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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Let me say what the bill does.

It allows a special advocate to protect a person's interest in certain proceedings when the evidence is heard in the absence of the public and of the persons and their counsel. The special advocate may challenge the claim made by the minister of public safety and emergency preparedness as to the confidentiality of the evidence as well as the relevance of the evidence, the reliability of the evidence, the sufficiency and weight of the evidence and may make submissions, cross-examine witnesses and with the judge's authorization, exercise any other powers necessary to protect the person's interest.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Penny Priddy, NDP, Surrey North, BC]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Dave MacKenzie, Conservative, Oxford, ON]

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

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

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

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

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

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

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

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

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

[Dave MacKenzie, Conservative, Oxford, ON]

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

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

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

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

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

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

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

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

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

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

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

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

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

[The Acting Speaker, Conservative, Royal Galipeau]

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

The House resumed from October 26 consideration of the motion that Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, be read the second time and referred to a committee.

Business of the House

[Peter Van Loan, Conservative, Leader of the Government in the House of Commons and Minister for Democratic Reform]

Mr. Speaker, because the official opposition was in disarray or whatever, it was unprepared to stand in the House and ask the Thursday question last week. As a result, I was unable to inform the House that this week's theme is “Effective Economic Leadership”.

I am proud to say that to date, we have been very successful.

Yesterday, the House approved the government's budgetary and economic plan to provide tax relief to Canadians by reducing the GST to 5% and cutting personal and business income taxes.

Tomorrow, we will continue to provide effective economic leadership by debating Bill C-7, which would amend the Aeronautics Act; Bill C-15, which would assist in developing natural resources, in Nova Scotia in particular; Bill C-4, which would amend the Pilotage Act; and C-14, which would amend the Canada Post Act.

If time permits, we will also continue with our plan to tackle crime and strengthen security by debating Bill C-3, which would improve the security certificate process.

Next week will be “Honouring our Veterans Week”, allowing members to be in their ridings during this important time.

Today, I would like to recognize the member for Bruce—Grey—Owen Sound who worked hard to make it a reality.

When the House resumes, we will carry on with our very full legislative agenda for democratic reform.

Therefore, I am proud to inform the House that the theme for that week will be “Strengthening our Federation through Democratic Reform Week”.

On Wednesday, November 14, the government will discuss Bill C-6 concerning the visual identification of voters.

We will also be debating legislation that we put on notice last night to address the issue of verification of residence for rural voters.

We hope that the opposition parties will work with the government to pass these two bills quickly before a general election or byelections take place.

We will continue to work toward increasing voter turnout by debating our expanded voting opportunities bill in committee, which would increase the number of advance polling days.

We will also move forward with other parts of our agenda to modernize Canadian democracy.

By debating and passing these legislative initiatives, we will strengthen Canada's political institutions and enhance public confidence in the integrity and accountability of those institutions.

Finally, Tuesday, November 13, will be a supply day, and today we will resume debate on the opposition motion.

Canada Evidence Act

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, I support and speak in favour of this bill, along with my party.

Many things that have been discussed and put forward in support of this bill, but some of those ideas and concepts bear repeating. I hope to touch on a couple of other facets of the bill that are worthy of underlining.

I will say at the beginning that we do support this bill and, if there are ways to improve it, it will be done at committee.

One of the things that is most disturbing in any democracy is any attempt to close off or shut down the freedom of the press. Members will know of the most recent events around the world where the rights of the press have been suppressed. I think of the recent situation that we are watching with great unease in Burma. When we look at the freedom of the press, which seems to be challenged around the world these days, and certainly this has been documented, journalists are having a harder time doing their jobs.

Many of us in this place from time to time might disagree with how journalists contemplate or exercise that freedom but no one in this place would be in any way critical of their right to have an opinion and to ensure it is unfettered, with some obvious qualifications and responsibilities.

I say that in general because this is too important an issue to play partisan politics with. This is a foundation of our democracy, that is, the freedom of the press and the freedom of those who are practitioners in the fourth estate, to ensure they are able to do their jobs without the state interfering unnecessarily.

Therefore, the bill in front of us is critical. What is being attempted here meets the nod test from us but we need to ensure there is more clarity for judges, that there are cleaner and clearer guidelines for judges.

