, NDP, Halifax, NS]

Mr. Speaker, I welcome the intervention by the member for Hamilton East—Stoney Creek on the bill.

I know it is not possible for all members to sit in all committees, no matter how interested and concerned they are about particular legislation. However, I think the member may also be aware that our colleague who sits on the public security committee, the member for Surrey North, has indicated that the overwhelming testimony before that committee was to oppose Bill C-3 in the form in which it was presented.

I agree that some small amendments have made it less odious, less objectionable, but not sufficient for the NDP caucus to support the legislation.

Of the 20 written submissions to the public security committee to deal with this, only 1 recommended support of BillC-3? Of the 17 witnesses who did not have written submissions but nevertheless gave convincing oral submissions, only 1 recommended support of the legislation.

Could the member comment on what that says about being responsible or unresponsive to the informed views of people with considerable scholarly background, legal background, involvement in human rights and civil liberties activities and organizations over a very long period of time?

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

Mr. Speaker, the question of the member for Halifax is insightful. In my remarks I referred to the fact that there was a chill across the country. It is in primarily our diverse communities. They feel they are being abandoned.

How the government members and the government itself can ignore the expert advice that came before the committee is beyond understanding. Clearly people are frightened for the well-being of our Charter of Rights and Freedoms. They see this as the beginning of the undermining of that charter.

It is baffling. The warnings that were given, and I used the word before, were cavalierly tossed aside by the government.

[Denise Savoie, NDP, Victoria, BC]

Mr. Speaker, the hon. member mentioned the tone in the House. I was glad he raised this issue. I think it is very pertinent to the debate about democratic rights.

Many young people in my riding are concerned about the bullying, the catcalls, the kind of behaviour that is displayed here. They are becoming discouraged with the democratic process with our government and believing in what we are doing here.

Would my colleague like to comment on the link that he makes between the erosion of democracy and behaviour in the House?

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

Mr. Speaker, the thing that is very striking about what we hear in the community is this. I will give one example that my caucus mates have shared. All of us have heard from teachers. Because of the tone in this place, they no longer wish to bring their students here.

The member asks me what I believe the long term effect of that will be. If people do not experience this place, if schools no longer want to talk about this place, if we do not encourage the democratic process for which this place should stand, then the young people will not learn and they will not want to be part of this process.

All the things that minimize democracy have to be challenged. That is what brought me to the point of raising my remarks earlier.

[Denise Savoie, NDP, Victoria, BC]

Mr. Speaker, I am pleased to have the opportunity to speak to Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act. As we know, this is a bill that would reintroduce security certificate legislation with the provision for special advocates to address the civil liberties issues raised by the Supreme Court.

I am opposed to this bill because I believe it would compromise some of the fundamental principles of our justice system by circumventing due process which is a fundamental right in any democracy.

The Conservatives, supported by the Liberals, are proposing a law that attacks section 9 of the Charter of Rights and Freedoms that states, “Everyone has the right not to be arbitrarily detained or imprisoned”. This section specifies not just Canadians but everyone in Canada and yet this law would deny that right to permanent residents and foreign nationals.

It seems somewhat ironic that we say that we are fighting for democracy in Afghanistan and that we want to help them build a justice system that treats all people fairly at the time when there is slippage of those very principles in our own country.

I believe there are many ways to erode democracy. Corruption in government, for example, erodes democracy, free trade agreements that favour commercial rights of corporations over the rights of their citizens, of which the Conservative government is an ardent proponent of, or laws that disenfranchise groups of voters, as did Bill C-6, for example, introduced by the Conservatives, or indeed, as my colleague has just mentioned, the behaviour in the House which undermines true democratic debate.

Bill C-3 is just another law in that series that undermines the fundamental principles that many have fought for and that are being traded away in a very bad law.

There are two major problems with security certificates. First, as one of my colleagues has mentioned, they do not punish people who are plotting or have committed serious crimes, like terrorist acts or espionage. Security certificates allow for the detention and deportation of those suspected of terrorist activities but do not ensure suspected terrorists are charged, prosecuted or jailed for their crimes.

Because there are very serious consequences facing those named in security certificates, like deportation orders, possible removal and even torture, strong safeguards are required and this legislation does not go far enough in protecting civil liberties.

Canada must take strong measures to protect itself and its citizens against terrorists and spies. These are not nice people and we must take strong measures. However, we must find a better balance between protection against terrorist activities and protection of civil liberties than that offered in this flawed bill. The NDP believes that the Criminal Code is the right tool for the protection of our national security, not the Immigration and Refugee Protection Act.

I listened very carefully to some of the Conservative and Liberal members who have argued today in favour of this law. The member for Vancouver South said that security certificates offered the only effective mechanism, as the evidence may be out of country and we could not get a conviction in a court of law.

I think there is something fundamentally wrong with sending someone away under the cloud of accusation of terrorism without any proof. There is something equally wrong in sending them away so they can continue their criminal activities elsewhere. Why would we allow someone we suspect of terrorist acts to leave the country? How does that improve our global security?

The second flaw in this bill includes secret hearings, detention without charge or conviction, detention without knowing the evidence against someone, indefinite detention and lack of an appeal process. This again undermines the core values of our justice system.

The right of full answer in defence, the right to know the allegations against someone and the opportunity to respond to those allegations is a well recognized aspect of fundamental justice and that right is abrogated under the security certificate process. The detainee may never know the reasons why he or she is being deported. As with the Maher Arar case, we have seen the abuses that can occur.

It is understandable that security may be needed in some cases. I am not a lawyer but I understand that there are very clear provisions within our Criminal Code and the court system for matters of national security for hearing evidence when there is a need to withhold information in the interest of national security. One has to ask why we are rushing to abrogate basic democratic rights.

I believe it was the member for Vancouver South who admitted that this law was flawed but, like most of his Liberal colleagues, he has indicated that he will vote in favour of a bad law. It was an incomprehensible statement Liberal opposition members made in our Parliament that they would support a bad law because we are running out of time, the time having been set by the Supreme Court. I do not know how often I have heard this. It seems very convenient that the government has waited nine months or until the very last minute to reintroduce Bill C-3.

Another argument that has been used by those supporting the bill is that they have improved the security certificate process by introducing special advocates. Special advocates have been used in New Zealand and the United Kingdom and the process in both of those places is seriously flawed and under heavy criticism by many credible people. The United Kingdom keeps being cited by those who support modifying rather than abolishing the security certificate system despite court cases that have ruled against them there.

Given that the United Kingdom Lords of Appeal have ruled against provisions of the process and that Ian Macdonald, QC, a special advocate with over seven years experience, quit over the failure of the government to address the problems with the system, it does not seem to be the ideal solution for Canada to adopt.

