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.

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.

Immigration and Refugee Protection Act

[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.

[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, 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.

[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.

[The Acting Speaker, Conservative, Royal Galipeau]

It being 6:30 p.m., the House will now proceed to the taking of the deferred recorded division on the motion at report stage of Bill C-3.

Call in the members.

The House resumed from January 31, 2008, consideration of 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 reported (with amendment) from the committee, and of the motions in Group No. 1.

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

Mr. Speaker, I am glad to have the opportunity to speak this afternoon in this debate on the report stage amendments 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. I was pleased to second the amendments put forward by my colleague, the member for Surrey North, on behalf of the NDP caucus today.

It is a somewhat controversial process to suggest that all the clauses of this bill be deleted, but it is a way for us in this corner of the House to show our very serious concerns with the legislation, to show our fears that this is the wrong process to protect Canadians, and to ensure fundamental justice in Canada. In the traditions of this place, putting forward those kinds of amendments is one way of showing that kind of deep concern.

The security certificate legislation is a feature of our Immigration and Refugee Protection Act, but my fear is that we are now using it essentially to prosecute very serious criminal matters, and in fact some of the most serious criminal matters that could face our society, those being terrorism, espionage and threats against the national security of Canada.

What this is saying is that we are prepared to use this lesser immigration process, which is essentially an expedited deportation process, to ensure that dangerous people are kept off the streets in Canada. It seems to me that this is short-circuiting our criminal justice process, especially when it comes to very serious crimes such as terrorism, espionage and threats against national security.

If there is a time when those crimes should be prosecuted, and prosecuted vigorously, it is when we have information about people who are present in Canada and participating in any of those kinds of activities. We should be ensuring that they are charged, prosecuted, convicted and then punished for those activities, but we should be doing it according to the principles of our justice system.

We should not be trying to short-circuit those very basic principles. I think that is what we are doing by using what I believe is a lesser provision of law in the Immigration and Refugee Protection Act to indefinitely detain people who have not been charged or convicted of any crimes and to deny them access to the evidence that is presented against them. They do not have the ability to fully test what is being presented and is leading to their continued detention.

Currently, post-September 11, this is being applied to six people in Canada, five of whom are Muslim men. I am very concerned that these men have had very serious allegations and accusations levelled against them, accusations that will follow them for the rest of their lives and make it difficult for them wherever they live, here in Canada or in any other country. Once people are labelled as suspected or accused terrorists, especially in the current world climate, their lives become very difficult.

Given 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 some lesser process. That is why I am fundamentally opposed to this legislation.

I would like to see us repeal the provisions of the Immigration and Refugee Protection Act relating to security certificates. If there is a problem with our criminal law such that we are unable to prosecute people accused of these very serious crimes, then we should fix those problems in our Criminal Code to ensure that this kind of prosecution can take place.

I am also concerned that if the security certificate process went through to its logical conclusion, these people could be deported to countries where their lives would be in danger or where they might be subjected to torture. Canada must never deport someone to torture. We should never deport people when we have reason to believe that they will be killed once they return to their countries. We have a responsibility in that matter. Ultimately, the security certificate process allows us to avoid those kinds of responsibilities. We must never deport someone to torture.

I have to reiterate that using the security certificate process as provided in our immigration law is a lesser process that does not meet the important and longstanding traditions and standards of our criminal justice system. The appropriate way to deal with these very serious crimes is under the Criminal Code.

Of the five Muslim men who are currently the subjects of the security certificates, Hassan Almrei is the only detainee now being held at the Kingston Immigration Holding Centre. “Holding centre” is a nice way of describing what it actually is. It is a maximum security prison within a maximum security prison.

It is a maximum security prison located within the walls and the fences of Millhaven maximum security penitentiary, so it is not exactly a picnic of a place to be. I have been there on several occasions. It is a very difficult place. To be detained there indefinitely is I think a very severe penalty for anyone, especially someone who has never been charged or convicted.