We have mentioned the case of Juliet O'Neill from the Ottawa Citizen. Many of us, not only in my home town here in Ottawa, were aghast at what happened in that case. I think people right across the country and indeed those who were following the story internationally, were surprised, saddened and very concerned that this could happen.

If we look at what journalists' responsibilities are, they have many, but they have a responsibility to protect sources at times. We see this not only in the field of journalism but in the field of litigation. We see it with lawyers and with doctors. We actually see it with those who are from faith communities, that there is some delegation of trust. I think most people understand that there is an understanding and a responsibility of confidentiality.

What is the responsibility of confidentiality, in this case of journalists, and the role of the state for reasons of national security? How are those two things dealt with? How do we navigate those waters?

The bill sets out to lay down some criteria that is important. A colleague from the Bloc has already spoken about this. The first couple of paragraphs of the bill are more or less descriptive and then we get into the meat of it, particularly when we get into section four, and that is the power of the judge. Judges may, on their own initiative, raise the potential application of subsection three and ask the prosecution and the defence and any other party to present an opinion on the matter. I think that gets things going.

Then we get to subsection five, which reads:

A judge may not order a journalist to disclose to a person the source of any information that the journalist has gathered, written, produced or disseminated for the public through any media, unless the judge considers....

There is where we get the required clarity, the clarity that was required certainly in the case of Juliet O'Neill and other cases. We see from today's Quorum that some La Presse journalists are being challenged in this very area. I cannot get into the details of the case, nor will I, because it is being debated now, but I will just point to the fact that this is an ongoing concern. Certainly it does not just affect journalists like Juliet O'Neill, but at present also some journalists at La Presse.

It means that this sequence of events where the judge must follow the laid-out criteria is what has been missing. Again, if there are other facets that need to be dealt with at committee, then so be it.

Proposed subsection 39.1(7) regarding disclosure states:

A journalist is required to disclose information or a record that has not been published only if the information or record is of vital importance and cannot be produced in evidence by any other means.

That is another important facet that had not been addressed. When we move on to proposed subsection 39.1(8) about search warrants, that certainly was a cause of concern before. It deals with the Criminal Code and talks about the criteria and the further clarity required.

In essence, the bill is trying to fine-tune the debate we have had since freedom of the press has existed, and that is the time honoured tradition of those who are in the fourth estate being able to practise their trade on the one hand and on the other hand to make sure that if there are issues of national security, they have worthy protection, as well.

Because of the times in which we are living, it is of absolute critical importance that a balance be struck, and that the clarity that is needed for judges be provided. I say that because of some other considerations we will have before the House, in particular, Bill C-3, which was tabled today.

We have had concerns about how we deal with border security, as recently as yesterday when a retired colonel from the American military was not allowed into our country because of being on an FBI watch list.

Freedom of the press and freedom of expression are critical in the atmosphere in which we are living. They are the foundation of our democracy. If we are not able to find the balance now, we will regret it later. If journalists are not able to protect their sources, we know what will happen. We have seen it around the world and in history. People will no longer come forward. It would not only affect members of Parliament in not being able to find critical analysis because information would not be shared, but citizens in general would not have the information they need to hold institutions to account.

I will end my comments with the plea that we need to follow up on this bill quickly. We need to support it in a non-partisan fashion because it is so important that all those in the business of journalism be able to practise their profession without any fear.

We hope that the government will come forward on one other aspect that needs tweaking, and that is on freedom of information. The government promised after the passing of Bill C-2, the accountability act, that it would act on that. It is one thing to protect sources, but it is another thing to have access and a window to the business that government does.

While we need speedy passage of this bill, which is something we support, we also look forward to and hope that the government will fulfill its promise to bring forward changes to the freedom of information act. Until that time, we know that it will be difficult for journalists not only to ply their trade, but to have a clear window on what government is doing.

Immigration and Refugee Protection Act

[The Acting Speaker, Conservative, Royal Galipeau]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How would the process work?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Stockwell Day, Conservative, Minister of Public Safety]

moved for leave to introduce 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.

(Motions deemed adopted, bill read the first time and printed)