The NDP strongly believes that a system that denies the right of answer in defence cannot be corrected by mere procedural tweaking. Even if all civil liberties were protected, security certificates within the Immigration and Refugee Protection Act would still not be the appropriate mechanism for dealing with threats to national security which should be pursued under existing articles of the Criminal Code.

We strongly oppose security certificates because the process is fundamentally flawed and this measure would further diminish democratic rights in Canada.

[Mario Silva, Liberal, Davenport, ON]

Mr. Speaker, I too share many of my colleague's concerns. I have been doing quite a bit of homework. I have spoken to NGOs, Amnesty International and certain people in the legal profession about this bill and have asked them if they knew of any way we could change it or improve it, or whether it should be rejected.

Much to my surprise, Amnesty International is opposed to the bill but, at the same time, it does not argue that we should get rid of security certificates at hand. Other prominent human rights lawyers, such as Kent Roach from the University of Toronto's faculty of law, have said that Bill C-3 does address the concerns raised in the Charkaoui decision by the Supreme Court in February 2007. I know that legislatures have a very difficult thing at hand because this is, in some way, being rushed by the government. The government had from February until October to introduce the bill before the House.

At the end of the day, this is still a flawed bill and I do not support it because of that. However, there should be some consideration given to the need for security certificates given the fact that we do not live in a perfect world, that there are different objectives at play and that sometimes these objectives can be in conflict with one another, even on issues of civil liberties and on security.

Is it the position of my hon. colleague and her party that security certificates should be eliminated and that we should not have them in this country because it is not the view of organizations such as Amnesty International?

[The Deputy Speaker, Bill Blaikie]

I am afraid we will have to wait until after the votes to hear the response of the hon. member for Victoria to that intervention.

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 third time and passed, and of the motion that this question be now put.

[The Deputy Speaker, Bill Blaikie]

Pursuant to order made Thursday, January 31, 2008, the House will resume consideration of the motion at third reading of Bill C-3.

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

Mr. Speaker, I understand that we are now finally discussing the substance of the bill in order to decide whether to accept or reject it. We will be voting against this bill for the following reasons.

We believe that if a judge is to make a decision that will result in the incarceration of an individual for an indeterminate period of time, he must be convinced beyond a reasonable doubt. That is the criterion which the judge should use to make his decision. That is what the law prescribes for all Canadians—for those governed by Canadian law and for Canadians.

I will point out shortly that security certificates only apply to foreigners. In this case, since we decided to give them the right to appeal, this appeal should be of the same sort, that is it should deal with a question of fact, a question of law or of law and fact.

We were also not satisfied with how the whole issue of the special advocate is dealt with, although we recognize that a significant improvement has been made to the legislation.

At this time, perhaps, people are still watching us, or some may watch us later. I would like to make it easier for them than it was for me to understand this legislation. Few people unfamiliar with the bill understand what we are talking about, the term used and our discussions.

I would first like to say, so that it is clearly understood, that the security certificate is badly named. We should really be talking about a deportation order because, in practice, that is what is being requested. This is why it applies only to aliens and not to Canadians. Indeed, under section 6 of the Charter of Rights and Freedoms, Canadians have the right to live in Canada, to leave the country and return, which is not the case for aliens. The charter refers to every Canadian citizen. Therefore, it does not apply to aliens.

What is a security certificate? Generally speaking, secret services may believe that a person is dangerous. In our modern world, dangerous people, the kind of people we fear, are terrorists who have been trained and sent to live in Canada, remain unnoticed if possible and, at a given time, carry out a terrorist act. That is what happened on September 11. Many of the people in those planes, who took part in the take-over of the planes and the subsequent suicide attack, were model citizens. They are known as “sleeping cells.” By the way, this is a ridiculous term, not that we are accusing anyone here, because the definition of a sleeping cell is a model citizen. He is here to go unnoticed among us. So he is a model citizen. It seems a bit unfair when we think about it.

Let us return to the security certificate. We are talking about a deportation order that has been requested by two ministers, the Minister of Citizenship and Immigration, because this deals with the Immigration and Refugee Protection Act, and the Minister of Public Safety, because, he, obviously, is responsible for national security.

If they believe an alien is dangerous, they issue what we call a security certificate to expel that person from Canada. The certificate is brought before a judge who must be convinced that the person is dangerous. In fact, it is not necessary to convince the judge, only to have him think that it is reasonable to believe that the person is dangerous based on the evidence presented to him.

Obviously, if they feel that way, it is because they have secret information about that person. That is the reason you will often hear people say they do not know what evidence was presented to the judge. In fact, very often, the evidence comes from three kinds of sources.

First, the source might be an ally who gave us information on the condition that we not make it public. Second, the source might be an undercover agent, whose life may be at risk if he is discovered or who at least risks never working as an undercover agent again and losing his secret agent status. Third, the evidence can come from investigation methods or terrorist group surveillance activities that should not be disclosed for fear of helping those concerned get around those methods.

This type of evidence is presented to the judge. The judge hears this evidence in the absence of the accused. In fact, we should not use the term “accused”. We should always avoid talking about the “accused” and instead talk about the “person concerned”, since that person is not being accused or charged. That person is believed to be dangerous and because he is considered dangerous and he is a foreign national, we want to deport him from the country. We do not want to inform the person concerned because if he is indeed a terrorist, as we suspect, he could later tell others about the investigation methods or the name of the undercover agent.

The judge hears the evidence in the absence of the person concerned and in the absence of his lawyer, if he has one. Then the judge decides which pieces of evidence the person concerned can be informed of. For example, if we know that the person received training in Pakistan and he was seen in a certain village doing a certain thing, the judge can tell him he was seen without telling him who saw him or mentioning how that information was obtained and without disclosing the names of the people who were directly responsible for providing that information.

The person concerned can try to explain why he went to Pakistan and try to convince the judge that he did not receive terrorist training and that he is not part of one of those sleeper cells we are so afraid of. As you can see, there are limited ways to challenge the arrest since the person is not provided the confidential information, which is also probably the most important information.

In fact, we are talking about a removal order. The individuals need only to leave the country to pursue their activities. Then why do some people not leave? Because in some cases—increasingly so—if these people go back home after being deported for security reasons, they are sure to be sent to prison in the destination country, like Morocco, Syria and many countries in the Middle East. Not only are they sure to go to prison, but since they are suspected terrorists, they will likely be tortured. This has happened a lot lately. Sometimes they are tortured to death.

Consequently, these people do not want to leave Canada and contest the removal order because they are afraid to go back to these countries. Others contest the removal order because they have been in Canada for a number of years. They have started a family here, they have jobs and Canada has become their country, even though they have not taken out Canadian citizenship. Those are some reasons why people contest the removal order.

