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.

[Rob Oliphant, Liberal, Don Valley West, ON]

Thank you, Mr. Chair.

Mr. Minister, you're the Minister of Public Safety and you said that some of the work our committee has undertaken, since this review that you felt should have been done, is trivial and of a partisan nature. I'm wondering which work our committee has dealt with in the last two and one-half years that you would consider trivial. Is it Bill C-3, to amend the Immigration and Refugee Protection Act? Is it our work on contraband tobacco, the witness protection program, the study of security issues concerning the Minister of Foreign Affairs, our taser study, agri-chemicals and agri-retail, arming of the CBSA officers? Is it Bill C-12, regarding emergency management? Is it Bill C-279, DNA identification? I could go on.

It has been significant work that this parliamentary committee has dealt with, none of which has been trivial, all of which may be partisan to some degree. But I would argue that it is unfair for you to assess this committee's work as either trivial or partisan.

Because I know you can run out the clock with that statement I want to ask you: were you aware that our committee was in the final process of finishing our report, and actually we changed our agenda, when you introduced this legislation on June 1 so you would not take advantage of our interest and expertise in this area?

It was not one year away, as you just suggested in your testimony.

[Diane Finley, Conservative, Haldimand—Norfolk, ON]

Thank you very much, Mr. Chair and honourable members.

Je vous remercie, monsieur le president et honorables députés.

Today I have the honour of placing before the committee my department's main estimates and supplementary estimates (A), both for the fiscal year 2008-09, for which I seek the committee's approval.

I propose to cover only some of the major items in my remarks, and address any areas of particular interest to the committee in the time allotted for questions. But before I proceed, I would like to put our commitments in the main and supplementary estimates in context.

Our government is committed to helping newcomers build a better life for themselves and their families. Our vision is to ensure that the people who have gone through so much to get here can get the jobs they need to succeed, because their success is our success.

That's why in 2006 we began investing an additional $1.4 billion over five years for settlement funding, for programs that help newcomers find jobs and get settled in their new communities.

We also made it more affordable for immigrant families to come here. We did this by cutting in half the right of permanent residence fee, saving a family of four almost $2,000.

We're lifting caps on the provincial nominee programs because we want to make it easier for provinces to bring in the people with the right skills, the right education, and the right work experience for local needs. Lifting these caps will also help us to overcome regional differences when it comes to access to skilled labour.

We are also allowing foreign post-secondary students to work off-campus now for the first time ever.

The interest in this change has been immediate. In 2005 there were just under 1,200 such students who worked off campus, and last year that number had exploded to more than 17,000.

Just recently, I was proud to announce a major expansion of the post-graduation work permit program. International students will no longer be required to work in an area directly related to their program of study or to obtain a job offer prior to being issued a work permit. In addition, the duration of the work permit has been extended to up to three years across the country. Previously, the program allowed international students to work for only one or two years, depending on the location.

This expansion of the program is great news for foreign students, and it's great news for Canada. Foreign students will now be able to get a work permit and then get a job. This will help to increase their independence and will give them much needed Canadian work experience. And it will give Canada an immediate source of talented Canadian-credentialled workers.

We have also kept our commitment to create a foreign credentials referrals office. This office helps would-be immigrants find out where and how to get their foreign credentials evaluated before they even get to Canada. It also provides a wealth of information about local labour markets, including current job postings and suggestions of related professions.

By identifying any gaps between the immigrants' credentials and Canadian standards, would-be newcomers can get to work upgrading their skills before they even get here, especially with the wide range of international partnerships that our post-secondary institutions are developing around the world. And that's good for all of us.

This information is also available to immigrants who are already here, through the website and the 320 Service Canada locations across the country. Since its launch less than a year ago, credentials.gc.ca has had over 250,000 hits, and by far the majority of those have been from overseas. So it's working.

On top of that, we've expanded pilot orientation programs started in India, China, and the Philippines by Human Resources and Social Development Canada and the Association of Canadian Community Colleges. These programs not only help immigrants check out their credentials, but also help them know what to expect when they get here, right down to how to buy a house or which bus to take to get their social insurance number.

So, Mr. Chair, our actions have shown our commitment to newcomers and their families.

With respect to the main estimates before us, the committee will note that the total main estimates for 2008-09 are just over $1.3 billion, an increase of just over $132 million, or 11%, from the previous year. This is due primarily to additional funding approved for three key initiatives: first, continued support of the Canada-Ontario Immigration Agreement and additional settlement funding for other provinces, totalling just over $156 million;

second, enhancements to the temporary foreign worker program, totalling $5.2 million.

and finally, the establishment of and operating funds for the Foreign Credentials Referral Office, totalling $2.4 million.

Mr. Chairman, I realize this is earlier in the year than you normally review supplementary estimates, but, as the President of the Treasury Board recently noted, by tabling these estimates earlier, the government is taking another step to enable Parliament to review the numbers earlier in the year and ensure the timely processing of budgetary commitments.

With respect to the supplementary estimates, I'd like to draw your attention to the following items in the estimates, which reflect appropriations totalling just over $21 million.

First, I wish to note that the department is requesting authority for an amount of approximately $8 million to provide first-year funding to modernize the immigration system and manage the backlog. This will allow the department to implement various administrative and efficiency measures.

Second, the department is requesting authority for an amount of $7.1 million to provide first-year funding for CIC to begin planning the implementation of biometrics in the temporary visa stream.

Third, CIC requests authority for an amount of $3.9 million to hire and train additional officers to properly assess complex caseloads stemming from new operational requirements on CIC as a result of the implementation of Bill C-3, dealing with security certificates.

Finally, Mr. Chair, the department requests transferring operating funds of $2.3 million from Foreign Affairs and International Trade Canada to cover the costs of the increase in applications from foreign participants in the international youth program. Through a network of bilateral and multilateral arrangements administered by DFAIT, this program provides young Canadians with an opportunity to gain work experience in other countries, and it enables international youth to gain work experience in Canada.

These are some of the major items.

I understand that the committee may wish clarification or explanation of the many other items in the main and supplementary estimates I have presented. My officials and I would be happy to respond to any questions the committee may have in this regard.

My officials and I would now be happy to respond to any questions the committee may have in this regard.

Thank you.

Criminal Code

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, I think many people will look at the conditions in the bond and sign it but not understand what the conditions will mean in what they are able to do in their lives.

Let us think for a minute. People frequently travel back and forth across the border between Canada and the United States. They will get to the border, the border officials will check their name and they will find they have a peace bond against them. They will likely be refused. They may have family in Europe, the continent, India or wherever. Many people go back and forth to visit family. I have, as others have. They will be refused.

They need to make a living. Will this be reported to their employer? When they go to change jobs and people do proper reference searches, which they should do, of course, what will show up is that the person has been detained and has had to sign a peace bond to be out in the community. For employers, who may have a variety of people to pick from, and certainly in many areas they do, then the person with the peace bond will, most likely, not be selected. It has now affected his or her employment.

What if this is a mom who is in the hospital delivering her baby. She may require some medical assistance, assistance from social services around parenting or a public health nurse. If people look at her file and find that she has a peace bond against her, will that influence the way that people hover and watch the way she raises her child, although potentially she may have done nothing wrong?

My colleague raised a very important question about travel and employment. If people do have a peace bond, I do not think that many of the people who will be doing a reference check or a check for medical or social services will wonder whether the person was really innocent even though she or he has a peace bond. Most people will assume that the person is guilty and that she or he has done something wrong. That negative stigma and that file will stay with the person.

What can people do about it? My understanding is nothing. Actually, they can go to jail for a year by refusing to say anything, but in that case they would not find themselves with the peace bond. However, their only other option is to say nothing and potentially go to jail for a year. They do not have an appeal process. They do not know why they have been picked up and detained. As in Bill C-3, they have very little recourse to protect themselves.

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, forgive my eagerness to speak to the many flaws in the bill.

As I say, this bill supposedly has a provision for the arrest of a person involved in an imminent terrorist threat, thereby disrupting the terrorist activity. We support the idea that we should disrupt an activity like that, but if someone is planning a terrorist act, the Criminal Code already allows for him or her to be arrested and held for up to 72 hours.

The bill also says that persons will have a peace bond for something that they may not even have done. We have never seen this before with peace bonds. Why do we need this? Under the Criminal Code mechanism, if no evidence is found leading to charges against the person, he or she must be released. That is what the Criminal Code says.

However, Bill S-3 goes one step further, and that is the problem. These individuals are released under conditions. There could be a variety of conditions. They may be perfectly reasonable for somebody who is convicted of being involved in terrorism, but not when there is no evidence of doing anything wrong.

It is extremely unjust. As Craig Forcese said, “One would imagine that a peace bond is likely to be ineffectual in relation to a suicide bomber”.

The last point I would make about this, and civil liberty groups have sharply criticized this as well, is that if a person is detained, a file is opened on that person. If a file is opened, it stays with that person and impairs his or her freedom to travel and apply for a job. It is a negative stigma that stays around the individual.

Let us keep in mind that we are talking about people who may have done absolutely nothing wrong. New Democrats will not and cannot support a bill that will punish people who are not guilty of any criminal activity.

As I mentioned earlier, many members of other parties in this House are also opposed to this legislation. I am speaking now specifically for my Liberal colleagues, as many of them took a very principled stand and voted against this legislation when it came to the House earlier in the session. They did the right thing. They stood up, but what will they do now?

I expect that they may do what they have done all along since the member for Saint-Laurent—Cartierville won the leadership of the party. They may sit on their hands. I find it particularly egregious that Liberals would support the bill when I know many members of their caucus share the same concerns I have voiced here today.

Voting for Bill S-3 is not like voting for the budget as a strategy to avoid an election. Standing shoulder to shoulder with the Conservatives and voting for Bill S-3 is giving approval to major changes and it strikes at the heart of Canadian values. I am calling on my Liberal colleagues today to do the right thing and vote with the NDP against the legislation.

I understand that members of the Bloc Québécois are on the same side of the issue as we are expressing, so a Conservative-Liberal alliance will be what it will take to pass Bill S-3. I hope Liberals have the courage to take a stand. As I have already said, ensuring public safety is about protecting quality of life. A good quality of life depends on a balance between freedom and security.

The investigative hearings are flawed. They do not accommodate the guidance of the Supreme Court of Canada. This is vulnerable to misuse. The recognizance with conditions provision is fundamentally opposed to a core value in our justice system: that a person must be guilty of doing or plotting something in order to be punished.

Therefore, both provisions of Bill S-3 are flawed beyond repair, but the NDP's main reason for opposing the legislation is that in point of fact it is unnecessary. The Criminal Code can be used to attain the goals that I have spoken of today.

Many groups have spoken to the standing committee. I think we will be hearing from other speakers later in the day who have talked to Muslim and Arab groups, who know there are particular people who may be more vulnerable to these kinds of conditions under Bill S-3, just as they were under Bill C-3.

It is simply unacceptable to take something that has been a core value of this country for so long, which is that one must be guilty of something for us to punish that individual, and throw that away and say no, we just have to think that someone might think about doing something. It is unacceptable to say that we do not actually know that someone will do something, but we are still going to find that someone guilty and punish him or her by placing conditions upon that person.

It is simply unacceptable. It hits at our core values. As Canadians and as parliamentarians, we should absolutely reject any kinds of changes that go down what is a very slippery slope toward taking away the freedoms of Canadians.

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, I am rising today to speak against Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions). I think I will be making some of the points that have been made by my colleague who spoke just before me.

I am proud that the NDP is once again taking a stand against the Conservative government for going too far. It is not being proud to take a stand against the government, but I will take a stand against a government that I think has gone too far in pursuing its national security agenda. We all believe it is important, but it is being done at the expense of civil liberties.

Ensuring public safety is essentially about protecting Canadians' quality of life. Quality of life can be defined in many ways. If we talk to our family members or next door neighbours, they would define quality of life in a variety of ways, perhaps by where they live, where they work, by their environment, whatever that might be.

In deeper conversation, though, I think two things would come out. There is the importance of finding a balance between security and freedom.

Security means feeling safe, feeling that our country and our communities are safe, feeling that we can safely go out on the street, and feeling that the federal government, our country, is protecting us. As well, Canadians want to see that security balanced with freedoms, because freedoms are something that Canadians hold dear as a principle of being Canadian.

There are the freedoms to which we are entitled, the freedoms which people have fought for and the freedoms which we enjoy on a daily basis and often do not even take the time to perhaps think about or make a list of or talk to people about. Although if we turn on the television most evenings, we would certainly be able to see countries in which many or most of those freedoms are not available to people.

For some reason, the Conservative government is either unwilling or unable to find that balance, as it has proven by introducing Bill S-3 and by the security certificate legislation that we debated in this House in January, which has some similarity to this legislation.

With both of these pieces of legislation, the Conservatives are taking the wrong approach, or an unbalanced approach, to fighting terrorism in Canada. Do we need to fight terrorism in Canada? Of course we do, but there are many tools at our disposal currently in the Criminal Code that could be used as opposed to introducing yet another set or piece of legislation.

Our country already has many appropriate mechanisms in place for charging people, for trying people and for punishing those suspected of participating in terrorist activities. These mechanisms are contained in the Criminal Code of Canada, a very significant piece of legislation which ensures that our country is protected, as I said earlier, from those who seek to do harm to others while ensuring fundamental rights are protected.

The NDP always has opposed and always will oppose any attempt to undermine those fundamental rights and freedoms upon which our judicial system was founded. Our system was founded on responsibility and freedom, which go hand in hand.

That is why we oppose the security certificate legislation. That is why we are opposed to Bill S-3. I do not think we are alone in this at all.

Many Liberals, and even some Conservatives, may privately admit that Bill S-3 is a seriously flawed piece of legislation. Certainly we saw many Liberals saying that over Bill C-3. However, knowing that this bill is fundamentally flawed and fundamentally wrong-headed did not stop the Conservatives from introducing Bill S-3 through the other door in the Senate, so to speak, the back door in the Senate, and it will not stop the Liberals, I expect, from allowing the legislation to pass.

Once again, the NDP--and I believe the Bloc, as I have just heard some of the comments--is left as the voice of reason, fighting to protect Canadian values that some other parties only pay lip service to.

Let us look at one key component of Bill S-3: the establishment of investigative hearings. These hearings would force an individual we suspect--we do not know anything, we just suspect--might have information about terrorist activity that has happened, or may happen, to testify before a judge. It forces individuals against whom we have no charge to testify before a judge.

This marks a major shift in Canadian law, which is based on a right to remain silent.

If the individual refuses to speak, he or she will be arrested and sent to prison for as long as a year, on no charge except that he or she might, we think, based on something somebody else said, know something. I am not sure whether most Canadians would consider that to be a balance between freedom and security.

As I say, the individual might go to prison for as long as a year. To some people this may not seem unreasonable at first glance. Certainly the NDP believes that anyone with knowledge of terrorist activity should be investigated and questioned. We would not deny that at all. However, we already have provisions in place under the Criminal Code of Canada for questioning those involved in criminal activity. Otherwise, we would have nobody brought before a judge and nobody arrested.

We do have the means within the Criminal Code to question people involved in criminal activity. If people think someone is involved in a terrorist activity or that something might happen or they might know that something is criminal activity, I would suggest that we have within our system a way to deal with that.

We do not need a special provision for interrogating witnesses that has a one year prison sentence as a consequence for appearing uncooperative. An individual goes before a judge. He or she may not have any information whatsoever or may wish to remain silent. Let us say that somebody says the individual appears to be or is uncooperative. We then have the right to send him or her to jail for up to a year.

That is outrageous. That is not acceptable. It is indeed acceptable to question under the Criminal Code people suspected of terrorist activity. It is not acceptable for people to be placed in jail for a year with no charge whatsoever because they appear to be uncooperative.

This undermines our current judicial system, which ensures that those who have knowledge of crimes but refuse to divulge that information face criminal charges themselves. That is what our criminal system says. Those who have knowledge of crimes and refuse to divulge it will face criminal charges.

Investigative hearings would grant new powers outside of what is normally allowed under the Criminal Code. It is an extraordinary tool that is subject to dangerous misuse. We can all stand in this House and say that it would never be misused. I do not know how often we have stood in this House or in other places of government or in our communities and said, “That is not how we meant it to be used”. It is there and there is the possibility for misuse.