Mr. Almrei is the only prisoner there. I believe that raises serious issues of solitary confinement, which we have to struggle with in this place and in our justice system. I do not think it is ever appropriate to hold someone in solitary confinement for a long period of time. Now that Mr. Almrei is the only prisoner there, that is the situation he faces.

The other four men who have been released on very strict conditions, Mohammad Mahjoub, Mahmoud Jaballah, Adil Charkaoui and Mohamed Harkat, are living with very difficult requirements. There are very severe restrictions on their lives and the lives of their families.

The reality is that those four men have been released from detention because they have family members who have been willing, on behalf of Canadian society, to act as their jailers. I think that is a very difficult proposition to put to any family member: that on behalf of Canadian society they should have to be responsible for one of their loved ones 24 hours a day, seven days a week, to make sure they remain in custody and meet these very rigorous conditions.

The effect on the lives of those families is very severe, and again, when their loved one, their father, brother or spouse, has never been convicted of or charged with a crime in Canada. These are very severe restrictions and we see how difficult it is for these families. We have seen just recently how Mr. Harkat has been arrested for an alleged breach of his release conditions. We are waiting anxiously to hear the outcome of his hearing today.

In a sense, I believe that those conditions have been set so strictly so that they will fail. It is hard to imagine how anyone could live under those conditions. It is a testament to the strength of the relationships in those families that they have been able to hold those families and those relationships together given the conditions that they are required to live in.

I am very convinced that this legislation violates some of the fundamental tenets of our justice system and that it uses a lesser mechanism in immigration law to deal with one of the most serious criminal issues that could face our society, that being terrorism or threats against our security. That is why I strongly will be voting against this. I am glad that the New Democrat caucus in this Parliament will also be voting against it.

[Roy Cullen, Liberal, Etobicoke North, ON]

Mr. Speaker, I appreciate the emotion the hon. member put into his remarks. One of the things that I think he got wrong is that security certificates have been around for about 30 years. In fact, they were brought in during the Trudeau era, the same prime minister who brought in the Canadian Charter of Rights and Freedoms. They are not a new vehicle. In fact, Bill C-3 and the work of our subcommittee and the decisions of the Supreme Court are actually going to lead to improvements in the process.

I will never forget a meeting we had of the Subcommittee on Public Safety and National Security when we were reviewing the anti-terrorism legislation. Someone from the Department of Public Safety and Emergency Preparedness brought forward a briefing document that was a dossier on someone who was being detained under a security certificate in Canada. The dossier had to be blanked out for the sources of information, but it was a chronicle of the charges that were made against an individual as to why the individual was being detained under a security certificate.

There was also someone from the B.C. Civil Liberties Association on the witness panel.

There is another misunderstanding people have. A person detained under a security certificate understands fully why he or she is being detained. What the person does not know are the sources of the information. It is the role of the judge to make sure that that information is corroborated and reliable and not the result of torture. That is why the special advocate process will improve that sort of process.

When this dossier was presented to the subcommittee, I recall asking the member of the B.C. Civil Liberties Association if he would like the person being detained under a security certificate to be his next door neighbour. This individual, who is someone from a civil rights organization, said no. I asked him what the problem was and he replied that the problem was the process.

That is why we are here today debating Bill C-3. This bill will improve the process. Will it be a perfect solution? Of course not. Our primary responsibility as parliamentarians is to protect the safety and security of Canadians. There is no perfect balance between dealing with those responsibilities and protecting the civil rights of Canadians.

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

Mr. Speaker, I want to begin by making a statement, which is that suspicion is not guilt.

This past summer I had the occasion to travel to Edmonton to speak to some new Canadians and then some well-established Canadians from the Muslim community.

I was sitting with a gentleman who had been in Canada for 30 years. He had been a contributing member to the society in Edmonton for 30 years and was well respected in his community and in the broader community. He was telling me how, following 9/11, investigative officers from CSIS would drop by and speak to him about all the money that he was sending home, the money he had been sending home for 30 years to raise the standard of living for his family in his homeland, a commitment that we would all do.