Now, because it considers these people dangerous, the government is thinking of incarcerating them during the procedures, to prevent them from escaping and going to live somewhere else in Canada under a new identity or whatever. The government is thinking about a form of incarceration. It is true that these people can always leave the country if they wish. That is why some members of this House say that it is a three-walled prison, although they never explain what that means.

Keeping the same image, I would answer that it may be a three-walled prison, but in some cases, there is a cliff where the fourth wall should be. The person who is incarcerated cannot really leave, because leaving would mean certain death. That is why these people do not want to be deported.

When we understand that, the situation becomes much clearer. We understand that these people are not Canadian citizens and that they have not been accused of anything. The government simply has information that they belong to a terrorist group. But that does not have to be proven beyond a reasonable doubt in court. All it takes to keep these people in prison is for the judge to be satisfied that this belief is reasonable. And they can be kept in prison for many years. In fact, they are incarcerated indefinitely. That is why the Supreme Court ruled that this was not just an administrative matter. These people have certain rights. In my opinion, that is the most important thing.

I would like to read some excerpts from the Supreme Court decision so we can have an idea of its intentions. According to the court, it is not simply an administrative decision, but it is also as serious as criminal charges. Even if they were never charged, it is just as serious and they must be granted certain rights. In paragraph 60, the court said:

It is one thing to deprive a person of full information where fingerprinting is at stake, and quite another to deny him or her information where the consequences are removal from the country or indefinite detention. Moreover, even in the less intrusive situations, courts have insisted that disclosure be as specific and complete as possible.

As they say, it is a serious decision. The information must be revealed.

I will go a bit further to understand the background. It is about a removal procedure. People will perhaps remember that this summer, an individual was arrested at Dorval. I believe he was Russian, but his nationality was not known when he was arrested. He had several pieces of ID, a considerable amount of money in different denominations, and so on. A security certificate was issued against him and he left. It was not long. He left and was not sent to prison. He returned home or went elsewhere. Those who stay here do so because they cannot leave Canada for fear of torture or death.

In paragraph 91, the Court stated:

[The government] asserts that when the provisions were drafted, it was thought that the removal process would be so fast that there would be no need for review.

Because of what I explained, we can see that it takes more time. Some people have remained in prison for five, six or eight years on a security certificate. So it is a very difficult detention. In paragraph 96, the Supreme Court said:

Detention itself is never pleasant, but it is only cruel and unusual in the legal sense if it violates accepted norms of treatment. Denying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrarily indefinite and support the argument that it is cruel or unusual. (The same may be true of onerous conditions of release that seriously restrict a person’s liberty without affording an opportunity to challenge the restrictions.)

We have read in the papers about people who complain about the bracelet, conditions of house arrest and so on. In paragraph 98, the judges say:

More narrowly, however, it has been recognized that indefinite detention in circumstances where the detainee has no hope of release or recourse to a legal process to procure his or her release may cause psychological stress and therefore constitute cruel and unusual treatment.

Further on, in paragraph 105, they add:

It is thus clear that while the Immigration and Refugee Protection Act (IRPA) in principle imposes detention only pending deportation, it may in fact permit lengthy and indeterminate detention or lengthy periods subject to onerous release conditions.

In paragraph 107, the Supreme Court states:

Drawing on them, I conclude that the s. 7 principles of fundamental justice and the s. 12 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.

Clearly, it is because of the consequences that these decisions may mean indefinite incarceration in exceptional cases and the Supreme Court believes that enhanced procedural safeguards are needed.

We can take the Supreme Court's reasoning and apply it to the provisions that are before us. We understand that security certificates cannot be issued against Canadians, but sometimes people are so dangerous that the government wants to make use of certain legal provisions, such as those in part XXIV of the Criminal Code. Sometimes the government says that these people have to be held in prison indefinitely. This is a very harsh sentence, although it is not quite as harsh as life imprisonment.

In such cases, judges must be certain. They must not just believe that the reasons for which the person is thought to be dangerous are reasonable, as in cases of foreigners who are the subject of removal orders. Judges must be certain. We would have preferred that the judge's decision, which may result in indefinite detention, be made on the basis of the same criteria: being certain beyond a reasonable doubt. That is one of the two main reasons we will be voting against this bill.

The second reason concerns the decision to appeal. I should clarify that they decided to reinstate the appeal process. There was one before for the security certificate process, but it was abolished at the beginning of the last decade. Nevertheless, they decided to reinstate it, albeit in a very strange way. To keep the person in jail and maintain the security certificate and the removal order, the judge must determine if his or her own decision is a legal issue of general public importance. An appeal can be allowed on those grounds, and the judge drafts the notice of appeal for the person.

If I had just been convicted, I might not have much faith in the way the judge would present my case to the court of appeal. The purpose of the appeal is to advance the law, which is very noble. It is a bit like medical research, except that in this case, it does not really affect the patient.

I asked some officials where they found this appeal procedure that I had never heard of in my 30 years of practising law. They said that it came up in administrative law cases. However, the judges have told the officials that this is not administrative law. That is why conditions are needed to make it constitutional. The ruling is so serious as to be almost criminal in nature. That is not what they tell us, but that is what it boils down to. We are asking for improvements to the procedure so that the person involved can have a better opportunity to tell his or her side of the story, with full knowledge of the evidence, where possible.

This is what section 759 of the Criminal Code says about what happens when a Canadian is found to be a dangerous offender and the courts want to sentence him or her to time in prison:

An offender who is found to be a dangerous offender under this part may appeal to the court of appeal against that finding on any ground of law or fact or mixed law and fact.

In cases that are just as serious, why would we not grant the same rights to a person who, I would remind the House, has never been charged or convicted of anything, when all we have is some information held by security agencies that suggests that the individual is dangerous? If we must consider foreign nationals believed to be dangerous based simply on reasonableness, I think we should give them at least the same opportunity we give to Canadians we want to put behind bars because they are dangerous offenders, guilty beyond a reasonable doubt, and who have been convicted for several offences before they were declared dangerous offenders. We must grant the same rights to foreign nationals. That is why, once again, we would have liked to improve that piece of legislation. That was impossible, which is why we cannot accept this and why we will vote against it.

When the minster says this is a matter that should go beyond party politics and that we should have a different attitude, I do not see anything partisan about our attitude. For such an important decision, he should have sought the consensus of all members.

After such a long day, I hope to have nevertheless enlightened a few people who did not understand what a security certificate is. What is important to remember is that it is a deportation order because someone thinks such people are dangerous. The security certificate applies only to foreign nationals and not to Canadians. They are not given all the evidence because—

[The Deputy Speaker, Bill Blaikie]

Questions and comments.