Denis Barrette of the International Civil Liberties Monitoring Group appeared before the Senate committee examining Bill S-3 and spoke of the possible dangers involved in investigative hearings. He pointed out that investigative hearings allow for the compelled testimony of individuals involved in protest or dissidence entirely unrelated to our everyday understanding of terrorism. It may not be the intention, but it allows for that.

Mr. Barrette is right. Bill S-3 exposes many law-abiding Canadians to frivolous harassment and possibly even incarceration. It is a very slippery slope and one which the NDP will not condone.

This is not the only problem with investigative hearings. When the Supreme Court of Canada studied investigative hearings in 2004, it was clear that testimony gathered during the proceedings must not be used against the witness. I need to repeat this. Testimony gathered during the proceedings must not be used against the witness.

Bill S-3 does not follow the Supreme Court's direction. The legislation currently before us states that information gathered in an investigative hearing cannot be used in a criminal hearing, but the Supreme Court was clear that information gathered through an investigative hearing cannot be used against the individual in any kind of proceeding, criminal, extradition, or otherwise.

It is unclear, given this obvious disregard for what the Supreme Court of Canada has said on this matter, whether Bill S-3 would survive a challenge, as we have said about Bill C-3, but whether or not Bill S-3 is constitutional is not the issue being debated today. I call on my colleagues in this House to join with the NDP and defeat this legislation so that a Supreme Court challenge is never required. That is part one of Bill S-3.

The second part is recognizance with conditions. This is a very controversial part of Bill S-3, recognizance with conditions, or what is called preventive detention.

I am extremely disappointed to see preventive detention included in this legislation because it violates a basic tenet of our justice system, as I said earlier, that a person must be proven to be guilty of doing something or plotting something in order to be detained. That is not the case in Bill S-3.

Recognizance with conditions would allow law enforcement officials to arrest and hold people with no evidence against them. Furthermore, upon release, these individuals would be subject to conditions similar to a peace bond, but unlike a peace bond, the individuals released with conditions may have done nothing wrong. The purpose of this provision, we are told, is to allow law enforcement--

[Rob Moore, Conservative, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I am honoured to rise today to participate in the second reading debate of Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions).

Bill S-3 was first introduced last October. The Special Committee on the Anti-terrorism Act reviewed the bill and made three amendments. The bill was passed by the Senate on March 6, 2008.

In order to ensure that all due consideration be given to this bill, it is important that we fully consider the bill, its background and the importance of this bill to Canada's law enforcement agencies. This is what I will be focusing my remarks on.

First, I will provide an overview of the bill. This bill seeks to reinstate two important powers that were created by the Anti-terrorism Act but which sunsetted on March 1, 2007. These powers are known as the investigative hearing and recognizance with conditions.

Briefly and simply put, the investigative hearing is a tool that provides the opportunity to have a peace officer bring a person before a judge to be questioned in relation to a terrorism offence, past or future. Its purpose is to enable law enforcement to investigate terrorism offences that have either been committed or that will be committed. Thus, one of its main purposes, although not its sole purpose, is to prevent the commission of a terrorism offence. All of us in the House recognize that is an extremely important objective.

The recognizance with conditions is a tool that allows a peace officer to bring a person before a judge who, after being presented with the proper evidence, may order the person to enter into a recognizance with certain conditions to prevent the commission of a terrorist activity.

Let me provide the background information that led to these provisions sunsetting in 2007.

As everyone in the House is well aware, the Anti-terrorism Act, or Bill C-36, received royal assent on December 18, 2001. Before the Anti-terrorism Act became law, Parliament heard from many witnesses on a number of issues. One of these issues had to do with the two powers that are now contained in this bill.

Witnesses voiced concern over the creation of these new powers which were previously unknown in Canadian criminal law and which appeared to constitute a threat to individual rights and liberties protected by the Canadian Charter of Rights and Freedoms. In view of those concerns, Parliament agreed to subject these powers to annual reporting requirements and a sunset clause.

In addition, section 145 of the act required that a committee or committees of Parliament begin a comprehensive review of the provisions and operations of the act within three years from the date that the Anti-terrorism Act received royal assent. Consequently, on December 9, 2004, a motion was adopted by the House of Commons authorizing the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness to begin a review of the Anti-terrorism Act. Its Subcommittee on Public Safety and National Security began its review in February 2005. The Senate adopted a similar motion on December 13, 2004 establishing a special committee to undertake a separate review.

In late 2005, Parliament was dissolved and an election was called. The work of the committees was put on hold. When Parliament resumed in early 2006, the special Senate committee was authorized to continue its review. In the House of Commons, a new Subcommittee on the Review of the Anti-terrorism Act of the House of Commons Standing Committee on Public Safety and National Security began its review of the Anti-terrorism Act.

Both committees sought and received extensions to table their final reports on the review of the Anti-terrorism Act. However, in October 2006, the House of Commons subcommittee released an interim report that addressed exclusively the use of the provisions that we are discussing today. It recommended a five year extension of these provisions, subject to a further review. However, it also recommended that the investigative hearing provision be limited to the investigation of imminent terrorist offences, not past ones. In addition, some technical amendments were also proposed.

Although this report was released in October 2006, the work of the special committee in the Senate was still ongoing. The statutory provision allowing for the renewal of these provisions by passage of a resolution through Parliament did not allow for amendments to be made to the provisions. In effect, time was running out.

In the fall of 2006 and the spring of 2007, the government thus moved toward presenting a resolution to have Parliament extend both provisions for a period of three years. On February 27, 2007 the House of Commons voted 159 to 124 against the resolution that was introduced in the House, and as a result, both provisions expired on March 1, 2007.

It is interesting to note that while this was happening, on February 22, 2007, the special Senate committee released its main report on its review of the Anti-terrorism Act. Two of its recommendations related to these provisions.

First, as was the case for the House of Commons subcommittee, it recommended these provisions be extended for a period of three years, subject to the possibility of a further extension, following resolutions passed by both houses of Parliament. Second, it recommended that the annual reporting requirements also require the Attorney General of Canada to include a clear statement, an explanation, indicating whether or not the provisions remain warranted.

One may wonder why the House voted against the renewal of these provisions when both committees reviewing the Anti-terrorism Act had recommended their extension. There were essentially three reasons given during the House debates.

One, the proposed resolution did not take into consideration the recommendations that had been made by the House of Commons subcommittee, nor the ones made by the Senate special committee.

Two, there were suggestions that these provisions were not necessary, given other powers that existed and the fact that they were rarely used.

Three, the government did not respond in a comprehensive manner to all the recommendations made by both committees that reviewed the Anti-terrorism Act.

As I mentioned, these were the three reasons or excuses why members did not vote in favour of this issue.

The issue of human rights safeguards was also raised. With regard to the first question, as I indicated earlier, in the spring of 2007 there was no time for the government to address the recommendations made by the committees reviewing the Anti-terrorism Act, as the deadline for the renewal of the provisions was too close to allow for a modified version of these powers.

Since that time the government has had time to give full consideration to the particular recommendations in relation to the investigative hearing and recognizance with conditions that were made by the committees, and has had time to implement a large number of them in this legislation.

As for the second argument, allow me, Mr. Speaker, to illustrate why it is important that these provisions be brought back through this piece of legislation.

The current absence of the investigative hearing and recognizance powers has created a serious gap in our law. I wish I could say it were not so, but unfortunately, Canada continues to be exposed to the threat of terrorism and there are no signs that this is about to stop. All of us, being honest with ourselves, know that is indeed the case.

As we all know, since the introduction of the Anti-terrorism Act in 2001, there have been horrific attacks on innocent civilians in Colombia, India, Indonesia, Iraq, Israel, Pakistan, Peru, the Philippines, the Russian Federation, Saudi Arabia, Spain, Tunisia, Turkey and the United Kingdom.

Canada and Canadians have been largely identified by leaders of al-Qaeda as targets for future terrorist attacks. Recently, a criminal trial has begun in the United Kingdom, where several persons have been charged with plotting to blow up planes crossing the Atlantic, including some Air Canada flights.

In its 2006-07 public report, CSIS confirms that terrorism remains a threat to Canada and to Canadians and indicates that the threat of terrorism from extremists posed the most immediate danger to Canada and Canadians in 2006 and 2007.

Given this obvious threat, there is no question that police and prosecutors need the powers to investigate terrorism and to disrupt terrorist activity. Representatives of our law enforcement agencies appeared before the committees reviewing the Anti-terrorism Act and indicated clearly that they needed these tools.

For all these reasons, the government believes that it is necessary to reinstate these provisions.

We must not forget that these tools are unique. There are no other powers in the Criminal Code that do what the investigative hearing and recognizance with conditions do.

Today the efforts of terrorist groups are not abating. Terrorists are displaying increasing sophistication and the ability to use diverse technologies to further their deadly activities.

To combat terrorism, law enforcement must be able to investigate effectively individuals and groups who may pose a threat to the safety and security of Canadians.

For these reasons, I ask all members to give serious consideration to the following notorious facts.

One, terrorism is a very serious and very present threat in Canada. Two, and I think this is something we can all agree on, it is best to prevent terrorist activity and not wait to sift through its aftermath. I am going to repeat that one. It is best to prevent terrorist activity rather than sift through its aftermath. Three, the nature of terrorist activity is such that it must be disrupted at the preparatory stage rather than reacting in its aftermath. Important tools that allow disruption at this stage include the tools we are proposing to reinstate through Bill S-3.

The government is convinced of the necessity to reinstate the provisions that are contained in this bill. Our law enforcement agencies need these tools and we have the responsibility to provide them so that they may be properly equipped to adequately respond to any potential terrorist threat.

Let me also respond to the third argument that has been raised to justify voting down the renewal of these provisions, the fact that the government did not respond in a comprehensive manner to all the recommendations made by both committees that reviewed the Anti-terrorism Act.

First, it was impossible at the time for the government to respond comprehensively to the reports of both committees, since when these provisions expired, the Senate committee had released its main report just a few days before and the House committee had not yet released its final report on its review of the Anti-terrorism Act.

Second, since the expiry of these original powers, the government has been engaged in efforts to respond comprehensively to the reports of both committees that reviewed the Anti-terrorism Act.

Earlier this year Parliament responded to the Supreme Court decision in Charkaoui by enacting Bill C-3, which creates a special advocate regime in the context of security certificates. The government also published last summer its response to the House of Commons subcommittee's final report on its review of the Anti-terrorism Act.

In short, this bill is part and parcel of an ongoing comprehensive approach to review the Anti-terrorism Act, an approach, I might add, that warrants full support by all members.

Canada Marine Act

[Massimo Pacetti, Liberal, Saint-Léonard—Saint-Michel, QC]

Mr. Speaker, it is a pleasure to join the debate today from a Liberal Party perspective on Bill C-23, An Act to amend the Canada Marine Act, the Canada Transportation Act, the Pilotage Act and other Acts in consequence. This bill is mainly comprised of technical changes and amendments.

Normally, when the House receives bills of this technical nature, members of Parliament will often rely on the bureaucrats to highlight deficiencies in the present act or acts. In this case it is my understanding that the transport committee has made changes based on consultation with all stakeholders and this bill has everyone's support.

It is common knowledge that transportation in Canada is essential. And when I talk about transportation, I am talking about all types of transportation, including water, road, air transportation and so on.

Transportation has always been an essential part of building this country from the beginning, when our forefathers came here by boat and continued to use seaways as a primary mode of transportation until the invention of airplanes.

Furthermore, let us not forget that water was one of the few efficient ways of travel in Canada's formative years. And then, how can we forget, the building of Canada's railway from east to west which was the cornerstone of unifying and keeping this country together.

Things have evolved and our way of doing things has changed, but the transportation sector is still essential to this country's economy. The Liberal Party has always been a part of the transportation sector's evolution.

There is no denying that the Liberal Party, whether in government or in opposition, has always been a part of laying the groundwork to ensure that we have a network of infrastructure and transportation to allow this wonderful country to reach its fullest economic potential.

Our Canadian ports are fundamental to the development of trade. They enhance the opportunities for every Canadian to access our abundant natural resources across the country, so that they can be sold to foreign markets that can utilize the product for value added or for direct consumption.

Trade is a key factor in the Canadian economy and without the necessary infrastructure and means of transportation, Canada would be unable to reach its maximum potential to benefit all Canadians.

With that being said, as parliamentarians we cannot afford to miss opportunities to promote our Canadian ports. These kinds of initiatives would compel us to utilize portions of our infrastructure funds, in addition stimulate our rail network and a pan-Canadian road network to encourage growth, and to develop an economy that goes beyond a micro-economy and expand it to a regional and national one.

In 1998, under 13 years of successful Liberal government, the Canada Marine Act received royal assent. The Canada Marine Act was the first comprehensive piece of legislation to govern several aspects of Canada's transport legislation.

The Canada Marine Act was a component in the commercialization of the St. Lawrence Seaway, the framework for a strategic gateway and trade corridors, and included provisions for the further commercialization of federal ferry services.

In 2003, a review of the legislation was compiled to ensure that the government continued to make all the ports in Canada economically competitive, specifically ports in British Columbia, Ontario, Quebec and the Atlantic provinces.

May I remind the Conservative government that the bill before us comes from a Liberal bill, formerly C-61. I am pleased that the Conservatives have the ability to recognize good fundamental pieces of legislation that are beneficial to the Canadian economy and place partisanship aside.

If it were not for the NDP and the Bloc forcing an election, good pieces of legislation such as Bill C-23, Bill C-7, Bill C-3, Bill C-11 and Bill C-8, all based on Liberal transport bills which died on the order paper, could have been passed much sooner.

The Standing Committee on Transport, Infrastructure and Communities heard from port authorities, other stakeholders and read written submissions to the committee on Bill C-23. An overwhelming consensus between stakeholders seems to exist, indicating that the committee should move forward and adopt Bill C-23 which is why we are debating this in the House today.

Some of the benefits of Bill C-23 include access to contribution funding. The fact that access to contribution funding will now be permitted, the Canada Port Authority can apply for contribution funding for infrastructure and security for environmentally sustainable projects.

The bill also addresses governance. With the changes in the governance policy in the Canada Marine Act, the port authorities would now be more in control of their destiny as they would have the ability to promote a more stable, long term management framework.

Bill C-23 would also allow for borrowing limits. With this act, the port authorities would now have the ability to borrow and, thus, would directly allow the Vancouver Port Authority, the Montreal Port Authority and the Halifax Port Authority to move to a commercially based borrowing system.

Bill C-23 would also allow for amalgamation. In the act, the Fraser River port, the North Fraser Port, would be allowed to amalgamate with the Vancouver Port, which would allow for a centralized body and would, in turn, be beneficial to all British Columbian ports in terms of efficiency, whether it be financial resources, human resources or other benefits that would arise from centralization.

The bill also addresses enforcement. Bill C-23 would also give the port authorities the ability to enforce minor violations by having the ability to impose monetary penalties, making it easier to enforce and manage minor violations.

Again, it is my understanding from members of the transport committee, and I cannot stress this enough, that all the stakeholders appearing before the committee spoke positively toward the bill. Members in the House should not confuse the positive aspects which came out of the committee that considered, deliberated and debated Bill C-23.

I urge all members to support the legislation for the good of the Canadian economy.

Immigration and Refugee Protection Act

[Omar Alghabra, Liberal, Mississauga—Erindale, ON]

moved for leave to introduce Bill C-523, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make consequential amendments to other Acts.

Mr. Speaker, I am pleased to have the opportunity to table a bill to amend security certificates after the Conservative government chose to suffocate debate on Bill C-3, which has just passed. Even Conservative Senator Nolin acknowledged that he had to hold his nose and adopt that bill because of the lack of time provided by the government.

Witnesses before legislative committees provided us with compelling evidence on why the law formerly known as Bill C-3 is flawed. This debate is not over. Canadians deserve a more fulsome discussion. This is my contribution to the debate. It is based on recommendations I gathered from legal experts.

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

Committee Amendments to Bill C-21

[Rod Bruinooge, Conservative, Parliamentary Secretary to the Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians]

Mr. Speaker, I rise on a point of order to seek a ruling on whether two amendments to Bill C-21, adopted by the Standing Committee on Aboriginal Affairs and Northern Development, are in order. I submit that these two amendments are actually out of order because they are beyond the scope of Bill C-21 that was set at second reading.