In fact, I myself celebrated an anniversary recently of 40 years moving from New Brunswick to Ontario. In some people's minds that is like coming to a new world, at least it was in the sixties. Some of the good Canadians from the east coast would send some of their money back home in the same way. I was never questioned but perhaps I was fortunate that it was a different time or that I had different colour skin than the other gentleman.

What is happening to us as a country is a tragedy. It is an affront to our democratic processes that has occurred in the reaction that has followed 9/11. It has followed the Americans' approach to 9/11 and the Americans' fight on terrorism.

I rise to speak on security certificates, but I wish to heaven I would never have to do this again. I believe, along with the rest of the NDP caucus, that Bill C-3 continues to fail Canada and Canadians.

Canadians are not more free because of Bill C-3 and they certainly are not feeling any more secure. Furthermore, the NDP opposes Bill C-3 because, as we have heard repeatedly in this place, there are already measures in our Criminal Code to deal with the activities, 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 the presentation of evidence that would support the accusations against a person who is accused or suspected of terrorist activity. Instead, the security certificate simply removes the individual from Canada and in doing so, in my opinion and as expressed earlier by the member for Trinity—Spadina, it fails Canadians. If the individual is actually guilty, then a process should be enacted in this country to deal with that guilt.

A security certificate does not offer or support justice for either the accused or for Canadians. In fact, security certificates in themselves are an affront to Canada's national sense of what justice is. If the accused is guilty, the person should be charged and tried under our Criminal Code and the appropriate penalties applied and then the person should be deported, but not held in detention without the opportunity to face his or her accusers or see the evidence against him or her.

There is another side to this. The people in detention who proclaim their innocence and have not had a chance to speak to it in a court of law, the day comes when they are found to be innocent. If they had gone through our Criminal Code procedures, our courts, our justice system, they would have had a right to return to Canadian life, to pick up where they had left off, pick up the pieces. But they have spent years upon years in detention and again they have not been able to see the evidence against them, to refute the evidence, the most fundamental tenets of our justice system. That has put a chill through our country.

I alluded to the individual in Edmonton, Alberta, but there are more cases than that individual. Talk to Mr. Almalki who was detained in a cell which was more like a coffin for three months. We all know the case of Maher Arar. We all know when we fail, and we are setting ourselves up for failure again.

I am pausing because I tend sometimes to get a little emotional. I was raised to take great pride in our justice system, the fact that people can face their accusers and walk away. I am going to be speaking later today about a family incident and I will give a small piece of it here to make the point of what I understand is our justice system.

My sister was strangled to death as a 10-year-old child. My father was mistakenly accused of that crime. We were a poor family. A great fear went through us that we would not be able to save my father from those accusations. Later he was proved to be innocent and there was a mentally disturbed person in the family who was dealt with and spent time in an appropriate hospital following that. Let us consider for a moment the place we are putting people, where they cannot face their accusers and they cannot refute the evidence, and how terrible that is.

From time to time I will do my best to take a breath, but it is so 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 if we gerrymander process, to put in place a process like this that is so ugly and disgusting. I cannot understand how anybody in this place could support it.

Our Criminal Code is among the best. Our justice system is among the best in the world. Canada will send people to other parts of the world to teach them our justice system. We should keep that pride. One of the few ways we can keep that pride is to ensure individual rights and the rights for people to face their accusers and the evidence against them.

For the NDP, the security certificate is an affront to civil liberties. There is a sense in my gut of how wrong this is that I just cannot put it aside.

We understand with Bill C-3 that the Conservative federal government is trying to address a flaw in the process that was pointed out by the Supreme Court. It is far more than a flaw. What it is trying to do today is move around something that was a violation of our Charter of Rights and Freedoms.

We should think about rights and freedoms for a moment. We should think about the fact that there are individuals detained in our country. Their freedom has been taken away and they have no rights. We have a Charter of Rights and Freedoms.

Imagine the setting aside of well respected, fundamental terms of justice and how that was so cavalierly done. The detainees have not seen any of the critical evidence against them. Their legal representation has not seen the evidence against them.