The hon. member for Hochelaga.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, first of all, I would like to congratulate the member for Marc-Aurèle-Fortin. I know he worked hard in committee. I would like to take this opportunity to mention that Nicole Martin is in our lobby. My colleagues will understand how lucky we are to have her there.

I would like to ask an even more important question. Does my colleague agree with the opinion—which I hope will one day be the majority opinion—that this law was not necessary, even if we do not deny the existence of terrorist networks? The member for Marc-Aurèle-Fortin made this argument well.

Could he speak about certain provisions, not specifics, of course, that already exist in the Criminal Code or in other acts, and that would have enabled us to act in 2001, in response to the events of September 2001, when Anne McLellan introduced a bill to which the Bloc was opposed?

Is it not inherently dishonest to make it seem as though there were not already tools that would have helped us fulfill our duty to provide security at a time when people could represent a threat to national security? Is it not rather appalling, in terms of human rights, to have a bill like this one?

I would like to know what the member for Marc-Aurèle-Fortin thinks.

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

Mr. Speaker, that question is more difficult to answer than one would think initially. I am certain that there are many other things we could do. I believe that five security certificates have been issued since September 11. Five individuals were identified. It seems to me that there are far more bad guys at large and some that are deemed to be quite dangerous. When individuals are considered dangerous, they are watched. Quite frankly, I sometimes have the impression that it would have been far less expensive to have had them under surveillance than to have undertaken all these proceedings against them.

I imagine that if we believe that they are dangerous, we can monitor their phone calls and their relationships. When these people meet to plan a terrorist attack or to plan any crime, they have an agreement and with that agreement there is conspiracy. Thus, we can charge them with conspiracy. The Criminal Code states that an individual about to commit a criminal offence can be arrested without a warrant. We could also avail ourselves of anti-terrorist provisions.

The problem here is that we are dealing with people who cannot be charged with anything. Not only are we unable to find them guilty of any crime, we are unable to charge them with anything. If we could, they would be brought before a court, bail would be set and eventually they could defend themselves, plead not guilty and have the right to a reasonable doubt.

After September 2001, there was panic because dormant cells were discovered involving people who had never been suspects. However, others had been under surveillance. We should have taken action when we realized that there was at least one person who was taking flying lessons but was not interested in the landing procedures. That is when the light should have gone on.

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

Mr. Speaker, I am pleased to have this opportunity to participate in the third reading debate of Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate).

As we know, this legislation deals with the security certificate process that is part of Canada's immigration act. We are debating it tonight because in February 2007, as a result of an action in the Supreme Court, that process was ruled by the Supreme Court to be unconstitutional.

In reality, the security certificate process is an expedited deportation process. It is a removal process for people who are considered to have violated immigration law. It is in the immigration law and applies only to permanent residents and visitors, not to Canadian citizens. My sense is that this expedited removal process should be used only for problems with immigration law. It should be used only for immigration purposes.

Unfortunately, that is not how I see it being used. I see it being used as a back door to dealing with issues of terrorism, national security, espionage and organized crime. I see it as a lesser mechanism for dealing with problems of our criminal justice system that we cannot get at with the Criminal Code, or that we apparently cannot get at, because I am not convinced that is in fact the reality of the situation.

I see this as a very deeply flawed process. It allows for indefinite detention without charge, without trial or without conviction for people who are accused of terrorism, espionage, threats to Canadian security, or participation in organized crime. Again, I want to stress that this is not a process that results in a charge or a trial or a conviction, but it does allow someone to be detained indefinitely on the suspicion of those serious crimes.

It denies the person accused, the person named, the person detained, a fair hearing. It means that such persons do not have the usual access to some of the principles and safeguards of our criminal justice system. There is a lower standard of proof in these security certificate cases. The accusations against the person do not have to be proven beyond a reasonable doubt, as they would in a criminal court. It is a lesser burden of proof on the balance of probabilities and I think that is a very serious flaw with the process as well.

It is hard for the accused to test the evidence against them, partly because they or their lawyer do not know all of the evidence against them so the usual rules about how we would test evidence presented in court do not apply in these cases. It is a very serious matter, I think, that all the evidence is not available to the accused and their lawyer.

Another serious flaw with this process is that it could allow deportation to torture or persecution in another country. That is a very serious problem and it is indeed probably why a number of these people are still here. The government will consistently point out that these people are free to leave Canada at any time. While that is true, it really begs the question of what is possible for people who have been accused of these very serious crimes, who have been accused of terrorism but have never been shown to be guilty of that terrible crime.

They do not have any options in terms of actually leaving Canada after that kind of accusation has been levelled, especially given some of the countries they are from, where we know if they were returned they would most certainly be imprisoned and they might also face torture, because many of those jurisdictions do regularly practise torture. They might even face death.

When people say that we need to maintain this security certificate process as a way of dealing with accusations of terrorism, I cannot agree, because I believe that it is a very serious compromise of our criminal justice system. It compromises some very hard won principles of our justice system.

We are dealing here with some of the most serious accusations, some of the most serious charges, that could be levelled against anyone in our society, accusations of terrorism, espionage, security threats or organized crime. I cannot think of many criminal activities that would be judged more serious by Canadians.

Unfortunately, the goal of the security certificate is merely to get people out of the country. Its goal is not to charge and convict them of those crimes or to punish them for those crimes. It is merely to see that they are not around here any longer.

There is no attempt to make sure that people would be charged and there is also no attempt to ensure that they would be charged in their country of origin. It is not like an extradition process where we are extraditing them to their home country or another jurisdiction where they would face a charge or trial for these serious crimes.

In a sense, it lets somebody who is accused of very serious criminality off the hook if they agree to leave the country. It does not allow for any punishment or any proof of a very serious crime.

I do not think security certificates make Canada or Canadians any safer. I do not think it deals with these very serious criminal matters. Crimes that should be prosecuted are crimes related to terrorism and national security.

If there are problems with our Criminal Code that make it impossible to charge these people, then we should be addressing those problems, not relying on some lesser mechanism in the immigration law to indefinitely incarcerate them and put them in a position of removing themselves voluntarily. That is a problematic way to approach these very serious crimes.

This afternoon the parliamentary secretary noted in debate, and I think he was touting this as a virtue of the legislation, that in the past year someone who had been accused of industrial espionage had voluntarily left Canada. It seems to me that the charge of industrial espionage, or espionage of any kind, is a very serious criminal matter. Why that person was allowed to leave and never charged, or sent to trial and convicted and punished for that kind of crime, is really beyond me.