Bill C-21 was referred to committee after second reading, as we all know, and page 654 of Marleau and Montpetit states:

An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.

I would like to emphasize that the bill was adopted at second reading and had a very narrow scope. Namely, it contained just three specific items: first, it repealed section 67 of the Canadian Human Rights Act; second, it provided for a parliamentary review of the repeal of section 67 within five years; and third, it included a transitional provision concerning the implementation of the repeal of section 67.

Page 661 of Marleau and Montpetit states:

Since a committee may appeal the decision of its Chair and reverse that decision, it may happen that a committee will report a bill with amendments that were initially ruled by the Chairman to be out of order. The admissibility of those amendments, and of any other amendments made by a committee, may therefore be challenged on procedural grounds when the House resumes its consideration of the bill at report stage. The admissibility of the amendments is then considered by the Speaker of the House, whether in response to a point of order or on his or her own initiative.

This passage flows from a Speaker's ruling from 1993 when the members of a committee rejected the decision of their chair, who had ruled three proposed amendments to a bill to be out of order. The amendments were then adopted by the committee and included in the report to the House.

Following a point of order raised in the House in respect of this matter, the Speaker upheld the ruling of the chair and ordered that the three amendments be struck from the bill.

Marleau and Montpetit, on page 662, also cites a 1992 ruling by Speaker Fraser. It reads in part:

“When a bill is referred to a standing or legislative committee of the House, that committee is...restricted in its examination in a number of ways...it cannot go beyond the scope of the bill as passed at second reading, and it cannot reach back to the parent act to make further amendments not contemplated in the bill no matter how tempting this may be”.

The first amendment to which I wish to bring to the Speaker's attention is an interpretive clause, which was added as a new clause, clause 1.2, to the bill. This amendment was ruled inadmissible by the chair because it is beyond the scope of Bill C-21.

During the committee's consideration of this amendment, the member for Nunavut stated:

I don't believe we are asking for too much beyond the scope...I want to take it into the House of Commons for further consideration and see how the ruling would be on that in the House of Commons.

Notwithstanding the acknowledged uncertainty of the member for Nunavut with respect to the admissibility of this amendment, the chair's decision was overruled by the committee, which then adopted this amendment.

The second amendment to which I wish to draw to the Speaker's attention is a non-derogation clause, which was also added as a new clause, clause 1.1, to this bill. While the chair did not raise admissibility concerns with the amendment, this new clause clearly adds a new purpose to the bill and is therefore beyond the scope of Bill C-21.

As I have noted, the purpose of this bill is to repeal section 67 of the Canadian Human Rights Act.

Since the bill is silent on how the Canadian Human Rights Act should be interpreted and applied to first nations, I submit that the amendment to add an interpretive clause and the amendment to add a non-derogation clause exceeds the scope of this bill.

Both of these amendments are beyond the scope of the bill by attempting to prescribe how the Canadian Human Rights Act should be interpreted and applied to first nations people on reserve. Since the purpose of the bill is to bring first nations people the basic human rights that every other Canadian enjoys, I question why the opposition would want to water them down.

What is more disturbing is that the opposition was willing to achieve this goal by overriding a fundamental principle of parliamentary legislative practice. It overruled the chair, who rightly ruled an amendment out of order because it went beyond the scope of this bill. These amendments attempt to bring back much of the intent of section 67, which, of course, the bill proposed to repeal.

I believe this view has been supported by the Speaker in his ruling of February 27, 2007 on Bill C-257, which states:

Given the very narrow scope of Bill C-257, any amendment to the bill must stay within the very limited parameters set by the provisions of the Canada Labour Code that are amended by the bill...They argue that these amendments are admissible for they only make clearer the bill's provisions...However, I fear that their views are precisely what Mr. Speaker Fraser meant in the 1992 ruling...when he warned members against being led into the temptation of amendments not contemplated in the original bill.

On Tuesday, January 29, 2008 in a decision on the admissibility of an amendment that was beyond the scope of Bill C-3, the Speaker ruled:

The amendment was ruled inadmissible by the committee chair on the grounds that it was beyond the scope of the bill. It was contended that on the contrary his amendment was within the scope of the bill because it simply expanded the appeal provision already contained in the bill.

Admittedly, the hon. member’s amendment deals with this same principle, namely the right to appeal, but where it goes beyond the scope of the bill is in relation to the conditions under which the appeal may be made...Consequently, even if the principle remains the same, its scope is clearly expanded.

Any attempt to establish how the Canadian Human Rights Act is interpreted and applied to first nations people should be seen as an expansion of the scope of this bill since this clearly introduces new issues which were not part of Bill C-21 as originally introduced.

I would like to conclude by stating that these two amendments, particularly the nature of the interpretive provision, would undermine the universality of human rights principles embodied in the Canadian Human Rights Act and the very purpose of Bill C-21, which was simply to repeal section 67 of the Canadian Human Rights Act. Clearly, these two are beyond the very narrow scope of the original bill.

Mr. Speaker, if you agree that these amendments are out of order, I would suggest that they be removed from the bill, as you did in your previous ruling on February 27, 2007.

[The Acting Speaker, Conservative, Andrew Scheer]

I have the honour to inform the House that a communication has been received as follows:

Rideau Hall

Ottawa

February 14, 2008

Mr. Speaker,

I have the honour to inform you that the Right Honourable Michaëlle Jean, Governor General of Canada, signified royal assent by written declaration to the bills listed in the Schedule to this letter on the 14th day of February, 2008, at 9:42 a.m.

Yours sincerely,

Sheila-Marie Cook

Secretary to the Governor General and Herald Chancellor

The schedule indicates the bills assented to were Bills C-11, An Act to give effect to the Nunavik Inuit Land Claims Agreement and to make a consequential amendment to another Act—Chapter 2; 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—Chapter 3; and S-220, An Act respecting a National Blood Donor Week—Chapter 4.

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

Mr. Chair, there was actually another point from the Muslim Canadian Congress. Ms. Hassan said, “Even for women who believe that it is a religious requirement, they would not practise it as rigidly, and if they were asked to comply with a certain regulation, they would. So it's not an issue.”

Again we have, in a different statement, a comment saying that even if it were.... It is interesting that she says, “Even for women who believe that it is a religious requirement”, because earlier she was saying that requirement is not necessarily there, but she's trying to accommodate that in saying that they would not practise it as rigidly, that they would comply with a certain regulation, and that it's not an issue. It only seems to be an issue with Elections Canada. It does not seem to be an issue with the Muslim community. It does not seem to be an issue for the rest of Canadians. So that's why this matter must be addressed, and addressed as a priority issue.

Chair, it's important that Bill C-6 not languish. It's important that Bill C-6 be given the attention it deserves as a bill that has been passed by MPs in the House. Again, this gets--not “again”, actually; this is the first time I'm mentioning it--to the crux of the matter. What gets to the crux of the matter is that MPs are elected by Canadians, and so it is truly right and correct to say that they are the representatives of the people of their constituency. As MPs representing Canadians, we have brought forward this bill concerning the electoral process and the identification of voters.

It is somewhat disconcerting to realize that if the opposition were really sincere in their intention to move with Bill C-6 in this committee--in which we are outvoted--it could have been done a long time ago, and we in fact could have had this out; we could have had it passed into law, and it would beneficially impact elections.

Instead, what we've had to endure is partisan posturing, partisan motions, partisan politics, in trying to take advantage of a situation in which there truly is no advantage. When we tried to level the playing field and tried to say we were acting both according to the letter of the law, which is important, and in the spirit of the law, and that all parties were acting that way, they rebuffed that. They've taken something that could have been addressed in a very efficacious manner and instead have drawn it out into a long process, a process that I think has been detrimental to addressing these more important issues, such as Bill C-6.

I mentioned it is not just Bill C-6. I do have this concern that we actually have a statutory requirement to review the provisions of Bill C-3 by May 11, 2008, so we're talking about a statutory requirement to move ahead. Instead, we're being stalled as a committee in terms of doing what I call real work. This is real work, a statutory obligation. It is real work. We're being stalled by the opposition, which is moving forward with partisan manoeuvres to take advantage of a situation in which all parties have acted in the same manner and in accordance with the law.

There is other work, of course, in front of the committee. There is this one here, the conflict of interest code for members of the House of Commons. There were forms on November 2, 2007; the commissioner sent the committee draft forms for its approval, if you can imagine. We're talking over three months ago. The commissioner also requested the approval of the committee before posting online the public registry. The committee sent a letter to the commissioner regarding the forms under the code, and the commissioner appeared before the subcommittee.

But this is still an open item of business, Chair. Here we have an officer of Parliament who has asked the committee to do some work. And instead, we've been floundering, with opposition motions and subcommittee reports.

Again, to clarify, really to underline what my good friend and colleague Joe Preston was saying at the last meeting, the steering committee itself is quite biased. I respect your presence there, Mr. Chair. But you know, and committee members know, and I hope Canadians will now know after I make this statement--although they could have read Mr. Preston's testimony--that you do not play an active role in terms of determining the business of the committee. In fact, you can't even vote. So it's a very lopsided, one-sided affair on that committee.

Mr. Chair, I'm just pointing out the fact that future work.... Bill C-6 is future work. I'm pointing out that there is other future work and that the steering committee, where some of this other work comes from, is dominated by the opposition. If they really wanted to get some real work done--the important work of the committee--they could do this, they could accomplish this, at the steering committee. Instead, they're launching these partisan-type attacks and trying to take advantage of the process and procedures of the committee for their partisan advantage. This is not to the advantage of Canadians. This is not to the advantage of Parliament. This is to their own partisan advantage.

We have proposed a change to that subcommittee, Mr. Chair. We feel that we should have a voice, not just a body on the committee who can't participate in determining future business and who cannot vote in terms of future business. We feel that we should have an active participant in the subcommittee process, because the subcommittee plays a key role in determining the future business of the committee.

Immigration and Refugee Protection Act

[The Speaker, Liberal, Peter Milliken]

It being 3:07 p.m. the House will now proceed to the taking of the deferred recorded division on the previous question at the third reading stage of Bill C-3.

Call in the members.

The House resumed from February 5 consideration of the motion that Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, be read the third time and passed, and of the motion that this question be now put.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[The Deputy Speaker, NDP, Bill Blaikie]

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

The House resumed consideration of the motion that Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, be read the third time and passed, and of the motion that this question be now put.

[Mario Silva, Liberal, Davenport, ON]

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

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

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

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

[Denise Savoie, NDP, Victoria, BC]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Alexa McDonough, NDP, Halifax, NS]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The House resumed consideration of the motion that Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, be read the third time and passed, and of the motion that this question be now put.

[Alexa McDonough, NDP, Halifax, NS]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That this question be now put.

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

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

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

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

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

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

[Penny Priddy, NDP, Surrey North, BC]

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

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

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

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

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

[Penny Priddy, NDP, Surrey North, BC]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Réal Ménard, Bloc, Hochelaga, QC]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

[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.

The House resumed 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.

Business of the House

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

Mr. Speaker, since this is the first Thursday question of the year, I want to formally welcome everyone back to the House of Commons. Hopefully, we will be even more productive in 2008 than we were in 2007.

Judging by the first sitting day, I think we will be.

So far, the House has passed Bill C-8, on railway transportation, and Bill C-9, on the settlement of investment disputes.

Moreover, Bill C-31, An Act to amend the Judges Act, and Bill C-27, on identity theft, have been referred to committee.

This is a rather good start.

We hope to keep up that level of productivity by quickly passing our legislation to strengthen the security certificates process, which started debate at report stage today. That is of course Bill C-3. We now have a House order to assist us in facilitating that debate. We will continue to debate the bill until report stage is completed.

While all members of the House do not understand the importance of the bill, I believe that the official opposition does. I hope that we can work together in a spirit of cooperation and bipartisanship to have it passed before the date identified by the Supreme Court of Canada as the date by which it would like to see the law passed, February 23.

Following Bill C-3 tomorrow we will continue with the unfinished business from this week, namely Bill C-33, renewable fuels; Bill C-39, the grain act; Bill C-7, aeronautics; and Bill C-5, nuclear liability.

Next week will be a safe and secure Canada week.

Debates will continue until the bill is passed by this House.

After that, we will debate Bill C-25, which would strengthen the Youth Criminal Justice Act, and Bill C-26, which imposes mandatory minimum penalties for producers and traffickers of drugs, particularly for those who sell drugs to children. We also hope to discuss the Senate's amendments to Bill C-13, on criminal procedure.

Finally, in keeping with next week's theme, I would suggest that my hon. colleague opposite explain to his colleagues in the Senate the importance of quickly passing the Tackling Violent Crime Act, the bill which is overwhelmingly supported by Canadians across the country, and which was the number one priority of the government throughout the fall session of Parliament and which passed this House last fall. It has already been in the Senate longer than its entire time in the House of Commons, yet the Liberal dominated Senate has not even started committee hearings on the Tackling Violent Crime Act.

While the elected accountable members of the House rapidly passed the bill, which I would like to remind everyone was a question of confidence, unfortunately it looks like the unelected, unaccountable Liberal dominated Senate is up to its old tricks again of delaying and obstructing in every way. Let me be clear. This government will not stand and allow Liberal senators to obstruct, delay and ultimately kill the bill. The Tackling Violent Crime Act was quickly passed in the House and Canadians expect the Liberal dominated Senate to act in the same fashion and pass it quickly.

[Ralph Goodale, Liberal, Wascana, SK]

Mr. Speaker, I wonder if the government House leader could indicate his intentions for House business over the next week at least and hopefully two weeks.

I would point out to him that the House business advice that he gave to other parties last Tuesday is now obviously outdated because of events that have taken place in the meantime.

I would be particularly interested to know his plan for disposing of Bill C-3, because there is a court imposed deadline for dealing with that issue.

I would also be interested to know if he is yet in a position to designate any of the opposition days that must be designated during this supply period.

I wonder if I could ask as well whether there would be unanimous consent in the House for a motion that is on the order paper standing in the name of the member for Winnipeg South Centre which states:

That this House endorse the United Nations Declaration on the Rights of Indigenous Peoples as adopted by the United Nations General Assembly on September 13, 2007, and call upon the Parliament and government of Canada to implement fully the standards contained therein.

The House resumed 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.

Use of Standing Order 56.1

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, a few minutes ago we had a vote in this House where Standing Order 56.1 was used and 25 members were required to stand in order to defeat a motion by the government to continue the debate on Bill C-3. In actual fact, if you look at Standing Order 56.1(1)(a), it is quite clear and I quote:

In relation to any routine motion for the presentation of which unanimous consent is required and has been denied, a Minister of the Crown may request during Routine Proceedings that the Speaker propose the said question to the House.

At that time we were not in routine proceedings. We had passed routine proceedings in the second vote. I believe that had the government wanted to go back and have that vote taken again, it would have required a motion to return to routine proceedings, a unanimous consent decision, and then if the government so chose, we would have returned to routine proceedings and it could have moved the motion.

I believe that the vote that we took under Standing Order 56.1 should not have been allowed under Standing Order 56.1 because we were actually not in routine proceedings. I believe that this vote should not be allowed to stand. If the government chooses to return to that point, it can try to do that, but that vote was not valid in this House because we were not in routine proceedings and therefore, Standing Order 56.1 could not be used.

Speaker's Ruling

[The Deputy Speaker, NDP, Bill Blaikie]

There are 12 motions in amendment standing on the notice paper for the report stage of Bill C-3. Motions Nos. 1 to 12 will be grouped for debate and voted upon according to the voting pattern available at the table.

I will now put Motions Nos. 1 through 12 to the House.

The House proceeded to the 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.

Immigration and Refugee Protection Act

[Jay Hill, Conservative, Secretary of State and Chief Government Whip]

Mr. Speaker, pursuant to Standing Order 56.1, I therefore move:

That, notwithstanding any Standing Order or usual practice of the House, on any day that Bill C-3 is under consideration, the House shall sit beyond the ordinary hour of daily adjournment and shall not be adjourned before such proceedings have been completed except pursuant to a motion to adjourn proposed by a minister of the Crown.