Let us just say that tomorrow, for whatever reason, it is deemed acceptable that they return to Canadian society, that there had been an error. They will always be besmirched by the fact that they have been detained. They will always live beside neighbours who doubt them. If they returned to their country of origin, many of the countries those folks would return to are countries where we know torture is committed. It is time for our country to take a strong stand for the liberty, for the human rights of our citizens and guests in our country, as well.

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

Mr. Speaker, in Canada we have the Canadian Charter of Rights, a charter that makes us very proud. We talk about it with our friends who visit us from other parts of the world. It is one of the reasons that a lot of immigrants come to our country. We are mighty proud of the Canadian Charter of Rights.

In the Charter of Rights we give every person in Canada the same rights: the right not to be tortured, the right to be treated equally, all rights under the law that are basic fundamental rights. The charter is supposed to protect every individual in Canada, which means that if Canada does not tolerate torture then we do not want to see torture in other countries.

Bill C-3, regarding security certificates, treats people as two kinds of human beings. One kind is Canadian. The other kind is everyone else who may be subjected to a security certificate. A person, for whatever reason, could be given a security certificate without the person having any idea what the Canadian government has against him or her. It is supposed to be a national security issue.

In Canada, one would think that people who commit a crime would be charged and, if convicted, they would go to jail and be punished. Actually, the security certificate in Bill C-3 sets up a second class of human being. They will not be charged nor convicted. They will not be jailed nor punished.

I keep hearing the Conservative government and the Liberals saying that they want to be tough on crime. If they want to be tough on crime, why are they not punishing people who are supposed to be criminals? What are we doing with them? We just deport them back to their own country.

If they are real criminals, why do we want them to be deported elsewhere? They may be terrorists and we are supposed to be having a war on terror. If they are terrorists, rather than charging and jailing them here in Canada and keeping them under lock and key in a place that is secure from the rest of the world and from Canadians, we deport them back to their home country.

If people are real terrorists and they are set free in their home country, they could wreak havoc in their home country. They may even come back to Canada and who knows what will happen. I thought we were supposed to be tough on criminals.

How does deporting a person from Canada make Canadians safe? I do not know. Why are we afraid of the truth? What does the Canadian government have to hide? Are we seeing a pattern? Why are we keeping the offence hidden from Canadians and from members of Parliament? We do not know, Canadians do not know and the lawyers do not know what kind of offence was committed. The person detained has no idea what kind of offence he or she is being charged with.

What is the minister afraid of? Why will the government not tell Canadians the truth: that it believes the person is a security risk and that is why the person will be jailed and punished.

This kind of thing is a real problem. I will give some examples of people disappearing and people not knowing exactly what happened to them.

A story recently came to light about a gentleman named Benamar Benatta whose timing was really unfortunate. He came from New York City to Canada to declare refugee status just before the September 11 attacks a few years ago. I believe he was born in Algeria but left because he did not want to do what his country wanted him to do.

He joined the military at the age of 18, had some basic training, went to university and became an engineer. After graduation, he went back to the military and started teaching. He was uncomfortable with the military crackdown in Algeria after the 1992 general election so he decided to move to the U.S. However, because he spoke French he thought that rather than stay in the U.S. he would move to Canada where he would feel comfortable being in a bilingual country. He said, “I had the impression that Canada had protection for human rights. Hell, it depends what kind of human beings. If you are not Canadian you may not get protected”.

What happened? He came across the border, declared refugee status but was put into the back of a car and driven to the U.S. He was then jailed in New York where he was held with 83 other people who were high interest suspects of FBI investigations. He could not get to a lawyer. He said that he repeatedly had his head slammed against the wall, et cetera, and interrogated.

However, by November 15, 2001, the FBI decided that it did not have a case against him and officially cleared him from any connections to terrorism but he remained in detention.