It seems to me that we actually could be tougher on crime in that sense by ensuring that those very serious crimes are prosecuted here in Canada. If there is a problem with our Criminal Code that does not allow that to happen, then we should be fixing that problem rather than relying on some lesser mechanism to get at that person.

Most Canadians that I have spoken with are shocked to know that indefinite detention without trial can happen in Canada, but that has been happening under the terms of these security certificates. That is a significant and untenable compromise of our criminal justice system, and that opinion is shared by many Canadians.

People just cannot believe that we would put individuals in jail indefinitely, having never charged or convicted them in a court of law. That seems beyond the pale for most Canadians.

We have heard a number of times that there are six people currently subject to security certificates in Canada. I think security certificates have been used about 28 times since the process was included in our immigration law. Five of those people have been served with certificates since September 11, 2001. Those men are Hassan Almrei, Mohammad Mahjoub, Mahmoud Jaballah, Mohamed Harkat and Adil Charkaoui. All of these men happen to be Muslim and Arab men, which also causes me some great concern.

I want to talk a bit about what this security certificate process has meant to the people who are subject to them right now and I want to start by talking about the situation of Hassan Almrei.

Mr. Almrei has been in detention since just after September 11, 2001. He is currently being held at the Kingston Immigration Holding Centre, which was purposely built to hold security certificate detainees. It is a maximum security facility actually within the grounds of Millhaven maximum security federal penitentiary. Mr. Almrei is the only one of the five who is still in jail and is in his seventh year of detention. This detention centre was built to hold up to six prisoners and Mr. Almrei is currently the only one being held there.

The course of Mr. Almrei's detention has been fraught with serious problems that I think would offend many Canadians. For instance, when he was held at the Metro West Detention Centre in Toronto before the Kingston Immigration Holding Centre was built, Mr. Almrei actually had to go on a hunger strike to obtain a pair of shoes.

Those were the kinds of conditions under which he was being held. He was not even allowed a pair of shoes. He ended up on a hunger strike for many days to obtain a pair of shoes. I think that would be unacceptable to most Canadians. Yet, that has been a constant feature of Mr. Almrei's struggle while detained on this security certificate.

Last year he was on a hunger strike for 156 days. He drank nothing but water and orange juice. It is hard to imagine anyone surviving for that length of time on a hunger strike. It was very precarious at the end and many of us were very concerned for Mr. Almrei's life.

Again, he was on the hunger strike to protest the conditions of his imprisonment, not the overall problem of security certificates but the specific conditions at the Kingston Immigration Holding Centre under which he was being held. That someone would have to go to that extent, to risk his life to protest the conditions of his detention, is very serious, especially when the person has never been charged or convicted of a crime in Canada.

At KIHC there is no programming for the people detained there. Unlike a federal penitentiary, where there are many options for people who are incarcerated there, there is nothing available to a security certificate detainee, nothing available to Mr. Almrei.

I am also very concerned about the fact that Mr. Almrei is the only prisoner at the Kingston Immigration Holding Centre. I believe that this is an issue of solitary confinement. I think it would shock most Canadians that some people could be held alone in a jail for almost a year all by themselves. There are serious implications from that.

This past December in Istanbul an international group of experts on solitary confinement and incarceration met to discuss the issue of solitary confinement. They mentioned a number of very serious issues that have to be considered and Mr. Almrei's situation corresponds to a number of those, issues like no regular social contact. The reality is that at the Kingston Immigration Holding Centre Mr. Almrei has no social contact with anyone other than guards, who most of the time are unwilling to engage him socially. They watch him.

The kind of psychological pressure that kind of situation puts on someone for an extended period of time is extremely serious and I think I am backed by the international experts. Mr. Almrei has no family in Canada, so he does not receive regular visits from people with whom he has a strong personal and loving relationship. It has often seemed to me that the intent of his incarceration and the conditions under which he is held are intended to force him to make the decision to leave Canada voluntarily. That also has very serious implications.

I will quote a sentence from the statement that these experts made in Istanbul back in December. They said, “When isolation regimes are intentionally used to apply psychological pressure on prisoners, such practices become coercive and should be absolutely prohibited”.

In the sense of this three walled prison, the conditions are very difficult and the social contacts are very limited. The only option is to say, “I give up and I want to leave”.

As my colleague from Marc-Aurèle-Fortin mentioned earlier, it is not really a three walled prison. It is a prison with three walls and a huge cliff because we know what the dangers are if he decides to leave Canada and return to Syria. It would mean almost certainly that he would be jailed, tortured and possibly even put to death. That is just not an option. By limiting that, we are adding to the conditions around solitary confinement that make this a very serious concern.

The other thing I wanted to mention about Mr. Almrei's situation is the fact that he is still in detention indefinitely is related to the fact that he has no relatives in Canada. The other four men who have been detained from time to time have been released because they have a relative, generally a spouse, who is willing to act as their jailer on behalf of Canada. They are willing to be with that person 24 hours a day, to know their whereabouts at all times, and to be present with them at all times.

Unfortunately, Mr. Almrei has no spouse, so he has no one who is willing to take that responsibility of behalf of Canadian society. There have been other people from the community who have been willing to offer some kind of arrangement with regard to this, but the courts have not seen fit to allow that to happen.

That is a huge problem. The fact that someone has remained in jail and detained indefinitely in solitary confinement, essentially, in this purpose built correctional institution, this purpose built detention centre, and the only reason he is still there is that he does not have a relative who is willing to act as his jailer outside of that institution.

I think the effect on the other people who have been released is also very significant because being out on the kind of release conditions that the other four men are subject to is no picnic, to put it mildly. These are the most strict release conditions ever in Canadian history.

As I mentioned earlier, they are all required to be supervised by a family member 24 hours a day, seven days a week, without exception and often by the same family member, or one or two family members. So, it is a very limited number of people who can do that. Their ability to leave their homes is limited.

They are wearing ankle bracelets and global positioning devices. Some of them have cameras in their homes where they can be monitored that way. Their trips outside of the house, the time of that, is very limited, but they all have to be pre-approved, as do visits from people, who have to be screened before they can be allowed to visit.

This puts huge stress on families. It puts huge stress on the spouses of these men and on their children. I think it is a tribute to the strength of the relationships in those families, to the strength of the relationships between those men and their spouses, that those relationships have held up under these terrible conditions.

I do not think any of us can imagine having to spend 24 hours a day with our spouse or to have our spouse take the kind of jailer responsibility over us that these spouses have been required under the law. I think that we need to recognize the strength of those relationships that they still continue.

Again, I just want to stress that this is all happening to men who have never been charged and never been convicted of a crime. It is hard to believe that this is going on here in Canada.