Aboriginal Affairs and Northern Development

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

Mr. Speaker, at this time I would also seek the unanimous consent of the House for the following: that, notwithstanding any Standing Order or usual practice of the House, on any day that Bill C-3 is under consideration, the House shall sit beyond the ordinary hour of daily adjournment and shall not be adjourned before such proceedings have been completed except pursuant to a motion to adjourn proposed by a minister of the Crown.

Status of Women

[Ron Cannan, Conservative, Kelowna—Lake Country, BC]

Mr. Speaker, I am pleased to rise in the House this afternoon to lend my voice to this very important issue.

I would like to thank the hon. member for having brought this matter to the attention of the House because trafficking in persons is a vile criminal act. It strips individuals of their freedom and basic humanity, and leads ultimately to a life of exploitation, usually in the sex industry or forced labour. These individuals are coerced into such a life, often through violent assault or threats to their families.

I also rise at this time to remind opposition members that they do not have the monopoly on care and compassion for Canadians. Our government takes this matter very seriously and we have taken a number of measures to deal with this issue.

I would like to take the time to explain the role that our public safety agencies are playing in combating this crime in Canada and abroad, led by the hon. Minister of Public Safety.

The Government of Canada is taking a collaborative approach to dealing with trafficking in persons. The government has made the interdepartmental working group on trafficking in persons the focal point for all federal anti-trafficking efforts. This working group brings together 16 departments and agencies, and serves as the central depository of federal expertise. It works to strengthen federal responses through the development of government policy on human trafficking, information exchange and the facilitation of international and national cooperation.

We are also working collaboratively with the provinces and territories to respond to this issue. For example, we are utilizing various federal, provincial and territorial networks, including FPT ministers responsible for justice, the FPT heads of prosecutions, the coordinating committee of senior officials, and criminal justice and FPT victims issues.

The federal government's strategy for dealing with this heinous crime is consistent with other international approaches. This reflects the unanimous agreement for the need for a multi-disciplinary and multi-sectoral response.

In essence, the government is addressing this issue through a variety of responses aimed at prevention, protection of victims and bringing perpetrators to justice. The government is committed to fighting this crime within its own borders and abroad.

Victims may be exploited within Canada or transported through Canada for final destinations in the United States. This is a challenging issue, but fortunately our public safety agencies are working diligently to crack down on this crime.

Both the Royal Canadian Mounted Police and the Canadian Border Services Agency play a crucial role in combating trafficking in persons. For instance, the RCMP has established the human trafficking national coordination centre to coordinate the federal government's law enforcement efforts to combat human trafficking and provide training.

This includes offering specialized training for law enforcement; producing awareness-raising material for municipal, provincial, federal and international law enforcement officers to help identify a potential victim and traffickers through, for example, a new awareness video; building an extensive network of partnerships with domestic and international agencies; and gathering, sharing relevant domestic and international information and intelligence through a team of analysts across the country to help law enforcement at home and abroad coordinate their approach.

For its part, the CBSA is contributing greatly to the fight against human trafficking by providing enforcement at various ports of entry, but more than that, the CBSA works to screen and intercept inadmissible individuals before they arrive in Canada. It has been proactive by doing research and making sure checks and balances are in place as much as possible before these individuals arrive into the country.

The CBSA monitors regular migration to Canada and publishes regular intelligence analysis which identify trends and patterns in irregular migration and migration-related crimes, including trafficking in persons.

The CBSA also performs a number of functions to help shut out the flow of victims by preventing their transport to Canada as well as to deter trafficking organizations from using Canada as a destination country or a transit country.

CBSA's network of migration integrity officers works overseas with airline security and local authorities in 39 countries around the world to prevent irregular migration, including migrant smuggling, by taking measures to intercept individuals before they arrive in Canada.

CBSA intelligence officers also work with Canadian and U.S. partners and integrated border enforcement teams, known as IBETs, that bring a harmonized, specialized approach to cross-border criminal activity. IBETs are strategically placed at our shared borders to detect and apprehend individuals who commit illegal activities, including migrant smuggling and trafficking in persons.

Integrated border intelligence teams also support IBETs and partner agencies by collecting, analyzing and disseminating tactical, investigative and strategic intelligence information pertaining to cross-border crime between Canada and the United States. This intelligence is shared with participating agencies to target international, national and criminal organizations, once again an example of an integrated, coordinated, unified approach.

To effectively combat trafficking in persons, the government is providing additional resources and encouraging training for law enforcement agencies. One of the most horrible aspects of human trafficking is the fact that young children get caught up in this exploitation.

As we have heard from various speakers today, it is truly the ultimate when children are being victimized. Consequently, in budget 2007 our government allocated an additional $6 million to strengthen current activities to combat child sexual exploitation and trafficking.

Initiatives related specifically to human trafficking include: reinforcing law enforcement capacity to combat trafficking in persons; providing for public education, awareness and outreach to combat trafficking in persons; and working with the Canadian Crime Stoppers Association to launch a national campaign on human trafficking and provide for a central point to report potential cases of trafficking in persons.

The central Okanagan and the area that I represent, Kelowna—Lake Country, have incredible crime stoppers organizations that have been recognized internationally for their efforts. I would like to applaud them as well for their coordinated work in helping to reduce human trafficking and identifying those involved in human trafficking in British Columbia, Canada and around the world.

Coming from British Columbia, I am very concerned. It will be two years next Wednesday that the countdown will start to the Olympics. We are doing all we can to ensure that we can stop the trafficking of humans, not only in 2010 but from today forward.

There are initiatives to conduct research to assess the impact of trafficking and the sexual exploitation of children and the impact on aboriginal and visible minorities communities, as well as help communities and individuals whose social economic status affect their prosperity and allow them to be victimized.

Funding is one thing, but promoting training to ensure our people are well equipped to deal with this crime is all the more crucial. That is why, for example, in November 2007 officials from the RCMP, Justice Canada, the Public Prosecution Service of Canada, Citizenship and Immigration Canada and the CBSA provided four one-day intensive workshops on trafficking in persons to RCMP officers, municipal police, border services and immigration officers, as well as to victim service providers in Alberta. These workshops were built on previous ones organized in Toronto and elsewhere.

I had the privilege of attending a workshop in my own riding that involved a variety of organizations throughout my riding and the province that are very concerned about human trafficking. It was hosted by a member of the RCMP. It was well attended and was an excellent education forum, an example of how we are trying to continue to raise the awareness and education for all Canadians of this heinous crime that is taking place.

The RCMP and CBSA continue to provide training for their officials on this issue, supported by a range of resource materials, including computer-based learning modules, videos, toolkits and reference cards.

I would like to say in conclusion that trafficking in persons is a horrible crime. We are taking a multifaceted approach to fight it and it is providing results. Back in mid-January, for example, Toronto police arrested four individuals allegedly involved in a human trafficking ring. Such arrests give hope to law enforcement agencies that this difficult crime can be thwarted.

From speaking to RCMP members, they find it very discouraging. They go through the exercise, but when they go to court, the accused persons often get off on a technicality. The government and all elected officials need to stand and give the tools to the men and women who are providing the safety in our communities, so they can bring justice where it is required, in this case arresting these individuals involved in human trafficking and making sure justice prevails.

More important, it gives hope to victims that someone is working to end their ordeal. It gives hope to our RCMP officers, hope to those agencies that are working in the communities to support and encourage the elimination of human trafficking. It gives hope to our children, who are our future.

As the hon. member for Kelowna--Lake Country, I thank the member for bringing this issue to the House. My concern is that our government has been working diligently and cooperatively with all these agencies, as I mentioned, and we are trying to bring forward legislation such as Bill C-2, which is being delayed in the Senate right now. We would like to see some cooperation from the opposition parties, specifically the Liberals, to get their members in the other house to pass that legislation. One item that is on the agenda for today that is being delayed because of this concurrence motion is Bill C-3, which deals with security certificates.

Hopefully we can all agree that we need to work more cooperatively and get action from both houses so we can make Canada a stronger, safer, better country.

Bill C-3 -- Immigration and Refugee Protection Act -- Speaker's Ruling

[The Speaker, Liberal, Peter Milliken]

I am now prepared to rule on the point of order raised on December 13, 2007 by the hon. member for Joliette concerning a proposed report-stage amendment to 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 thank the member for Joliette and the Parliamentary Secretary to the Leader of the Government in the House of Commons for their interventions. I am aware of the particulars of this case, since the hon. member for Marc-Aurèle-Fortin was courteous enough to inform me of them in a letter that he wrote to me earlier, in December.

Let us review the events that have brought us to this point today. The hon. member for Marc-Aurèle-Fortin proposed the amendment in question during clause-by-clause consideration of the bill in committee.

The amendment was ruled inadmissible by the committee chair on the grounds that it was beyond the scope of the bill. It was contended that on the contrary his amendment was within the scope of the bill because it simply expanded the appeal provision already contained in the bill.

The hon. member therefore appealed the ruling which was however sustained by a majority of the committee members.

As the hon. members know, at report stage, the decision with respect to the admissibility of motions rests with the Speaker of the House. Therefore, when the hon. member for Marc-Aurèle-Fortin submitted the same amendment to Bill C-3 at report stage, I too had to consider the matter of admissibility. With regret, I had to inform the member that, in my opinion, the amendment was indeed inadmissible on the same grounds, namely that it was beyond the scope of the bill.

I would like to take a moment to explain the reasons that led me to that conclusion. In essence, what we are dealing with is the distinction between the principle of the bill and its scope. The principle refers to the purpose or objective of a bill, while the scope refers to its legislative scheme or the mechanisms that will give effect to the principle, purpose or objective of a bill. In the case of Bill C-3, the principle with which we are concerned is the right to appeal. The scope of this right to appeal is set out in clause 4 of the bill, more specifically in lines 35 to 39 of page 3, where we read the following:

An appeal from the determination may be made to the Federal Court of Appeal only if the judge certifies that a serious question of general importance is involved and states the question.

Admittedly, the hon. member’s amendment deals with this same principle, namely the right to appeal, but where it goes beyond the scope of the bill is in relation to the conditions under which the appeal may be made. More specifically, the amendment would allow the appeal to be based on a question of law, a question of fact, or both. In my opinion, this goes beyond “a serious question of general importance”. I would point out that the hon. member for Marc-Aurèle-Fortin himself has stated that the effect of his amendment is to expand the principle of the right to appeal. Consequently, even if the principle remains the same, its scope is clearly expanded.

Last, I refer the hon. member to page 654 of House of Commons Procedure and Practice which states:

An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.

I appreciate that this is a matter of some importance to the hon. member, but for the reasons just given, I am not able to accede to the hon. member's request.

I believe the hon. member for Scarborough—Rouge River has a submission to make on a question of privilege that was before the House earlier today.

Bill C-3—Immigration and Refugee Protection Act

[Pierre Paquette, Bloc, Joliette, QC]

Mr. Speaker, I have a brief point of order.

On behalf of my colleague from Marc-Aurèle-Fortin, I am appealing to you with regard to a decision made by the chair of the Standing Committee on Public Safety and National Security on December 6. The chair deemed that an amendment introduced by my colleague on behalf of the Bloc Québécois was out of order.

I will explain very quickly. This has to do with Bill C-3 concerning security certificates. The bill already allows an appeal, but only in very restricted circumstances. An appeal can be made only if a judge believes that a serious question of general importance is involved. Only then can the case be re-examined.

Since the bill opened the debate on appeals and in light of the serious consequences of security certificates, we amended this appeal process to broaden it. People can be detained for several years on the basis of these security certificates. We therefore wanted the appeal process to go beyond what the bill allowed and be governed by more or less the same provisions as in the Criminal Code.

When my colleague from Marc-Aurèle-Fortin introduced his amendment, which we felt was in order because it amended an existing part of the bill—namely, the appeal process—the amendment was ruled out of order because it was considered to be outside the scope of the law. Consequently, we were unable to discuss the amendment in committee, and our colleague was not even able to present his arguments.

I would like to bring to your attention the French and English dictionary definitions of “scope of the law”, which in French is rendered as portée de la loi. The English term is found in the eighth edition of Black's Law Dictionary.

It states that “scope of authority” is:

The range of reasonable power that an agent has been delegated or might foreseeably be delegated in carrying out the principal's business.

The French term “portée”, or scope, is defined in the third edition of the Dictionnaire de droit québécois et canadien:

Scope: term used to refer to the area of application or effects of an act, agreement, legal decision, etc.

Consequently, in our opinion, the amendment introduced by the member for Marc-Aurèle-Fortin was completely in order because it pertained to an existing clause of the bill. Certainly, it broadened that clause, but in our opinion, when a bill is being studied clause by clause, nothing prohibits a member from introducing an amendment that broadens or restricts an existing clause of the bill—in this case, the appeal clause.

We are therefore calling on you to rule that this amendment was in order, so that we can introduce it here, in Committee of the Whole, when we discuss Bill C-3 regarding security certificates.

Public Safety and National Security

[Garry Breitkreuz, Conservative, Yorkton—Melville, SK]

Mr. Speaker, I have the honour to present, in both official languages, the first report of the Standing Committee on Public Safety and National Security in relation 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.

This bill incorporates the amendments required to make security certificates a tool that our officials can use to maintain Canada's safety. These changes were made necessary because of the ruling by the Supreme Court. Bill C-3 needs to be dealt with in a timely fashion.

[The Chair, Conservative, Garry Breitkreuz]

It says that Bill C-3 in clause 4 be amended replacing line 21 on page 6.

[The Chair, Conservative, Garry Breitkreuz]

I'd like to bring this meeting to order. It's the Standing Committee on Public Safety and National Security, meeting number 10.

We're continuing with 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 would like to note that we have some people here from the Department of Public Safety and Emergency Preparedness to give us advice. Welcome to Lynda Clairmont, associate assistant deputy minister, emergency management and national security; Edith Dussault, director of the operational policy section, national security policy directorate; and Warren Woods, senior policy analyst, operational policy section, national security policy directorate. From the Canada Border Services Agency we have David Dunbar, the general counsel. From the Department of Justice we have Daniel Therrien, acting assistant deputy attorney general for the citizenship, immigration and public safety portfolio.

Welcome to all of you. We will depend on you for advice from time to time throughout these proceedings, I'm sure.

Today we're going through the clause-by-clause consideration of Bill C-3, and I think without any further ado we'll go into it. We have quite a number of amendments and we've been trying to make sure they're all dealt with in the correct order, so I hope you will speak up when your amendment comes.

Mr. Ménard, before we begin, you had indicated to us here that you wanted to introduce something. You may go ahead and introduce what I believe is your first amendment. It's a bit unusual, and I don't know if anyone's mentioned to you that it's probably inadmissible because of its form.

Business of the House

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

Mr. Speaker, 2007 has been a great year for Canada and a great year for the House of Commons.

Next week is the last week of the fall sitting and the last week before the new year. The sitting and the year have been extremely successful for the federal government, as we have introduced legislation in all of our priority areas and have delivered results for Canadians.

However, since we have only a few sitting days remaining this year to address important tax cuts, security issues and other priority bills still pending, Canadians are expecting us to work very hard in the coming days to produce results for them.

We want to see our priority bills passed in this House and sent to the Senate so that they may become law before Christmas. As a result, next week will be 2007, a year of results week.

We plan to build on our past achievements by debating and passing the budget implementation bill, which would lower taxes for all Canadians by reducing the GST to 5%, as well as by bringing in tax cuts for individuals and corporations.

We will debate Bill S-2, An Act to amend the Canada-United States Tax Convention Act, 1984, which must be passed by Parliament before January 1 to ensure that it is implemented and we can benefit from that.

We will also debate our railway transportation bill, Bill C-8, and our bill on the settlement of international investment disputes, Bill C-9. Both bills will help create jobs and provide economic certainty for Canadians.

Our government will continue to show Canadians that we are serious about tackling crime and strengthening the security of Canadians. Next week, we expect that our security certificates bill, Bill C-3, will be reported back from committee. The bill will then be debated at report stage and third reading. We hope the hon. members of the House understand the importance of passing this legislation so that it may be considered and passed by the Senate before the deadline imposed by the Supreme Court.

We will debate any amendments made to our Bill C-13 on criminal procedure, currently being examined by the Senate.