After almost four and a half years, he was able to be finally return to Canada. I will not bore members with all the details, but it went back and forth. It was because of the good work of the Canadian Council for Refugees that he was able to get back to Canada. This person was a refugee claimant and, by the way, his refugee claim has been dealt with and he is now formally a refugee in Canada, so obviously he has a good case. This poor innocent man was in jail for five years because Canada was so afraid of people who may cause terror that the man was denied the basic fundamental rights that we accord every human being in Canada. We did not give him fair treatment, in my mind, and as a result he lost five years of his life.

Under this security certificate in Bill C-3, we will be sending people back to their home country. If they face torture that is fine with us. As long as we and the Canadian public do not really know what the charges are, perhaps we can say that we will be blameless.

That is not my definition of accountability, of being tough on crime, of being tough on criminals and certainly not my definition of being a proud Canadian.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Mr. Speaker, the bill was introduced following a decision handed down by the Supreme Court in February 2007, which stated that the procedure for the judicial approval of security certificates established by the Immigration and Refugee Protection Act was inconsistent with the Canadian Charter of Rights and Freedoms and, furthermore, that it was of no force or effect. First of all, I have serious doubts about five particular provisions of Bill C-3.

First of all, arrest without warrant is a serious concern to us. As we know, a warrant can be obtained very quickly if sufficient evidence is presented to a judge. Why is this not the case here?

Second, are security certificates really necessary? Yes, they are, in very exceptional cases. They should only be upheld if the individual is considered dangerous beyond any reasonable doubt. However, with this bill, reasonable doubt is sufficient grounds for the continuing detention of a permanent resident or foreign national subject to a security certificate.

My third concern is whether it is acceptable for the term of incarceration to be indefinite. People are sent to prison but not told how long they will be there, and that evidence is being gathered. Deadlines keep getting pushed back. We are worried about the fact that people can be detained indefinitely. The mere fact that indefinite detention is possible for subjects of security certificates seems extreme to us.

For how long can a society that claims to abide by the rule of law keep people locked up with no evidence that they have committed a crime? It makes no sense that in a free and democratic society, people can be detained without ever having been found guilty following a trial.

My fourth point is that special advocates are not given access to all of the evidence. We think it is important for a special advocate bound by solicitor-client privilege to have access to all of the evidence. Currently, they may be given only a summary of the evidence, but we think they should receive the evidence in its entirety. We think it is important for advocates to be able to defend the rights of an individual facing deportation.

The people involved should be able to select security-cleared advocates from the Minister of Justice's list. Is it not logical to ensure that special advocates have the resources they need to do their jobs? Special advocates should also be allowed to see their clients more than once so they can get additional information once they have received the evidence.

My fifth point is that, clearly, appeal procedures have to change.An appeal will only be allowed if the judge, having heard the government's and the special advocate's representations, upholds the order for removal or incarceration. If the individual cannot be deported, there can only be an appeal on a question of law or general interest raised by the judge. For the individual concerned, it is not very reassuring to know that the person confirming the deportation is the same one who drafted the notice of appeal.

I do not understand why the government went so far. A similar burden does not exist elsewhere in the law, at least not in our law. I still have a number of very serious reservations about Bill C-3.

[Roy Cullen, Liberal, Etobicoke North, ON]

Mr. Speaker, I know that in the hon. member's riding, he has a large population of Muslim Canadians, as do I. In fact, I think my riding has the third largest population of Muslims in Canada.

Some of the Muslims in my riding are not very happy with my stance on these particular issues. However, I can tell the House that the mainstream Muslim community that represents the vast majority of Muslims in Canada, I believe, have told me the reason they came to Canada was to escape the kind of intolerant societies, the risk to their personal lives, the corruption and the violence that goes on in those countries. They want a country that is safe for them and their children.

I am not suggesting they would all agree with Bill C-3, and we on the Liberal side are not suggesting that the bill is perfect. However, in response to threats to Canada, I think it is a reasonable solution. Ultimately, it could be challenged in the Supreme Court and the Supreme Court will decide.