This legislation supposedly presented us with a fix, a special advocate, a lawyer appointed by the court, who would be allowed to see more of the evidence and act on behalf of the security certificate detainee. I do not think that is a fix. I think it amounts to nothing more than tinkering with very flawed legislation.

We have had similar systems in place in other countries, like the United Kingdom and New Zealand. Some of the special advocates in the United Kingdom actually quit their jobs because they could not countenance continuing to participate in that process in that same way. In fact, one of them said that the special advocacy process merely added a fig leaf of respectability to a very flawed process.

It also flies in the face of one of the key principles of our justice system in that people should be able to choose their own lawyer and have someone representing them in these matters they have chosen and they trust.

I think it is very interesting that the federal government in anticipation, I hope premature, of the passage of this legislation has been trying to find lawyers who are willing to act as special advocates and has only had about 50 applications, and has had to extend the application period.

I think that goes to the fact that many lawyers in Canada, if not most lawyers in Canada, appreciate the difficulties of this legislation, appreciate the difficulty of the role of a special advocate, and do not support that kind of arrange.

I think we could have done a much better job of addressing the problems that are presented by the concerns around terrorism, security threats to Canadian society, espionage and organized crime. I do not think it is appropriate to use this lesser immigration procedure to deal with these very serious criminal matters.

I believe these people, if they have committed these crimes, they should be charged criminally, they should be tried in a criminal court and have the usual protections of a criminal court. We have a process in our criminal court that can deal with issues of national security and problems associated with evidence around national security. We should be using that process, not this lesser immigration process, to deal with these very serious matters. Indeed, there are not more serious criminal matters that we could deal with in our society.

[Catherine Bell, NDP, Vancouver Island North, BC]

Mr. Speaker, the remarks of my colleague from Burnaby—Douglas were thoughtful. He is very passionate about human rights. I know for him it is very important to speak on this issue.

I agree with much of what he has said about the bill. It seems to circumvent the criminal justice system, which the Supreme Court decided was unconstitutional and a violation of human rights.

With that in mind, I have received many emails, letters and phone calls from constituents. I have one from a young woman who is very concerned about the proposed special advocate model. She says that it does not provide guarantees for a fair trial and it allows individuals to be deported to countries where they face serious risk of torture. She also says that any process to respond to individuals who are accused of being a threat to the security of Canada must conform to international human rights principles. My constituent has asked me to please vote against the bill.

She adds some points that were put forward by Amnesty International. These are human rights principles to guide the immigration security certificate reform. Could my hon. colleague from Burnaby—Douglas comment on some of the things contained within those principles, such as no complicity and torture, or other cruel, inhumane or degrading treatment, no impunity?

Does my colleague agree that criminal proceedings should be in Canada when removal or transfer is not possible? Does he agree that disguised extradition, equal fairness, full answer in defence and injury to international relations is no excuse and detention is a last resort?

He talked about Mr. Almrei. I know my colleague has him visited in the Kingston centre. One of the things says about detention as a last resort is:

In immigration-based security procedures detention must be the last resort. Detention is justified only where the application of other less intrusive measures have been fully considered and rejected by the state. Where affected persons have been detained, that detention must be subject to fair, prompt and regular review by an independent and impartial court. Immigration detention should not be prolonged and can never be indefinite.

I am concerned that Mr. Almrei's detention seems to be indefinite because he does not fit the model that we have prescribed on him. Would my colleague comment on some of those things?

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

Mr. Speaker, my colleague's constituent raises some very crucial points. The whole issue of deportation to face torture, death or persecution is a very serious one. Canada has obligations under international treaties, to which we are signatories, that we would never participate in this kind of practice.

Unfortunately, this security certificate process does not preclude that possibility. There have been decisions in our judicial system that also do not preclude that possibility, with which I take very serious issue. I do not believe there is ever an excuse for deporting someone to face that kind of circumstance. It is a very serious problem with the security certificate process.

I also think the use of evidence that has been obtained by torture is a significant problem with the security certificate process. I do not think we have strong assurances or strong ways of testing when we have these flaws about how we test the evidence in the security certificate process, when we have this lower standard of evidence in the security certificate process.

I am not one, frankly, after given the experience of Canadians such as Maher Arar and others, who trusts the kinds of intelligence information that we get whole hog. I would not go all the way to say that it is always trustworthy. I certainly would not always believe it is obtained in the most prudent and appropriate ways that respect human rights around the world.

I know we have probably received information that was obtained through torture. That is a very serious problem. That should never be admissible in a Canadian court and under Canadian law. When someone is tortured, they will say almost anything to end the torture. This is another very serious problem with this process and with the kind of compromises the legislation and the process seem to set us up for when we do not respect the principles and the long-standing traditions of our criminal justice system.

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

Mr. Speaker, I think I will be the last person to address the House tonight on Bill C-3. For me, this brings to an end, given what we anticipate the vote will be tomorrow by the Conservatives and the Liberals, a phase of fighting the security certificates and the use of those documents and that procedure in our jurisdiction in Canada.

On behalf of myself and my party, we are vehemently opposed to the use of this device. We have been for a very long period of time. This device is so fundamentally against the values of our criminal justice system, the values that we hold, I thought sacred, around human rights and civil liberties.

This process, this device puts a lie to the proud tradition that we have had in the country, of working, anticipating maybe never to get to perfection, toward respecting human rights.

We have historically had abuses: the War Measures Act; the way we treated the Japanese Canadians during the second world war and members from the Italian and Germany communities as well in both the first and the second world war; and some of the treatment we have had with regard to the Jewish community and the Sikh community.

Historically, every time we go back and look at this, we have always done that abuse. We broke away from our core values as a populace because we were afraid. We acted in fear and panic. When I say we, I do not mean the Canadian people so much as I mean legislators, the policy-makers, the decision makers.

The invocation of the War Measures Act in 1970 was a classic of that. So was the decision in 1939 to move the Japanese Canadians away from their homes, their businesses, incarcerate them for the whole war and take away all their assets.

The security certificates are a continuation of that kind of fear and panic by the decision makers. The House will repeat that same kind of sordid decision making tomorrow. We are doing it not because we need to do it, because we do not. We are doing it because we are afraid. We think the war on terrorism can only be fought, can only be won, by using this type of a device.

The first step we take down that road we have failed, we have lost the war. We are saying to those people, who would use criminal conduct, violent acts, to gain a political end is that if they threaten us with that, we are going to give up our values. We are going to give up the protections. We are going to give up our respect for human rights and the protection of civil liberties in the country.