Speaking of the Senate, the government hopes that the tackling violent crime act will pass the Senate so Canadians can feel safer over the Christmas holidays knowing that the bill has been enacted into law.

Canadians also expect their institutions to be more accountable and democratic. We have built a record of results on this file as well, with the passage of the Federal Accountability Act and Bill C-31 to improve the integrity of the voting process. Next week we will continue with our plans in this area by debating Bill C-29, which closes a loophole in our campaign financing laws that Liberal leadership candidates used to bypass campaign contribution limits last year.

We would also like Bill C-6, on the visual identification of voters, and Bill C-18, on the verification of residence, to be sent back by committee. It is important for these bills to become law, so that they can be implemented in time for the next byelections.

Tomorrow I will also seek consent to send Bill C-30, the specific land claims bill, to committee. This bill to create certainty and allow land claims to be resolved more quickly is a welcome addition and the country will be better off the sooner its process is put in place.

This year, 2007, has been an excellent year for Canada. Our economy is booming, the country is united and there is integrity in government.

We have achieved a lot this year. Our government has delivered real results for Canadians in 2007 and will continue to do so next week and in the new year.

[Roy Cullen, Liberal, Etobicoke North, ON]

Thank you, Mr. Chair.

Thank you to the witnesses, especially to Mr. Harkat and Mr. Charkaoui.

The government has used security certificates sparingly over many years, but the reality is that the times it does use them it affects individuals like you in a very fundamental way, and I appreciate your coming here today.

I know you're opposed to Bill C-3 and security certificates, but one of the items being proposed regarding the special advocates is that if this bill passes in some form, a special advocate will have a chance to challenge the information that is presented by CSIS and RCMP and other sources. I know there's a debate around how complete and effective that could be, etc., but at least that would happen.

I know you're fighting this because you want to clear your names.

Mr. Harkat, in the brief you distributed, it says that “recent information about the human rights situation in Algeria make it clearer...that even his deportation to that country would be to send him to torture”.

I think, Mr. Charkaoui, you're saying the same would be true if you went back to Morocco. I know, Mr. Charkaoui, you're saying that CIC said this based on whatever intelligence or lack they had.

But what would be the motivation for the authorities in Algeria or Morocco to torture you if you went back to your respective countries? Torture normally is to punish someone or to extract more information. What's your sense of why they would cause you harm if you went back to your countries of origin?

[Sameer Zuberi]

Perhaps I could reply very quickly.

Mr. Dosanjh said previously that Care Canada doesn't support Bill C-3 but is proposing amendments. As it is right now, we don't support Bill C-3 and we stand strongly against the security certificate. We think criminal legislation is a standard that should be there, that should be put in place. If you want to keep it under the Immigration and Refugee Protection Act, insert criminal legislation standards into that act so these men can know what they are up against and can defend themselves, as we can, in an open court. That's what our position is.

[Penny Priddy, NDP, Surrey North, BC]

Thank you, Mr. Chair.

Thank you very much, everybody, for being here this morning, and to your families who are in the audience today.

I always do this at the beginning, just to put some context around the questions I ask.

The NDP, as you may know, is not supporting this piece of legislation because we think there are certain violations of democracy that are inherent in Bill C-3. And even with special advocates and all the things that people have talked about, I don't think it in any way does away with what those basic foundation pieces of democracy are.

I would like to ask just a couple of questions, though, if I might.

I'd like to know this, either from Mr. Harkat or Mr. Charkaoui. When you've travelled in other countries, and you obviously have, have you in any way run into a set of circumstances, probably not the same as this but similar to this, in which people accused you of nefarious activities because you were travelling or accused you because you'd been previously in a certain country, and your passport said that?

[Adil Charkaoui]

Thank you for your question. There is no doubt that Canada, like every other country in the world, has to protect itself from terrorism. That is why we have laws like the Anti-Terrorism Act and the Criminal Code. It is equally clear that Canada, like any other country in the world, has the right and even the duty to control immigration. It has the right to refuse foreigners the right to enter Canada. We are not talking about immigration or terrorism, however; we're talking about how the Anti-Terrorism Act is used, an Act that contains no oversight mechanism or counterweight with respect to deporting people and combating terrorism. That is the problem with security certificates, and that is why the Canadian Bar Association, the Barreau du Québec, Amnesty International and all these groups are opposed to Bill C-3. And that is why we intend to challenge it before the Supreme Court of Canada. It's the use…

The Supreme Court ruling was clear: in order for security certificates to be constitutional, they must, at the very least, be associated with a fair trial. What is a fair trial? I believe many of you are well qualified to determine that, and are even lawyers. If we're talking about a fair trial, the first thing is to have access to the evidence against you or be able to test or challenge it. It means being told of the allegations.

Let me answer your first question: how can Bill C-3 be improved? If it were up to me to choose, there would be no Bill C-3. The criminal law, which applies to everyone, already exists. If we want to improve it, we must first resolve the matter of the evidentiary standard. Second, we have to look at the quality of the evidence. It can be obtained under torture. In such cases, that is not evidence. The use of the term “evidence” is also a sham. This is intelligence, not evidence. There is no evidence against me; there are only CSIS reports.

Third, there is the definition of “terrorism”.

[Christian Legeais]

The best way to improve the security certificate process would be to ensure that it is consistent with fundamental justice and international standards of justice. That is the first change that needs to be made. But, Bill C-3 does not do that.

I am having some difficulty answering your question because it really is not up to us to make improvements to a system that persecutes people like Mohamed Harkat, Adil Charkaoui, Mohamed Mahjoub, Mr. Jaballah and Hassan Almrei. That is not our role as a committee. However, I did list a number of areas that we find unsatisfactory or unacceptable in Bill C-3, and you should make amendments in all of those areas.

We could talk about any of the transitional measures set out in the Bill. They legalize indefinite detention. That should be changed. Persons named in a security certificate should be released.

The appeal process that is proposed is a truncated and incoherent one. The judge who upholds the reasonableness of the certificate would be the one determining what avenues of appeal are available. That has to be changed. A real right of appeal has to be provided.

Bill C-3 perpetuates the threat of deportation to torture, disappearance or death. Bill C-3 should state in no uncertain terms that no person can be deported to a place where he or she could disappear, be tortured or be killed. International law makes that clear, but Canada has opted for a made-in-Canada solution which makes that legal.This is not a conceivable or acceptable balance.

The evidentiary standard for security certificates remains the same—that is, reasonableness, which is the lowest standard. The criteria laid out in the Criminal Code should be adopted instead, and the persons named in a security certificate should be entitled to a fair trial.

The fact that the evidence can be secret in no way prohibits the use of information or evidence obtained through torture. The legislation should say that this is unacceptable. There are many other such elements here.

The special advocate is not allowed to speak to anyone without the authorization of the judge. He can be removed by the judge. That has to be changed. Give this individual a lawyer. I don't think Federal Court justices will accept the special advocate concept. They refused it in the case of Mohamed Harkat. Judges believe they have the required competence and jurisdiction and see no need for the addition of another independent, more competent individual. With this system, we have an independent judge and an independent advocate who will decide on information provided by an incompetent agency. Where is the logic in that? Get rid of that.

Those are the main points that stand out from a quick review of Bill C-3.

As I already said, the Supreme Court ruling basically asserts that security certificates are unconstitutional. Indeed, that is the perception of the people of Canada. Now the government comes along and introduces legislation that proposes the exact same system that is currently in place, with a few minor changes.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Thank you.

Thank you all for being here, particularly Mr. Harkat and Mr. Charkaoui, and of course the others as well.

What I'm hearing from all of you, essentially, with the exception of Mr. Zuberi, is that you don't believe we should proceed with Bill C-3. So it may be irrelevant for me to ask you what changes you think we should make to Bill C-3, but I'm going to do that nonetheless, because this is the bill the government has proposed, and because this is the bill we have to make an effort to make better if we can. So all of you can perhaps answer the question of how you would like us to change this bill in one or two or three or four ways.

I know you talked about the special advocate. How is that going to be put together? Who is going to put together the roster? You want to talk about the choice of counsel and whether or not you should have the freedom. I understand that within the roster, the detainee may have the freedom to choose one of the roster. I'm assuming the roster is going to be put together with CBA and others participating, so there will be some independent process.

I would really like to hear from you as to what you think are the two or three or four things you'd like to change that might make this legislation better. Otherwise, we could argue back and forth and try to find out what happened in your situations. That would take a long time, and we don't have that kind of time.

[Adil Charkaoui, Coalition Justice for Adil Charkaoui]

Good morning. I will be speaking French.

I would like to begin by thanking you for giving me this opportunity to address honourable members of the Committee. Before I actually discuss Bill C-3, I would like to introduce myself. If you read the CSIS report, you will see that I am depicted as a monster, a dangerous terrorist, a member of al-Qaeda, someone that needs to be controlled, handcuffed, and placed in a cell, a cage. Those comments are ones you may have heard over past months and years.

I am truly delighted to have this opportunity to give you the other side of the story. Indeed, if you only believe what CSIS is saying, with all the propaganda that is out there against the Muslim community, and particularly immigrants who do not benefit from the full protection of the Charter of Rights and Freedoms, there is the possibility that abuse can occur, as the Supreme Court stated, in its ruling on the Charkaoui, Harkat and Almrei case.

I was born in Morocco in 1973 into a family with two children; I have a sister. In 1995, we decided to immigrate to Canada—my father, my mother, who live here, and my sister. For me, Canada has always been a dream: the dream of living my life in French, because I am Francophone, and living in a multicultural country that respects the Charter of Rights and Freedoms and the Universal Declaration of Human Rights. In Morocco, I studied French literature. So, I am a supporter of the values embodied in the French Revolution.

When I came to this country, I did not expect to be treated this way. I was treated like an animal, a savage, which I am not. We arrived here in 1995 and I began studying French literature at the University of Montreal. I was here, not as a Canadian citizen, because I did not yet have that status, but as a permanent resident.

When Mr. Stockwell Day stands up and asserts, at every possible opportunity, that we are foreigners, terrorists and dangerous people, that is absolutely false. It's propaganda. I am not a terrorist. I have never been charged with anything under the Criminal Code. I have never committed a crime. Mr. Stockwell Day's allegations are therefore false. I am an honest citizen and I have nothing to reproach myself with. If the government claims—and I'm talking about CSIS—that I am a terrorist, well, they have the courts. They can charge me and introduce their evidence.

In 1995, I arrived here with my parents dreaming of a better world, of a country where I could live and build my future. Today I am married, with three children—two girls and a boy—who are all Canadian. My parents are Canadian. I am a permanent resident. I am not a foreigner; I did not land in Canada by parachute; I was selected. I demonstrated that I had no criminal record: Interpol did an investigation. So, when I came to Canada, I did not come as a dangerous enemy, but rather, as a permanent resident.

I completed my university studies and began to work as a teacher. I applied for Canadian citizenship in 1999 and attended a security interview in the offices of Immigration Canada.

What is striking is that I am here today speaking to you as members of the Standing Committee on Public Safety and National Security, and not the Committee on Immigration. What the security certificate tells us is that there have to be two systems: one for immigrants and the other for citizens.

This legislation, Bill C-3, really changes nothing, other than making a few cosmetic changes, such as adding the special advocate, who will not have solicitor-client privilege and will not be able to defend me—really just a clown. As far as I'm concerned, the special advocate is a clown. As I see it, there is no circus and no clown. I don't want a circus; I simply want a fair trial.

When I got to the offices of Immigration Canada, I was asked to go up. I met with CSIS. I was asked questions about my religion, my prayers and the mosque. I am not a fundamentalist, I am not an extremist, but I was asked questions about my values, what I thought of the Palestinian conflict, and what I thought of Saddam Hussein. Those questions have nothing to do with Canadian citizenship.

I told them that I was not a terrorist and that I thought Palestine was occupied. Indeed, that land is actually referred to as the “occupied territories”. I told them that I was against terrorism and violence.

In 1999, I was asked to become a CSIS informant and rat on my own community. I refused. CSIS hasn't left me alone since. That was in 1999. It is now 2007, and I am still subject to retaliation from CSIS.

Unfortunately, Bill C-3 cannot protect me against CSIS's abuse, for several reasons.

I'm going to stop talking about myself now. I only have 10 minutes, so I didn't really introduce the Coalition Justice for Adil Charkaoui, which does excellent work.

I will move on now to Bill C-3.

When I was arrested, I was handcuffed and put in a six by ten foot cell. Fortunately, I was in Quebec—I have said this before and I'll say it again—because the other detainees were treated like animals in Ontario. They told me: “Mr. Charkaoui, we have evidence that you fit the profile of an al-Qaeda sleeper agent”. Those were the first allegations.

I was given a 400-page document. I went through it with a fine-toothed comb in prison; I read it and re-read it. My file contained ten or more biographies of Osama bin Laden, a document on how to build bombs, documents on speeches made by Saddam Hussein and a report on weapons of mass destruction in Irak. There were 14 pages about me. In those 14 pages, it stated that Mr. Charkaoui speaks several languages: English, French and Arabic; he is a university student, is studying for a Master's degree and would like to do a Ph.D.; that he is married—marriage is just a cover, as far as they're concerned; that he has a restaurant with his family to finance terrorist activities. But there is no evidence; just vague allegations. It also said that he had travelled to Pakistan. I didn't travel to Pakistan. I have travelled all over the world, but they talked about only one trip and ignored all the trips made to the United States, Germany, Spain and Egypt. They only talked about one trip. They also talked about people I don't know, with whom I have no contact whatsoever; their names were written. They started to talk about the Khadr family, people I don't know but whose names were inserted in my file for propaganda purposes—just to scare the judge.

Judge Simon Noël detained me for 21 months because I refused to testify. As far as I'm concerned, it's a travesty of justice. There is no justice when evidence is secret, when you're dealing with a certain amount of evidence and reasonable grounds to believe, and when torture is authorized. One of the so-called informants is Abu Zubaydah. Mr. Bush recently admitted publicly that he was detained at a black site—a secret CIA prison. How can his word be accepted? Up until now, the Canadian government has used it against me, even though the court temporarily rejected it. That was the first depiction of me. I had the profile of a sleeper agent.

When I was preparing to leave prison, they changed the allegations. They said that I no longer had the profile of a sleeper agent. Indeed, the Director of Sunni-Islamic Counterterrorism—I don't know his name because it's a secret, since he is a CSIS agent—testified before the court and stated that he had no evidence that Mr. Charkaoui was a member of al-Qaeda. After my release, I took a polygraph test four times to show them that I wasn't a terrorist. They changed the allegations and said I was a member of al-Qaeda. After my release, there was another change in the allegations against me. They said I was no longer a member of al-Qaeda, but that I had become a member of GICM, a Moroccan group.

So, every time I and my lawyers came forward with evidence, to show that the allegations were ridiculous, the government—and I'm still talking about CSIS, because we're not dealing here with the government or the RCMP, but rather, CSIS—simply turned around and changed the allegations.

In terms of the evidence I was given and that was made public subsequently…

[Sameer Zuberi]

My name is Sameer Zuberi. I'm with the Canadian Council on American-Islamic Relations. We are an Ottawa-based advocacy group that works nationally across the country, with representatives from Montreal to Vancouver. We have worked on a number of different issues, from the Arar inquiry to security certificates to, in Quebec, the reasonable accommodation issue. These are the types of cases we work on.

We work on a national level on campaigns that people know about, such as the certificate, and we also work on smaller, unknown campaigns and unknown cases that never actually go to the press.

I want to thank everybody in this committee for listening to us. I'm sure you have to spend a lot of time to do this all the time, and it's not necessarily an easy thing to do.

I also want to thank you for giving us the opportunity because I know that at first you wanted to go quickly through this, so that you could get the legislation enacted, which is a fair and responsible thing to do. I also want to thank you for taking the time to hear from us because, while there are serious concerns that we have as a council, there are also other individuals who have serious concerns.

I want to preface what I'm about to say by first saying that I believe we Canadians and Canada should be strong on terrorism. There is zero tolerance for terrorists, and we must prosecute them and ensure that such acts are not allowed to occur. That has always been our position.

At the same time, we cannot throw out human rights just because we are trying to find terrorists.