I should say that the subcommittee--

[Roy Cullen, Liberal, Etobicoke North, ON]

Mr. Speaker, I am very pleased to rise to speak to Bill C-3, the government's response to the Supreme Court decision with respect to security certificates and also the government's response to the Standing Committee on Public Safety and National Security and the subcommittee that reviewed this aspect.

Getting the balance right between the civil liberties of citizens and the duty to protect citizens from criminals and terrorists is never easy.

I must say, in Bill C-3, the legislation we are debating today, I believe the government has made an attempt to achieve that balance. The government has paid attention to the work of the House of Commons Standing Committee on Public Safety and National Security and the subcommittee on the Review of the Anti-terrorism Act.

Recommendations of the subcommittee relating to the use of special advocate for processes other than security certificates, that is the listing of terrorist entities, the deregistration of registered charities and denial of charitable status, and applications for the disclosure of information under the Canada Evidence Act are still under study by the government. The government has, however, incorporated the subcommittee's recommendation to employ special advocates counsel for the security certificate process.

Security certificates are not a post-9/11 product. They have been around for more than 30 years. They are an instrument used very sparingly. Only 28 security certificates have been issued since 1991 and only 6 since September 11, 2001. Nineteen individuals have been removed from Canada as a result of security certificates. They are used to remove from Canada foreign nationals or permanent residents, not Canadian citizens, who are deemed to be security risks to Canadians. Individuals detained under security certificates may leave Canada at any time. Admittedly it is not always possible to find a jurisdiction that will accept these people or locate a jurisdiction that will not torture or cause them harm once they arrive. However, there have been many successful removals.

The subcommittee of the House of Commons Standing Committee on Public Safety and National Security reviewed the anti-terrorism legislation, which was required after five years that it was brought into play. The committee decided to include a review of security certificates even though they were not a feature of the anti-terrorism legislation. They are instruments administered by Citizenship and Immigration Canada.

I had the honour to work on this committee and participated in the review of the anti-terrorism legislation. Testimony from witnesses completed in the 38th Parliament before it was dissolved. Therefore, we had witnesses in the 38th Parliament and that testimony was regurgitated or brought back before the new Parliament. The subcommittee and the standing committee issued an interim report in October 2006 and a final report in March 2007 in the 39th Parliament.

The interim report had to be released to deal with the provisions of preventive arrest and investigative hearing contained in the Anti-terrorism Act. These provisions had been sunsetted and were about to expire.

There is often misinformation in the minds of the public about how security certificates work.

For example, the individual about to be detained is informed of what they are accused of. What they are not told is the sources of information employed by the Canadian authorities (CSIS, RCMP etc.) to convince a judge that the person constituted a threat to the security of Canada.

Persons detained, as I said earlier, may also leave Canada at any time. This can be problematic, admittedly, for some individuals for some countries. However, there are examples of people returning to their countries and not being persecuted.

The security certificates process has been challenged in the courts in Canada and had been affirmed as not violating the Canadian Charter of Rights and Freedoms. However, on February 23, 2007, the Supreme Court of Canada pronounced that the security certificates process was inconsistent with the requirements of the charter.

The Supreme Court concluded that these provisions of the act that allowed for the use of in camera, ex parte proceedings from which the named person and his or counsel were excluded violated the right to life, liberty and security of a person under section 7 of the charter.

The court found that the right to a fair hearing included the right to a hearing before an independent and impartial judge who decided the case on the facts and the law, the right to know the case that had to be met and the right to meet that case. Since evidence heard in camera and ex parte could not be tested by the named person and could not be disclosed by a judicially authorized summary of that evidence, the provisions of the act violated section 7 of the charter, the right to liberty.

The court also concluded that the provisions could not be saved by section 1 of the charter as being demonstrably justified limitations necessary in a free and democratic society. The Supreme Court gave Parliament one year to replace and reform the relevant provisions of the act.

The court made reference to the existence of special counsel, special advocate or amicus curiae measures used in Canada and in the United Kingdom where there was a requirement to protect sensitive information while still recognizing the right of individuals to meet the case with which they were confronted.