Thirty-odd years ago we brought this in. In many respects, if we go back and study what happened at that time, we brought this in because it was more convenient to use this device to get people out of the country. Security certificates can only be used against people who are not Canadian citizens. Again, it was a very bad decision, justifying the use of these devices for the sake of convenience, to make it a little easier to get people out of the country. As so often happens, when we make those kind of bad decisions, we do not see the unintended consequences.

If we study the 20-odd certificates that we used against people until 9/11, we could argue there was no substantial abuse. There were a couple of notorious cases that worked their way all the way up to the Supreme Court of Canada. However, we could salve our consciences and say that nobody was badly hurt most of the time when we used it, if the people left the country voluntarily.

One of the cases was before 9/11, but six more came after. It was coupled with the reality of the Supreme Court of Canada making the crucial decision. It said that people could not be deported to their country of origin if there were a reasonable apprehension of torture or death or risk to their personal safety. That case came down shortly before 9/11 and after that we decided to use the certificates more extensively.

This again is one of the shames. Inasmuch as neither the former Liberal administration or the current Conservative administration would like to acknowledge this, we use them exclusively, with one exception, against the Muslim population in our country. It is not a coincidence. We are running in fear because of all the paranoia we hear from the U.S. We succumbed to that fear and that pressure from the Americans and we used these certificates in these five or six cases.

Again, 10 or 20 years from now, when historians look back at this timeframe, they will say “much as we did after 1970”. The administration, first the Liberals and now the Conservatives, did not have the courage to stand and say that our essential values as a country were stronger than any violence with which we were threatened. We can withstand that without giving up our civil liberties and our human rights.

What do we see happening with those unintended consequences? It ended up as five cases. Because of the Supreme Court of Canada decision, we invoke the terms of that order and the applications are made consistently through our courts. We cannot send the individuals back even though they do not know what they are charged with or accused of. They cannot be sent back because there is a risk they will be tortured and put to death. Those cases are still being fought in the courts. Our justice department and security services are fighting them on behalf of the government. Individuals and their counsel are fighting them the other way.

The bottom line is we have been caught. Those certificates are unable to do the job. We cannot get them out of the country and we are left with this in our hands. We are left with the abuse. It is very clear to anyone who comes from any kind of a civil liberties, human rights background looking at this objectively. The system is wrong and it is not working. It is not even effective.

As a society, as the government, we are left having to deal with those five cases, people in custody for indefinite periods of time, not charged and not aware of what the allegations are against them in the vast majority of cases. Therefore, we are left with this situation and there is no end to this.

I want to go back to the Suresh case, which went to the Supreme Court of Canada. It has been going on for 20 years. He is an individual who is not from a Muslim background. A determination was that he could not be sent back to his country. He was ultimately released after many years. He is still subject to it. He is living in our country and for almost 20 years he has posed no threat to us. He has certainly not accomplished any violence in the country whatsoever.

That is one of the older cases, but we have these other cases sitting here. People who have been incarcerated are now out, with the exception, as my colleague mentioned, of the one who is still in prison in Kingston. But all the rest who are out are living under very difficult circumstances, again with no hope, either by them or by us, that is, the government, that it is ever going to be resolved. It is just going to be an indefinite incarceration with no end in sight, ever.

That is the unintended consequence. It is so typical. When we go to that extreme, which is what I see security certificates being, of undermining those basic values that all Canadians believe in, then, in a fear and a panic, we say that we are going to compromise.

We hear all the time that we have to find a balance. The problem when we make the decisions is that the balance is always on the side of restricting rights and in fact we do not find that balance, because again, we do not have the courage to believe in the fundamental values, those rights that we have built since the start of this country and even preceding it, going back into the history that we have from our two founding nations, those rights that we built all through that period of time up to the present. If we do not believe in them, if we do not act on them and if we do not protect them, then it is downhill.

We are going to be faced in the next little while with another attempt. That is part of the problem with the security certificates. It opens the door to us further impinging on our civil liberties. We are going to see, I think some time in the next little while, the government attempting to reinstate some provisions of the anti-terrorism legislation that died about a year ago. It is going to attempt to reinstate them. It will be interesting to see if the official opposition supports that. I think it probably will, with some modification.

But that again, coming back to the certificates, leads us down that path. When we say, as we do with the certificates, that people are not entitled to know the charges against them and that their lawyers are not entitled to know the charges against them, they are sitting there, as with Kafka, having absolutely no ability to defend themselves.

In that regard, it is worthwhile pointing out the experience in England and New Zealand, particularly in England, where they brought in special advocates. The government is proposing to do it here in a very minimalist form compared to that in England. Even then, we had the special advocates quitting. These were lawyers who were extremely experienced, with 20 and 30 years at the bar, mostly in the criminal law area and some in the immigration law area. Even with provisions in their law that were much broader and gave them more authority to be able to defend an individual, even under those circumstances, they quit.

I remember one in particular, Ian Macdonald, writing a very eloquent resignation letter and almost I think apologetically saying that he did this for a number of years, that he was hoping he could make the system work, that is, he was hoping that he could provide protection but make the system work, to advocate on behalf of his client at one remove but be able to do that. Then again, almost apologetically, he was saying that he was wrong, the system cannot be made to work, and he cannot be a real advocate to protect the rights of an individual faced with this procedure.

We have seen similar types of situations in New Zealand. We have seen the commentary from the special advocates there, who were saying that if people did not let them see the evidence and if people did not let them discuss what they did see of the evidence with the person alleged to have perpetrated these crimes, there was nothing they could do, because they could not realistically defend them. That is the reality.

This bill is doubly bad. There was a report by two people, a law professor and a practising lawyer. I have it in front of me. It was a very lengthy report and analysis of special advocacy around the world. In this report, the two authors made a number of recommendations.

With regard to special advocates, I know that both of them were reluctant to suggest that we go that route, but that if we are going to do it, they said, we have to build in all of these protections. We have to give this mandate to the special advocate. We have to provide him or her with these resources. We have to say that he or she is going to have access to the evidence and be able, in most cases, to discuss that evidence.

There is a whole long list of suggestions in the report, but in Bill C-3, the government, supported by the official opposition, adopted hardly any of them. The reason is that it does not want these certificates to be impinged on whatsoever. It wants to be able to use them in their full force. Again, we have heard about the kind of treatment that the people who are subject to these certificates are put through, whether they are in custody or out and living under various forms of house arrest with severe restrictions on their mobility.

There was no intention on the part of the government to really meet the decision it was faced with almost a year ago from the Supreme Court of Canada. The Supreme Court of Canada said that with the certificates as they are, the system is contrary to the Charter of Rights and Freedoms, and in a free and democratic society, it said, it cannot be resolved that way either. It applied both parts of the charter and said that this system does infringe, and no, it cannot be resolved by article 1 of the charter.