What we need to do, and what we are seeking to do, is to find a balance between finding people who actually do crimes and protecting the rights of individuals so that they are not thrown into jail when they have not committed any, or when we cannot prove they have committed something. I want to preface what I'm about to say with that.

We're here to discuss today the special advocate. We have looked at the case of security certificates historically as one that is very important for the Muslim community in Canada. It's one that today the Muslim community, which numbers 2% of this country, is very heavily looking at and is constantly aware of. We're watching it on a daily basis. If you talk about it with people on the streets, they know about it; it's something people are following.

What's happening in this room is important to people in this country. The statistics came out the other day that 20% of Canadians are foreign-born, and these 20% of Canadians look towards issues like the security certificate as a litmus test of whether or not the government listens to the concerns of newly landed people.

In terms of the certificate and Bill C-3, we think that the security certificate should have criminal standards. I'm not going to say that the security certificate should not be under the Immigration and Refugee Protection Act, but what I will say is that if we keep it under the Immigration and Refugee Protection Act, what we should look towards is inserting criminal standards within it so that people know what they're up against. We can keep it in the Immigration and Refugee Protection Act; that's just fine. But let's insert those criminal standards so that people can see the evidence against them. That is only fair.

I was sitting here the other day when Warren Allmand was giving his presentation, and he made a very valid point. He said we don't want to be deporting people who we feel are serious threats to other countries, because that in the end will not be responsible of us as Canadians, but will give our responsibility to the rest of the world. Because we now live in an increasingly global society, what happens here at home affects other parts of the world and vice versa; therefore, if we don't address the issues responsibly here in Canada, they may just come to bite us later on, in the future. We certainly don't want that.

The special advocate system does not resolve the question involving certificates of a two-tiered justice system, wherein we have two standards of justice, one for immigrants and another for citizens. This is certainly not fair; it is not equitable; it is un-Canadian. This is something that, if we in this room were subject to it, we would certainly not appreciate.

The special advocate amendments do not lead to a resolution of the questions on indefinite detention and deportation to torture. For us at the Canadian Council on American-Islamic Relations, these are two very valid points, two that we still need to look at and are of concern to us.

Indefinite detention cannot be allowed. It's something that is not just. And deportation to torture is abhorrent and is something that we, as Canadians, cannot allow. Why? Because people around the world look to us for standards in terms of how to create their own legislation. They look to us to see how they should be implementing their policies, and if we will allow deportation to torture, other countries will follow suit. They will follow our model.

Finally, I'd like to close on whether a point of evidence being brought forth in the security certificate process has been addressed responsibly in Bill C-3. Bill C-3 still allows for secret evidence to be brought forth. Yes, you now have another individual who comes and looks at the information. However, whether this individual can actually vet this information thoroughly is a major question. There is no back and forth process between the special advocate and the named individual. That is a concern. How can the special advocate actually see that the information is correct, sound, and accurate if he or she cannot dialogue with the named person?

What we saw in the Arar commission, with the most recently released documentation, was that national security claims were used to hold back embarrassing information that would basically have shown that national security agencies made a mistake. Who is to say that the special advocate process will not lead to the same sort of occurrence: it will be said that something cannot be released due to national security concerns only because it would embarrass CSIS or the RCMP if it were divulged to the public?

We saw recently the taser incident, which, while unrelated to security certificates, really showed that when evidence is brought forth openly and people get a chance to evaluate what's there, we can actually come to the truth. If this passenger had not taken his video camera and start recording, would we have known today that this person, the Polish man, actually did not fight back against officers? Maybe not. Maybe we would have accepted the story that was given to us. But now, because of the actual evidence having been brought forth and because of people seeing it, we were able to come to the truth. In the end, that makes us a better country and that makes us more responsible and better able to deal with the issues.

In terms of balancing human rights and the need to prosecute real, serious criminals, we must look at that seriously. But if we are really to eliminate terrorism in this country and around the world, we need to do so in a just and equitable way. Otherwise, we will not address the issues and we'll not be able to get to the heart of the problem.

I'll close on that. This is a very important concern for Canadian Muslims and for immigrants in general in this country.

[Christian Legeais]

As regards Bill C-3, our Committee sees it as an attempt on the part of the government to leave the impression that these changes to the security certificate process will make it fairer and consistent with modern standards of law enforcement and fundamental justice.

In the guise of protecting rights, it in fact does the opposite. It sustains the hysteria surrounding terrorism to provide for an exceptional power in the law and remove all opportunity for common rational discussion of the terrorism or security issue.

What is the specific nature of the problem? And how should it be addressed? We believe there needs to be a fulsome discussion on the reasons for abolishing the security certificate mechanism and the secret trials. Yet Bill C-3 retains the security certificate mechanism and, in some cases, makes the situation worse. It maintains the secret trials, secret evidence and the impunity of government-sponsored enforcement agencies, notably the political police force or CSIS. All of the condemnation and criticisms made by the Justice for Mohamed Harkat Committee with respect to the security certificate process in front of the Sub-Committee on Public Safety and National Security on September 21, 2005, and subsequently in front of the Standing Committee on Citizenship and Immigration on November 9, 2006, are still relevant, and I invite Committee members to read the record of those proceedings. We said at the time that the security certificate mechanism and secret trials are medieval instruments, constitute a violation of fundamental rights and have no place in a modern society.

Bill C-3 is presented as the government's response to the Supreme Court ruling in the Charkaoui, Harkat and Almrei case and as being warranted by exceptional circumstances, namely the need to combat terrorism. Not only does Bill C-3 not satisfy the Supreme Court's ruling in terms of the need to ensure consistency with several sections of the Canadian Charter of Rights and Freedoms, it betrays the very essence of that ruling: that these rights violations are not acceptable, are rejected by the people of Canada and are unconstitutional.

With Bill C-3, what we have been told is exceptional and isolated is now to become the standard. In addition to that, the impunity of the State and its enforcement agencies is also maintained, a course of action which is certainly not bound to ensure society's collective safety and security. We also note that Bill C-3 proposes the use of a special advocate, a mini version of the British model which was also designed to grant minimal rights and access to justice while getting around the principles of fundamental justice. This special advocate can speak to no one without the authorization of the judge. He is not authorized to speak to the person named on the security certificate and may be dismissed by the judge, thereby hampering his independence.

Furthermore, the use of secret evidence, if such evidence exists—because, so far, we have seen only allegations—is maintained. There is no prohibition on the use of evidence or information obtained under torture. The evidentiary standard with respect to security certificates remains the same: reasonableness, which is the lowest evidentiary standard in the Canadian system. Bill C-3 maintains the opportunity to make a decision based on information or intelligence, as opposed to evidence. Information or evidence that would normally be inadmissible in front of a normal court is admissible in this process. It perpetuates the threat of deportation to torture, disappearance or death.

The appeal process that is proposed is a truncated and incoherent process. A judge that sustains the security certificate will have the authority to indicate what avenues of appeal are open to the named person. The transitional measures introduced in this Bill legalize indefinite detention. It is clear that the new version of the security certificate process and accompanying secret trials simply preserves, completely intact, the system now in place. No right is strengthened in this Bill—quite the opposite. This attempt to reform the security certificate mechanism makes it clear that reform simply is not possible and that this medieval instrument must be abolished once and for all.

Thank you.

[Mohamed Harkat, Justice for Mohamed Harkat Committee]

Good morning. My name is Mohamed Harkat.

On December 10--Human Rights Day--five years ago, our nightmare started. After 43 months of detention without charge or access to the evidence, one year in solitary confinement, time spent in Guantanamo North, and one and a half years under house arrest under the toughest bail conditions in Canadian history, I am here to demand justice.

For the past 18 months, my wife and I have been imprisoned in our own house. We have surveillance cameras in the house. I wear a GPS tracking device. My wife or mother-in-law have to supervise me 24 hours, seven days a week. I've never been left alone in my house or in the backyard. All visitors and family members coming to our house have to be screened by CBSA. Our computer room is under lock, and I have a curfew. We have only three four-hour outings, and all outings are booked and pre-approved by CBSA at least 48 hours in advance. All mail and phone is intercepted. I am followed by two CBSA officers. And the list goes on.

My life has been nothing short of the worst nightmare, and yet I have never been charged with a crime. I don't know the evidence against me.

This grave injustice continues for my family and me. This is not the Canada I dreamed of. Today I am here to urge the Canadian government to give me a fair and open trial so that I can defend myself openly. I strongly believe security certificates won't take me anywhere. My hope for a fair trial died when Bill C-3 was created. This is legislation that will continue to violate my rights as well as the charter.

What little glimpse I did have of a hope for justice is now gone. This is the worst kind of injustice. All of the allegations against me have ruined our lives.

I'm outraged that my case is based on and tried on secret evidence. I am here today because I want all Canadians to know the truth. I want the truth to come out. I want justice. I deserve a chance to clear my name, and that's what other Canadians are standing for.

How long will I be submitted to this terrible treatment--inhuman bail conditions and mental torture--by the Canadian government?

I would like to ask each one of you to reflect on this new legislation and ask yourselves if you would like to be in my shoes. Would you accept this process? Would you put your lives in the hands of special advocates who can't communicate openly with you?

Why is there this two-tiered system? Why am I being punished even though I have never been charged with anything? I have never committed a crime.

Is the special advocate process good enough? It still means years of detention and does not give me equality in the eyes of the law when actual criminals don't need special advocates. Would you trust this system enough to put your lives in the hands of an appointed lawyer without choosing him or her?

I therefore urge the Canadian government to allow me a fair trial. My community, other organizations, and my family and I will continue to fight until justice prevails. As a human being in this country, I expect justice, and today I am demanding justice.

I would like to thank the committee for giving me this chance to speak.

[Christian Legeais, Spokesperson, Justice for Mohamed Harkat Committee]

Good morning. My name is Christian Legeais and I am a spokesperson for the Justice for Mohamed Harkat Committee.

My comments on Bill C-3 will follow Mr. Harkat's statement explaining the consequences of the security certificate process for himself and his family, as well as what we expected following the Supreme Court ruling in February.

Mr. Harkat.

[The Chair, Conservative, Garry Breitkreuz]

I'd like to call this meeting to order.

This is meeting number nine of the Standing Committee on Public Safety and National Security. We are continuing our examination 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.

We welcome our witnesses this morning. I presume that those who aren't here will show up in the next little while, but I think we'll go ahead and begin.

We have with us the Justice for Mohamed Harkat Committee. I'll ask you, gentlemen, to introduce yourselves. Then we have the Canadian Council on American-Islamic Relations and Coalition Justice for Adil Charkaoui.

The usual practice at the committee, gentlemen, is that we allow you an introductory statement of approximately 10 minutes, and then we'll have questions and comments from the people who are on the committee.

We'll ask the people for the Justice for Mohamed Harkat Committee to introduce themselves.

Gentlemen, you may begin.

[Alex Neve]

I think it is important that Bill C-3 is focusing on one particular aspect of how security plays out in the immigration system. There are various other ways, proceedings, and procedures wherein this plays out and wherein a lot of these same concerns about secrecy and adequate representation arise.

Then there are the wider concerns I've flagged, which are not addressed in either Bill C-3 or anywhere else in Canadian law, around those sorts of proceedings, either possibly leading to the deportation of individuals to situations where there's a serious risk of torture or to instances of an individual against whom there are quite serious allegations of criminality, be it terrorist criminality or involvement in war crimes or crimes against humanity, being deported and thus escaping justice.

Both of those should be of concern to us in our immigration system. We should not be contributing to injustice by sending people off to face human rights violations. We should not be contributing to a lack of justice by sending people off to face nothing.

[Julia Hall, Senior Counsel, Terrorism and Counter-Terrorism Program, Human Rights Watch]

Thank you, Mr. Chairman, and thanks as well to the entire committee for giving Human Rights Watch this opportunity to appear today.

I understand the committee is in the process of considering hearing additional witnesses, and of course we welcome that as well.

I'd like to just say, as a point of beginning, that Human Rights Watch endorses Amnesty International's basic concerns with Bill C-3, but I'd like to take you back a couple of years to Human Rights Watch's first foray into advocacy around security certificates. In an April 2005 report we recommended:

Repeal as a matter of urgency Division 9 (sections 76-87) of the Immigration and Refugee Protection Act (IRPA), providing for the use of security certificates authorizing the government to detain and deport, based on secret evidence presented in ex parte hearings and without procedural guarantees, persons determined to be an imminent danger to Canada’s security, including potentially effecting such transfers to countries where a person would be at risk of torture or ill-treatment.

We also noted at the time that although the IRPA did not expressly provide for indefinite detention without charge or trial of persons subject to a security certificate, the practical effect of the detention regime accompanying certification could result in just that: indefinite detention. If a judge determined that a person would pose a threat to Canada's national security and deportation could not be effected, then indefinite detention was, at that time, a possibility, given the loopholes in the law. Human Rights Watch called for closure of that loophole since indefinite detention without charge or trial is by its very nature arbitrary and in violation of international human rights law.

Many of these concerns were articulated in our amicus brief in the Charkaoui case, the decision from which struck down certain provisions of the IRPA as unconstitutional.

We appear before you today to comment on Bill C-3, the stated purpose of which was to remedy the deficiencies of the IRPA identified by the Supreme Court in Charkaoui. We deeply regret, however, that Bill C-3 does no such thing. In fact, the very same criticisms levelled against the IRPA prior to Charkaoui back in 2005 stand with respect to Bill C-3. The substantive and procedural deficiencies we identified in 2005 cannot be set right simply by adding to the mix a security-cleared third party in the form of a special advocate. Regrettably, under Bill C-3 a person subject to a security certificate still will not have access to the secret evidence upon which he has been labelled a national security threat or to secret evidence used to assess his risk of torture upon return. A person assigned a special advocate will not enjoy the benefits of an attorney-client relationship, making any communications between him and his assigned advocate vulnerable to disclosure. The government is still not expressly directed to disclose all evidence, including exculpatory evidence, in this case to the special advocate, making the claimed utility of such an advocate even more limited.

In the interest of full disclosure, I served as an expert witness before the Special Immigration Appeals Commission in the United Kingdom in the case of Abu Qatada. I was there serving as an expert on returns to the risk of torture and the use of diplomatic assurances, or, what they call in the United Kingdom, memoranda of understanding. I personally witnessed more than once special advocates in that case complaining to the judge in open session that the government had not fully cooperated with disclosure requests that had been lodged months prior, at which point the Chief Justice, Judge Ouseley, would call the session into close to discuss the matter further. It was of great interest to those of us in the audience or serving as experts that the special advocates felt the need in open session to challenge the government's lack of cooperation with respect to disclosure.

Finally, under Bill C-3, indefinite detention without charge or trial remains a real possibility since a judge could in fact rule that a person is a national security threat but recognize correctly at the same time that he could not be deported due to risk of torture on return. You will see in our written comments as well that Human Rights Watch does not believe that diplomatic assurances against torture, that is promises from a receiving government that a person would not be tortured on return, are reliable and thus do not mitigate the risk of torture upon return. A certain sense of déjà vu thus surrounds our reading of Bill C-3.

The deficiencies in the bill also fail to meet criticism from other international quarters, and it should be of note that we do sit here to represent to some extent an international perspective on the bill.

In April 2006, the UN Human Rights Committee expressed concern that some persons subject to security certificates in Canada had been detained for several years without criminal charges, without being adequately informed of the reasons for their detention, with limited judicial review, and called on the Government of Canada to legally determine a maximum length of such detention.

Therein lie, in that one paragraph of concern from the UN Human Rights Committee, all of the concerns we have with Bill C-3. This language is eerily similar to the committee's recommendations to the United States government with respect to detentions at Guantanamo Bay.

In December 2006, the Human Rights Committee called on the U.S. to give detainees access to counsel of their choice and expressed concern that detainees did not have adequate due process due to restrictions on their rights to have access “to all proceedings and evidence”.

The use of secret evidence and the establishment of special advocates has been commented upon by many, as the committee well knows from the documents that have been submitted into evidence, including those from Human Rights Watch. But I'd like to share some words with you from a lecture given by Justice Arthur Chaskalson, president of the International Commission of Jurists and chair of IJC's Eminent Jurists Panel. The lecture was given at Cambridge University in May 2007, and the title was, “The Widening Gyre: Counter-Terrorism, Human Rights and the Rule of Law”.