With respect to security certificates, our committee recommended changes to the process in our March 2007 final report. We recommended the use of security cleared special advocate counsel for the security certificate process, but also for the listing of terrorist entities under the Criminal Code, the deregistration of registered charities and denial of charitable status to applicants under the Charities Registration (Security Information) Act, and applications for the disclosure of information under the Canada Evidence Act.

These three processes all have star chamber characteristics, in my judgment and in the judgment of the committee, and we recommended changes to improve the transparency and fairness of these processes. In Bill C-3 the government has accepted the recommendation to create special advocates to deal with security certificates.

With respect to the use of special advocates for processes other than security certificates, the ones I have just mentioned, the government, in its response to the subcommittee's report this summer, seemed to be lukewarm. The government's comment was as follows:

At the present time, the Government believes that further study of the use of special advocates in other processes is required.

I am hoping that the various government portfolios are still reviewing that and I would like to see some action on that in the future or a wholesome and fulsome response.

It would appear that changes to these other processes are not reflected in Bill C-3 and hopefully they will come later. These processes have the same in camera, star chamber qualities, in my judgment.

The role of the special advocate counsel is spelled out in clause 85 of Bill C-3.

The subcommittee of the House of Commons Standing Committee on Public Safety and National Security had other recommendations on the topic of security certificates. One of these was as follows:

The Subcommittee recommended that sections 79, 81, 112, and other provisions of the Immigration and Refugee Protection Act be amended so as to allow for an application to the Minister of Citizenship and Immigration for protection only after a security certificate has been found by a Federal Court judge to be reasonable.

In its response to the House of Commons report, the government responded this past summer to this recommendation as follows. The government stated that it agreed “with the stated objective of making the process more expeditious and will examine methods to do so”.

Bill C-3 eliminates the suspension of consideration of the reasonableness of a security certificate that occurs when a person named in it makes an application for protection. In addition, Bill C-3 requires that a judge of the Federal Court must commence a review of the detention within 48 hours.

With these two provisions, the government has responded to the recommendation of the sub-committee on this matter. This improves the sequencing of the process such that people will not be seeking protection from being sent to a country where they would be at risk until a Federal Court has determined whether or not the security certificate is reasonable.

The sub-committee also recommended the following for security certificates:

The Subcommittee recommends that section 78(j) of the Immigration and Refugee Protection Act be amended by adding the words “reliable and” before the word “appropriate”.

The government has incorporated this wording into section 83(1)(h) of Bill C-3. In my view this provides greater certainty that evidence presented to a judge, if obtained by torture, will be inadmissible. Our party at committee introduced amendments to make that even more clear. I am glad to say that the government supported that amendment as well.

Bill C-3 addresses the key concerns of the Supreme Court of Canada and the report of the House of Commons Standing Committee on Public Safety and National Security. For these reasons, I believe Bill C-3 deserves the support of the House.

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

Mr. Speaker, I do not know if the member saw a news report in the Ottawa Citizen earlier this week, a story about how the government is having difficulty finding lawyers who are willing to act as special advocates, who are even willing to apply for the position. Apparently, so far only 50 have responded to the month-long recruitment campaign.

There were reasons given for that by two very prominent legal experts. Lorne Waldman, a very prominent immigration lawyer, actually an expert on the special advocacy process, said, “Given the nature of what the lawyers are being asked to do, it does not surprise me that there has not been an overwhelming response”. He further went on to say that the system “fundamentally abrogates” the right of the accused to know the evidence against them. He points out very serious problems.

Vanessa Gruben, a law professor at the University of Ottawa, also says that she thinks that the low number of applications for special advocate positions may stem from concerns about the proposed security certificate legislation.

There are concerns among the legal community that the model proposed in Bill C-3 falls short of the constitutional standards set by the Supreme Court. That is also supported by the Canadian Bar Association and the Federation of Law Societies in Canada.

I wonder, given those very serious concerns, why the member can support this legislation.