A band-aid approach was applied here and it was a minimalist band-aid. I have no doubt in saying while standing in the House--and I rarely do this--that I know that probably within days of this law receiving royal assent it will be challenged again, and it will work itself all the way back to the Supreme Court of Canada.

I am hoping, and I have to say that I am expecting, based on the decision a year ago, that the Supreme Court of Canada will strike this bill down again. Hopefully at that point it will say to the government that the government was given a chance, but that this time the certificates are gone and there is no chance to correct them. Hopefully it will say to the government that it has to use the regular criminal justice system and immigration law to resolve issues that these individuals present to the authorities in this country.

It is the responsibility of this legislature to have paid attention to that Supreme Court of Canada decision and we are not doing it with Bill C-3. When the Supreme Court hears the evidence of how it functions and, more importantly, how it does not function in terms of protecting human rights and civil liberties, I have a very strong belief that it will strike this down.

We will have gone through this process, we will have put those individuals through all that pain, and at the end of the day the certificates will be struck down from our law. I cannot wait for that day.

[Catherine Bell, NDP, Vancouver Island North, BC]

Mr. Speaker, I agree with my colleague from Windsor—Tecumseh, and I too will be voting against the bill.

As I said earlier, I have been getting a lot of calls, letters and emails from my constituents and I know that other members have been hearing from their constituents as well. This tells me that Canadians are very concerned about this piece of legislation and they do not want to see it go forward.

Canadians are concerned about human rights. They want the government to protect human rights not just for Canadians who live here, but for people from other countries who want to live here as well.

These are some of the things Canadians have said in their letters: “The answer lies not in taking away freedoms and the rule of law, but enforcing the law as it currently stands. We have laws to prosecute criminals who create acts of wanton terror and mass murder without creating a special set of secret judicial processes to bring them to justice. Please think about this bill carefully before you vote and decide if it is really in the best interest of Canadians to create a system for us and a system for the rest”.

That is something we need to think about very strongly. Why are there two classes of people? Why are we creating another class of people in this country by putting in place a piece of legislation that would violate the Canadian Human Rights Act, and something that the Supreme Court of Canada has decided against, something that circumvents the criminal justice system?

People have likened this to what happened in the past in the second world war with Japanese people who were living in Canada. I know that story very well because my partner is Japanese and his parents were interred in the interior of British Columbia. I also come from a community that had a lot of Japanese people working in a mill there and they were all removed from the community. Many of them were friends of my mother. She has reconnected with those people. They have told us very sad stories. I would hate to see anything like that ever happen again in this country. It is these things that I want to remind people about when we are voting on legislation like this.

I wonder if my colleague could add some more comments on those points.

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

Mr. Speaker, I do not know if it is possible to appreciate just how offensive this legislation and the practice of the use of these certificates is unless a person is one of the targeted groups.

We can talk to the children and grandchildren of people who were removed, we can talk to those individuals who were incarcerated when the War Measures Act was applied to them in 1970. I have talked with people from the Muslim community and to some degree the Sikh community. They are feeling most vulnerable because their family and friends are still newcomers to this country and could still be subject to one of these certificates. They are sometimes targeted by the country they came from, information is passed to our security people, and they end up being investigated. As my colleague mentioned earlier, so much of that evidence comes from torture.

Those people have to live under a cloud. They are newcomers and they want to speak out but they have a fear of speaking out. There is a chill affecting those communities because of the availability of this kind of device. I do not think people really appreciate that unless they happen to be one of the targeted groups. I will not say that I fully appreciate it. As long as we have this kind of law on the books, people will live under that fear and that chill. It is not good for democracy.

[The Deputy Speaker, Bill Blaikie]

Is the House ready for the question?

[Some hon. members]

Question.

[The Deputy Speaker, 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, Bill Blaikie]

All those in favour of the motion will please say yea.

[Some hon. members]

Yea.

[The Deputy Speaker, Bill Blaikie]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Deputy Speaker, Bill Blaikie]

In my opinion the yeas have it.

And five or more members having risen:

Call in the members.

[Karen Redman, Liberal, Kitchener Centre, ON]

Mr. Speaker, I ask that the vote be deferred until 3 o'clock tomorrow.

[The Deputy Speaker, Bill Blaikie]

There has been a request that this vote be deferred until 3 o'clock tomorrow. It is a proper request, and so ordered.

It being 8:33 p.m., pursuant to order made on Thursday, January 31, 2008, this House stands adjourned until tomorrow at 2 p.m., pursuant to Standing Order 24(1).

(The House adjourned at 8:33 p.m.)

The House resumed from February 5 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 third time and passed, and of the motion that this question be now put.

[The Speaker, Peter Milliken]

It being 3:07 p.m. the House will now proceed to the taking of the deferred recorded division on the previous question at the third 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 #37

[The Speaker, Peter Milliken]

I declare the motion carried.

[Blair Wilson, Independent, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Mr. Speaker, I just want to make sure my vote was cast in favour.

[The Speaker, Peter Milliken]

No. I think the hon. member stood and his vote was recorded as no.

Is there consent to change the member's vote to yes?

[Some hon. members]

Agreed.

No.

[The Speaker, Peter Milliken]

The next question is on the main motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

No.

[Jay Hill, Conservative, Prince George—Peace River, BC]

Mr. Speaker, were you to seek it I think you would find unanimous consent to apply the results of the vote just taken to the motion presently before the House, with Conservative members present voting in favour.

[The Speaker, Peter Milliken]

Is there unanimous consent to proceed in this way?

[Some hon. members]

Agreed.

[Karen Redman, Liberal, Kitchener Centre, ON]

Mr. Speaker, Liberals who voted on the previous question will be voting in favour of this motion.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Mr. Speaker, my colleagues from the Bloc Québécois will be voting against this motion.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

Mr. Speaker, members of the NDP will be voting against the motion.

[Blair Wilson, Independent, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Mr. Speaker, I will be voting in favour.

[Louise Thibault, Independent, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Mr. Speaker, I vote against the motion.

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

I will be voting against, Mr. Speaker.

(The House divided on the motion, which was agreed to on the following division:)

Vote #38

[The Speaker, Peter Milliken]

I declare the motion carried.

(Bill read the third time and passed)

[Jay Hill, Conservative, Prince George—Peace River, BC]

Mr. Speaker, I rise on a point of order. There has been consultation among all parties and I believe you would find unanimous consent that the deferred recorded division on private members' Motion No. 411, currently scheduled for 5:30 later today, be instead taken now.

[The Speaker, Peter Milliken]

Is that agreed?

[Some hon. members]

Agreed.