First, Justice Chaskalson applauds Canada and the Canadian Supreme Court for having struck down those provisions of the IRPA that did not comply with the charter or with international human rights obligations. But he goes on to say:

But the appointment of special counsel for this purpose [of testing secret evidence] is not an all embracing panacea. Persons against whom accusations have been made are told that evidence material to the decision to take action against them may not be disclosed to them. Instead, the government that has taken the action will appoint lawyers with security clearances to represent their interests. The lawyers may see the evidence but may not tell them what it is. They must just do the best that they can in the circumstances without being able to get detailed instructions from the affected persons on the information that has been withheld. I am not sure how an English family with a child detained in some foreign country would feel about such a system; or indeed an English family with a child detained in England.

I must confess to having considerable reservations about the fairness of this process.

In closing, I'd like to say that the special advocate system proposed in Bill C-3 simply does not answer the requirement for transparency that is enshrined in international human rights law with respect to fair trial guarantees. Therefore, it does not, as constituted in Bill C-3, provide a person subject to a security certificate with the proper ability to mount a defence.

It is the position of Human Rights Watch, then, that Bill C-3 and a system for special advocates should categorically be rejected.

Thank you.

[Alex Neve, Secretary General, Amnesty International Canada]

Thank you, Mr. Chair.

My name is Alex Neve, and I'm the secretary general of Amnesty International Canada. It's a pleasure to be here today. We do certainly appreciate the fact that the committee has opened up this extra opportunity for hearings, making it possible for us to appear.

Amnesty International first spoke out about concerns regarding Canada's immigration security certificate procedure back in 1997, in the case of Manickavasagam Suresh. At the time, we highlighted two separate but certainly interrelated and very serious human rights concerns, and 10 years later both of these issues of fair process and protection from torture remain very substantial and glaring problems.

Amnesty International approaches its review of Bill C-3 from three perspectives. First, does it lead to a process that meets international standards, such that individuals who are subjected to certificates will in fact be dealt with fairly? Second, is it a process that more widely stands to strengthen the protection of human rights in Canadian security laws and procedures? And third, recognizing the importance of the example Canada sets for the rest of the world, is this an approach that demonstrates leadership in the crucial global effort to ensure that human rights are not sacrificed to security?

That latter consideration, we urge, should be of real concern in your deliberations. The past six years, in the aftermath of September 11, have witnessed a global challenge to human rights standards. Crucial safeguards against torture, arbitrary detention, fair trials, and other vital human rights principles have been undermined. We very much need to look to Canada to stand firm for these critical human rights principles and make it clear that true, lasting security will be achieved only through scrupulous regard for these hard-won, universally binding standards.

Amnesty International developed principles that we believe should guide reform of the immigration security certificate process, which derive from Canada's international human rights obligations. It had been our intention to promote these principles in consultations we had expected would be conducted in advance of preparing this bill. Those consultations, unfortunately, never took place.

After outlining those principles, I will then highlight a number of the most problematic human rights shortcomings in Bill C-3's proposed special advocate model, and I will end with Amnesty International's key recommendation, that the special advocate model should be abandoned, and instead, measures should be put in place to make it possible for the individual's own lawyer to provide effective representation.

The overarching principles--there are nine of them--are as follows. I hope you will be able to have these later in writing. On short notice our brief wasn't able to be prepared in both languages, but it is available and is with the clerk, and he tells me it should be distributed to you in short order. In writing, they are elaborated more fully, but I want to signal the key concepts.

First, in no circumstances should any procedure lead to the removal or transfer of any individual from Canada to a country where there's a serious risk he or she would be tortured or subjected to cruel, inhuman, or degrading treatment.

Second, in no circumstances should any procedure lead to the removal of an individual if he or she would consequently escape facing justice for crimes.

Third, criminal proceedings should be launched in Canada when removal or transfer is not possible.

Fourth, immigration removals should not be disguised extraditions.

Fifth, immigration-based security procedures should provide the same rigorous standards of procedural fairness as are offered under Canadian criminal law.

Sixth, the right to full answer and defence must be scrupulously protected in any immigration-based security procedures.

Seventh, in no circumstances should evidence be withheld for the sole reason that to disclose it would be injurious to international relations. The Arar inquiry provides troubling examples of the extent to which concern about injuring international relations is used in a wholly inappropriate manner to justify withholding important evidence.

Eighth, in immigration-based security procedures, detention must be the last resort. Immigration detention should not be prolonged and can never be indefinite.

Finally, ninth, immigration detention is not and should not be treated the same as criminal detention.

The approach that is proposed under Bill C-3, unfortunately, does not meet these principles. In large part, of course, that is because the bill fails to incorporate provisions that deal with many of the very troubling shortcomings that are inherent in the security certificate system, such as deportations to torture, concerns about impunity, and issues related to detention.

The special advocates proposal itself, evidently intended to improve fairness, improves the system only marginally and in the end does little to ensure that fair trial rights are adequately protected.

The proposed amendments creating special advocates mirror closely the model that exists in the United Kingdom. As noted in the Supreme Court decision of Charkaoui, the British model has received significant criticism from U.K. parliamentary committees, U.K. courts, detainees and their advocates, and from special advocates themselves, some of whom have stepped down from their positions rather than continue to give what some have called a veneer of legality to a fundamentally flawed system.

I would like to quickly review some of the more glaring problems with the proposed system. The concerns are elaborated in greater detail in the written notes you will later receive.

First is the concern that special advocates do not have explicit right of access to all relevant information in the government's possession. This is further aggravated by the minister's power to withdraw information from the proceedings. The lack of a clearly expressed obligation on the government to disclose all relevant information has been a grave concern in the U.K., where special advocates have indicated that they have become aware of cases where important exculpatory information was not disclosed to them. If there is potentially exculpatory evidence, the minister must be obliged to disclose it and must not be allowed to withdraw it from the process.

Second, while Bill C-3 permits the appointment of a special advocate on a judicial review or on an appeal from a designated judge's decision, the proposed legislation provides no mechanism for the special advocate, him or herself, to commence a judicial review or an appeal where an issue arises in the context of in camera proceedings.

Third, Bill C-3 does not set out the criteria for the appointment of special advocates. Bill C-3 does not set out minimum qualifications for special advocates or suggest where they will be drawn from, leaving these to the discretion of the minister. The bill makes no provision for training, administrative support, or access to experts for the special advocates.

The U.K. House of Commons Constitutional Affairs Committee has severely criticized the lack of resources for special advocates in the U.K. once they have been appointed. For example, the lack of Arabic-speaking staff has resulted in situations where material that was withheld from the individual concerned was, after the fact, found to be public and available on the Internet and could have been disclosed to the individual to help mount a defence.

Fourth, the relationship between the named individual and the special advocate is fundamentally and inherently flawed. First, the individual plays only a very minimal role in appointing the special advocate, and second, the absence of a solicitor-client relationship undermines the trust necessary between the special advocate and the named individual.

With respect to appointment, it is the judge rather than the named individual who selects the special advocate, chosen from a list of persons established by the Minister of Justice. The judge may also terminate the special advocate. The named individual has only a restricted role in the selection process.

The appointment of the special advocate by a judge with little input from the individual may give the impression that the special advocate is not the advocate of the named individual, and the named individual may perceive the special advocate to actually be acting as an agent of the state.

The role of the special advocate is further undercut by the absence of solicitor-client privilege between the named individual and the special advocate. The proposed legislation is silent on the special advocate's duty of confidentiality and legal professional privilege. This ambiguity will put a chill on communications between the named individual and the special advocate.

The fifth and final concern Amnesty International has with respect to Bill C-3 relates to the restrictions placed on the special advocate's ability to communicate with the named individual or anyone else following the disclosure of secret information to the special advocate. Of course, it is possible for the special advocate to seek the judge's authorization to be allowed to communicate with outsiders, including the named individual. This provision is similar to that found in the U.K. special advocate model, where authorization from the judge allowing further communications has rarely been given, and is rarely sought because the questions the special advocate seeks to ask must be vetted first by the government.

This prohibition on communication with the named individual after disclosure of the secret evidence has been the subject of strong criticism in the U.K., not only from human rights bodies and the special advocates themselves, but by parliamentarians as well. The same criticisms apply to Bill C-3.

It is uncertain whether the special advocate can call witnesses to testify on behalf of the named individual. The limitation on the special advocate's ability to present other evidence on behalf of the named person, such as documentary evidence, is less ambiguous. This may be done only with the judge's authorization.

What is the solution? Obviously, there are amendments that could go some distance in meeting the concerns I have identified. It is disappointing that the bill does not include those sorts of enhancements, all of which are clearly apparent from the U.K. experience and on the public record. The question that arises is whether the special advocate model can be improved to such an extent that these serious flaws can be remedied. In Amnesty International's view, it cannot.

The improvements that are required, securing the real and perceived independence of special advocates, building a relationship of trust, ensuring confidentiality and privilege, and allowing an ongoing relationship throughout the course of the proceedings, would all, if enacted, essentially replicate the role the individual's own lawyer would and should play. Therefore, recognizing the fundamental importance of the solicitor-client relationship in any fair trial, as well as important rights associated with the choice of one's own counsel, all of which is of even greater importance in proceedings involving secrecy, Amnesty International urges that Bill C-3 be amended to focus instead on making it possible for the individual's own lawyer to effectively represent the person concerned.

This is not an outlandish suggestion. The Canadian justice system has already recognized that the need to mount an effective defence in cases involving sensitive evidence, such as that of a national security nature, requires creative solutions to the issue of disclosure. One such solution that has been used involves security clearing defence counsel and giving them access to the evidence, coupled with a limited undertaking not to disclose aspects of that evidence to their client.

The most obvious precedence for such a model involving national security material can be found in criminal cases such as the recent Air India trial. In the Air India trial, the crown gave defence counsel limited interim disclosure to the relevant CSIS files, with an undertaking of confidentiality not to disclose the evidence to others, including their clients. Recognizing that it would have been too time consuming to then seek a judicial ruling for each document, the parties established their own system of negotiating which documents could in turn be disclosed to the accused.

The use of undertakings in Air India stemmed from earlier precedents dealing with informant privilege, third-party wiretaps, police intelligence records, and privileged documents. Ironically, given the very serious concerns about the nature of the justice system being pursued there, models used by the United States to deal with detainees in Guantanamo Bay present a partial example to consider.

Detainees brought before the flawed military commission process are appointed a military defence counsel to represent them, in addition to a civilian lawyer, both of whom have lawyer-client privilege. The military lawyer is able to see classified evidence but can be forbidden from sharing that information with the detainee and their civilian counsel.

The United States has used criminal law to try individuals for suspected terrorist activity. Ahmed Ressam was convicted of conspiring to blow up Los Angeles International Airport, and his trial was a criminal trial held publicly. On sentencing, Judge John C. Coughenour noted:

We did not need to use a secret military tribunal, or detain the defendant indefinitely as an enemy combatant, or deny him the right to counsel, or invoke any proceedings beyond those guaranteed by or contrary to the United States Constitution.

In sum, the special advocate model should be withdrawn. Instead, Bill C-3 should propose a process for security clearing counsel for the individual named in an immigration security certificate, coupled with limited and necessary undertakings that counsel will not disclose some of the evidence he or she is given access to. As well, it is unfortunate that Bill C-3 does not attempt to deal with the related and very serious human rights concerns that arise in immigration security cases, including prohibiting returns to torture, ensuring individuals do not escape justice, removing injury to international relations as a ground for withholding evidence, and improving the provisions governing detention in immigration security cases.

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

I'd like to bring this meeting to order. This is the Standing Committee on Public Safety and National Security, meeting number 8, and we are continuing our study 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.

We really appreciate our witnesses coming on such very short notice. Some of you have made a great effort to be here. We appreciate it very much and we thank you.

I am not sure if you have discussed who would like to go first. You will go in the same order.

I'll ask you to introduce yourselves. We'll begin with Amnesty International Canada. Then we'll move to the Canadian Arab Federation, and the third presenter will be the Human Rights Watch representative, Ms. Julia Hall.

You each may have 10 minutes approximately. We're not going to bring the gavel down too quickly on you, but make your opening remarks, and then the usual practice at this committee is to go around and give every member an opportunity to make comments and ask questions.

Welcome once again. Please introduce yourselves, and you may begin.

[Janet Dench]

You mentioned the Canada Evidence Act. From our perspective, we feel that it may give some useful clues, because the Canada Evidence Act recognizes that there may be sensitive information in certain circumstances, but it has a much more flexible mechanism for dealing with how you balance the need to keep that information secure versus the interests of the person affected. In looking at Bill C-3, one of the questions we have is why there seems to be this all-or-nothing provision. Either the government has concerns about the disclosure of the information—in which case it's absolutely non-disclosed—or it's out there fully in the courts, had you considered looking at a more nuanced and flexible approach that allowed for a better balance between the rights of the person and the specific needs of disclosure or non-disclosure in an individual case.

[Philippe De Massy]

May I just go back to the intention that we had in coming before this committee?

The question was, is Bill C-3 an answer to the objections that the Supreme Court saw to the process? We say no. This is why we are here.

[Sharryn Aiken]

If I may just point something out, the government has suggested that it's sufficient in Bill C-3 that the judge has broad discretion to make numerous orders. It's the CCR's view, and I think the view of my colleagues, that it's not sufficient to respond to these concerns by pointing to the discretion vested in a judge. The law needs to address very specifically the protections and safeguards required by due process.

[Sharryn Aiken]

Thank you for your question.

As I began to articulate in my brief remarks, and as our colleague from the B.C. Civil Liberties Association correctly noted, in our view the provisions of Bill C-3 will absolutely find their way back to the Supreme Court. They will not meet the requirements of section 7 of the charter. In CCR's views, Bill C-3 is deeply flawed, and it is not compliant with the requirements of the charter.

To focus specifically on the proposed special advocate model, both in a security certificate context and a section 86 context, I think it's very important to note that the Supreme Court, in Charkaoui, did not explicitly endorse the special advocate model. It cited the model, along with a range of other protections, as examples of procedures that are less rights-infringing than a security certificate procedure that was currently in place and under examination by the court.

The court did not say that the special advocate model, and certainly the model proposed in Bill C-3, would meet the requirements of section 7.

[Janet Dench]

It's not clear in the legislation as it stands. It's far from clear, and one of the things that the government has done in Bill C-3 is to take out the automatic judicial review that occurs currently in the legislation.

A PRA decision in the security certificate process is automatically subject to review by the Federal Court judge. They've removed that, so they've actually taken out some sort of connection between those two processes.

[Murray Mollard, Executive Director, B.C. Civil Liberties Association]

Thank you, Mr. President and honourable members.

It is always a pleasure coming from way out west to a place where when it snows the snow actually stays, unlike Vancouver, where we had a big dump, but of course it rains and it goes away in a very short time. So I thank you for giving me and our organization this opportunity.

I did want to start out by saying a little bit about the concern I think we have and that we've always stated whenever we meet with parliamentarians about national security matters. National security matters tend to invoke a lot of emotion, indeed at times I think panic, among the populace. But we've always said that in this context--and it's a very difficult context of balancing a variety of interests--we want our parliamentarians to be careful to take the time to deliberate on behalf of the collective sovereign, all Canadians, and to carefully consider this.

I'm very concerned. I'm worried about the amount of time you have. I understand the government has introduced the bill at a certain time, and you have to report out and you have to make decisions quickly because of the decision of the Supreme Court of Canada, but I'd urge you to take the time necessary to really fully understand the implications of this bill.

I'm happy to hear that you're going to be hearing from some other witnesses, but there are probably more you could hear from--and indeed, in your discussions internally, take the time to deliberate properly.

I'm going to begin my submission with respect to Bill C-3 by relating a conversation I had with Ian Macdonald, who is a barrister from England and somebody you may be familiar with and may have heard testimony from before. I understand he appeared before a parliamentary committee in Canada earlier this year. We had a conversation with him on July 6, 2005.

As you know, he was a special advocate in the English system but decided, after I believe up to eight years representing--and it's a good question about who he represents--the interests of at least testing information under their system before the Special Immigration Appeals Commission, that he could no longer sustain continuing his role because of his real concern that he was in fact just providing, in his words, a fig leaf, although we were discussing earlier today whether Justice Hugessen has also used that phrase.

In other words, he could not continue to play that role in a way in which he thought lended credence to a system that ultimately could not be sustained as fair and substantially providing due process to those subject to their system in England.

One of the keys for him--and there were a variety--was his inability to meet with the person who was subject to the order and to be able to discuss information that he had received and had reviewed after reviewing all the information before the tribunal. We're not just talking about national security information, because of course that requires some confidentiality, but indeed no ability to really have a discussion with his counsel and the person subject to that order.

That's in stark contrast to what occurred in the Arar inquiry. If you review Justice Dennis O'Connor's report, as I did last night, he'll make it very clear that it was really critical to any in camera hearings that the commission counsel, Mr. Cavalluzzo, was able to, after having seen all the evidence that the government held, have meetings with Mr. Arar and his counsel to be able to obtain suggestions and explore some of the evidence, as much as they could, given that national security confidentiality claim. Being able to explore that evidence as much as possible was very helpful going back into in camera meetings. That didn't occur, and it was one of the main reasons Mr. Macdonald decided to resign.

I wanted to take you then to the Charkaoui case, because after all that's why we're here. It's the decision of the chief justice and the whole of the court that is the reason we're here before you today and you're having to consider this legislation. I want to quote from paragraph 63; this is about halfway through paragraph 63:

The judge, knowing nothing else about the case, is not in a position to identify errors, find omissions or assess the credibility and truthfulness of the information in the way the named person would be. Although the judge may ask questions of the named person when the hearing is reopened, the judge is prevented from asking questions that might disclose the protected information. Likewise, since the named person does not know what has been put against him or her, he or she does not know what the designated judge needs to hear.

If the judge cannot provide the named person with a summary of information that is sufficient to enable the person to know the case to meet, then the judge cannot be satisfied that the information before him or her is sufficient or reliable. Despite the judge's best efforts to question the government's witness--

So we're talking about the judge questioning the government's witness.

--and scrutinize the documentary evidence, he or she is placed in the situation of asking questions and ultimately deciding the issues on the basis of incomplete and potentially unreliable information.

Paragraph 64:

Nevertheless, the judge's activity on behalf of the named person is confined to what is presented by the ministers. The judge is therefore not in a position to compensate for the lack of informed scrutiny, challenge and counter-evidence that a person familiar with the case could bring. Such scrutiny is the whole point of the principle that a person whose liberty is in jeopardy must know the case to meet.

And must have an effective ability to test that case.

Here, the principle has not merely been limited; it has been effectively gutted. How can one meet a case one does not know?

Those are the words of Chief Justice McLaughlin

So I ask you: if the judge isn't able to do that, how is the special advocate that is proposed under Bill C-3 able to do that, given that he or she is going to be in exactly the same position, in a sense, as the judge under the old system, or what exists now, until indeed Bill C-3 passes as is?

The answer is that the special advocate is in no better position to be able to assess that information without an absolute right to be able to go back before the named person on the certificate and his or her counsel and have a discussion.

Now, the joint committee on human rights in England has, in a report earlier this year, again found that there are fundamental flaws in the system of special advocates in England. I understand that in Canada we think we are doing better. I don't think that's the case, and we can maybe get into details about that later.

I want to go back to my discussion, though, with Mr. Macdonald. Ultimately, he said—and I believe he's testified to this fact before Parliament as well—you have to ask the question, is secret evidence and the security certificate process good anti-terrorism policy? In his submission he said that if the authorities only need really to conduct or to provide information to a judge that someone should be removed due to security concerns, the standard is going to be relatively vague. Indeed, this is information. It's not really evidence in the full understanding that we have as lawyers before administrative tribunals and courts, and this information really isn't pursued.

He said his worry, and I think it's very clear, is that the security officials--RCMP, CSIS--need not pursue that information in a way, investigate that information carefully, such that that evidence can become reliable intelligence to ultimately prevent terrorism. And that, after all, is the goal, I would think, to actually prevent terrorism. Indeed, that intelligence can't be converted into true evidence that would be able to be put before a court to pursue a prosecution.

I think the worry here is that, by definition, the security apparatus in Canada is going to cast their net broadly. We know—I don't think Mr. Arar is the only person—that the net is cast so broadly that people who really shouldn't be caught in that net are going to be caught, to their significant detriment. I understand that you, as parliamentarians, have a serious responsibility to ensure the national security of this country, but at the same time, I think Bill C-3 does not balance the civil liberties and the national security concerns in a way that is optimum. Indeed, I think it means it's almost certain that this legislation will be back before the Supreme Court of Canada. Fortunately, it takes years to get back there, rather than the shorter time it takes to come before you as parliamentarians.

I have other things to say, and I expect to have an opportunity as we get into questions.

Thank you very much.

[Sharryn Aiken, Former President, Canadian Council for Refugees]

I would like to begin my remarks by pointing the committee's attention in the direction of some historical context, namely the long history of problems and mistakes made by security intelligence agencies in this country, whether we're speaking about the RCMP or CSIS. We can look to the findings of the McDonald commission that investigated RCMP activity in the 1970s, the recently concluded Arar inquiry, or the Air India inquiry currently in progress, to note that the Canadian public—all of us—need to be very skeptical with regard to the credibility of undisclosed and untested evidence proffered by intelligence agencies in this country. That context is very important to keep in mind as we review the specific provisions of Bill C-3.

Like my colleague Ms. Dench, I would like to draw the committee's attention to a few provisions in Bill C-3 that perhaps have not received as much attention as others. In particular, there's section 86 of Bill C-3, which speaks about the use of secret evidence outside the context of the security certificate procedure. To quote from our brief—and I would note that these paragraphs from our brief were endorsed completely by the Refugee Lawyers Association in their brief, which you should have before you by now as well—essentially I'd like to draw your attention to the fact that Bill C-3 proposes the continued use of secret evidence, non-disclosed evidence, under section 86 in a wide range of cases.

The Immigration and Refugee Board, which convenes section 86 hearings, is much less able to meet the procedural fairness hurdles set out by the Supreme Court. The Immigration and Refugee Board is a quasi-judicial administrative tribunal, not a court, and while only some of its decision-makers are lawyers, none are judges. Hearings before the IRB are conducted with greater informality and fewer procedural protections than before a court, yet the potential consequences for persons affected include prolonged detention and removal from Canada, to a danger of persecution or torture, and they are the very same as in security certificate cases.

Section 86 is even broader, since it allows the minister to apply for the use of secret evidence during any admissibility hearing, detention review, or appeal before the Immigration Appeal Division. There is no requirement that the persons affected even be alleged to be inadmissible on security or criminality grounds. It is enough that the minister wants to introduce the secret evidence. Keep in mind, then, that secret evidence can be introduced in a section 86 context in a case alleging misrepresentation. It may be alleging some form of criminality, but not necessarily serious criminality. And we may even be talking about inadmissibility on the grounds of health or economic reasons. We're talking about vast powers to introduce secret evidence in the context of section 86. The Immigration and Refugee Board member's decision can be based on this secret evidence if the member considers it reliable, appropriate, and relevant. That's the test.

We would ask if the government believes that if some non-citizen's fundamental rights need to be violated because they represent a threat to security, why is the use of secret evidence not limited to cases in which the persons affected are alleged to represent a genuine threat to security? Indeed, every statement made by the government to date—and certainly in the frequently asked questions available on the government's website—seems to imply that the power to deal with secret evidence is only being used in cases involving people who actually constitute a danger to security, a danger to society, and are heard and ruled on by judges of the Federal Court. That's a false premise, as the Refugee Lawyers Association noted, but it doesn't seem that enough people are aware of this. We're talking about Bill C-3 as proposing the continued use of secret evidence in a much broader range of cases.

CCR would like to emphasize the Supreme Court's ruling in the Charkaoui case in response. Although Charkaoui dealt specifically with the security certificate procedures, the case had much to say about the use of secret evidence in the security context more generally. In that regard, I'd like to quote a couple of small paragraphs from the Charkaoui judgment:

The principles of fundamental justice cannot be reduced to the point where they cease to provide the protection of due process that lies at the heart of section 7 of the Charter. The protection may not be as complete as in a case where national security constraints do not operate. But to satisfy section 7, meaningful and substantial protection there must be.

Meaningful and substantial are the key benchmarks here.

The court goes on to note:

If section 7 is to be satisfied, either the person must be given the necessary information, or a substantial substitute for that information must be found.

A substantial substitute for that information, I would underscore again.

It's the CCR's position that the proposed use of the special advocate model in the context of section 86, as well as in the context of the security certificate procedure, fail miserably in meeting the Supreme Court's benchmarks and, indeed, that Bill C-3 in its entirety is deeply flawed as a result. It is not, as the government has suggested, even minimally compliant with the requirements of section 7 of the charter.

I would be happy to elaborate on this point in discussion.

[Janet Dench, Executive Director, Canadian Council for Refugees]

Thank you. My name is Janet Dench, and I am the Director of the Canadian Council for Refugees. I will be making this presentation with my colleague Sharryn Aiken, the former President of the Canadian Council for Refugees.

The CCR, an umbrella organization with more than 170 members throughout Canada, has been following the security certificate file for many years. We took a stand in the 1990s against rights violations inherent in the certificates. We commented on amendments made to the legislation during consideration of Bill C-11, which became the current Immigration and Refugee Protection Act, and we had intervenor status before the Supreme Court in the Charkaoui case.

We share the concerns already expressed by our colleagues from the Ligue des droits et libertés as to the need for allowing a larger number of witnesses to appear, and we underscore the importance of granting ample time to carefully study their submissions.

We have submitted a rather lengtht brief that we prepared, as well as a short summary. The time available will allow us only to present a very brief overview and to emphasize a few points, but we would be more than pleased to answer your questions on other aspects of our brief. I will proceed with the overview.

Canada's response to potential security threats should be founded on full commitment to human rights and should not rely on distinctions between citizens and non-citizens.

The use of secret evidence is a great threat to the principles of fundamental justice. Given this, any use of secret evidence must be kept to the absolute minimum and maximum safeguards must be provided to any person whose rights are at stake. If the safeguards are insufficient to allow the person to know and meet the case against them, the secret evidence must not be used.

The security certificate process should be eliminated.

The potential for the use of secret evidence in other immigration proceedings through section 86 is much broader than in security certificates and the rights safeguards are minimal. This aspect of Bill C-3 has not received the attention it deserves.

Canada must take seriously its obligation to protect non-citizens from removal to persecution or torture. The law needs to be amended in this regard to conform with international human rights instruments to which Canada is signatory.

I'm going to speak a bit about the last point, the issue of protection, which I believe has not been much addressed so far before this committee.

Persons subject to a certificate may have fled persecution in their home countries. Others may not have come to Canada as refugees, but once they are identified by Canada as linked to terrorism, they may face a strong risk of torture if they're removed to a country that practises torture. For these reasons, Canada needs to carefully apply the international obligations that exist under the refugee convention and the convention against torture.

There are a number of serious flaws in Bill C-3 in this regard:

One, it does not bring Canada into compliance with international human rights obligations by providing an absolute prohibition against return to torture and limiting exceptions to the non-refoulement principle to those contained in the refugee convention.

Two, the provisions relating to protection are weak and incoherent. If they are allowed to stand, they will almost inevitably lead to further litigation.

Three, a key problem lies with using the pre-removal risk assessment, known as PRA, to determine the person's protection. Under the PRA, a civil servant must balance the person's need for protection against the danger the applicant constitutes to the security of Canada. At the same time that the civil servant is deciding how dangerous the applicant is, the Federal Court judge is testing the minister's case against the person, including any allegations that the person represents a danger to national security. There is no coordination of these two processes; thus, the civil servant could decide that the person is too dangerous to merit Canada's protection, even while the Federal Court judge is concluding that the person is not quite as dangerous as the government is alleging.

Four, section 115 is added as a proceeding that can happen in parallel with the security certificate process. It appears that the intention is to allow for a re-assessment by a civil servant of a previous determination by the Immigration and Refugee Board that the person is a refugee. This represents a disturbing use of a provision that articulates Canada's most fundamental protection commitment, the principle of non-refoulement, to undermine a person’s status as a refugee.

In conclusion, the provisions relating to protection fail to provide the guarantees of principle and of procedure that are necessary to ensure that Canada respects the protection rights of the persons affected.

[Dominique Peschard, President, Ligue des droits et libertés]

My name is Dominique Peschard and I'm the President of the Ligue des droits et libertés. I will be sharing my 10 minutes with Mr. Philippe Robert De Massy, who is also with the Ligue des droits et libertés.

Mr. Chairman, ladies and gentlemen members of the committee, we are pleased to have the opportunity to appear before the committee on this very important issue. Indeed, in our opinion Bill C-3 raises fundamental human rights issues. On the other hand, it is with a certain distress and true displeasure that we were made aware of the whole consultation process of the committee before the bill is sent to the House for its third reading.

We were pleased to learn that an additional meeting will be held in order to allow Amnesty International, Human Rights Watch and the Canadian Arab Federation to testify. Nevertheless, some of the groups who asked to appear will not be heard by this committee, particularly those groups who are supporting individuals who are presently under a security certificate and groups supporting communities which are particularly targeted by security certificates and concerned with immigration issues and anti-terrorist measures in general. We would ask that you review this decision to ensure that all the groups and organizations who wish to be heard on this matter will have an opportunity to testify before you.

I will now focus on Bill C-3.

Until recently, Canada has always been considered in the world as a leader in the area of human rights. This unfortunately seems to have changed since the turn of the century, more particularly since September 11, 2001. Yet, the Immigration and Refugee Protection Act is one of the only statutes, to our knowledge, to specifically refer not only to the Canadian Charter but also to the international instruments.

Section 3(3) of the Immigration and Refugee Protection Act states:

(3) This Act is to be construed and applied in a manner that [...] (d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination [...]; [...] (f) complies with international human rights instruments to which Canada is signatory.

The objective of Bill C-3 is to eliminate from the Immigration and Refugee Protection Act the aspects which were judged unconstitutional by the Supreme Court in the Charkaoui case. Does the bill meet the requirements expressed by the court in an appropriate manner?

Let us recall some unequivocal statements in the decision. Paragraph of the decision, which deals with security certificates, reads as follows:

25. At the same time, it is a context that may have important, indeed chilling, consequences for the detainee. The seriousness of the individual interests at stake forms part of the contextual analysis. As this Court stated in Suresh: "the greater the effect on the life of the individual by the decision, the greater the need for procedural protections to meet the common law duty of fairness and the requirements of fundamental justice under section 7 of the Charter" (paragraph 118).

In paragraph 27, the court states:

27. The procedures required to conform to the principles of fundamental justice must reflect the exigencies of the security context. Yet they cannot be permitted to erode the essence of section 7.

The judgment describes the main element incompatible with the Charter as follows:

139. [...] section 78(g) allows for the use of evidence that is never disclosed to the named person without providing adequate measures to compensate for this non-disclosure and the constitutional problems it causes.

The primary innovation of Bill C-3 is the creation of the role of the "special advocate"; the expression "défenseur" used in the French version may be misleading, as it seems to imply that the person playing that role is truly the attorney as a named person. Does Bill C-3 actually offer "meaningful and substantial protection"—as was stated in the Charkaoui decision—compatible with the principles of fundamental justice? In our opinion, the answer to that question is no.

I will now give the reasons why we feel that these objectives have not been met.

The named person and his or her attorney will continue not to have access to the evidence adduced against him or her and will not be in a position to test this evidence in an adversarial proceeding affording a full answer and defence.

The special advocate is not bound by lawyer-client privilege and cannot really represent the named person since he or she cannot communicate with the person without permission from the judge and cannot share the secret evidence presented to the judge.

The cross-examination of the CSIS agents will probably be useless since, according to the testimony of former British special advocate Ian Macdonald before this Committee, the members of secret services usually have no personal knowledge of the facts they put forth as evidence.

A judge can receive as evidence elements which would not be admissible in a criminal trial: hearsay, opinions and so on.

There is nothing in Bill C-3 to prevent the judge from unknowingly receiving evidence or testimony obtained under torture and there is nothing the named person can do to oppose that.

The Ministers issuing the security certificates control the evidence: they are under no obligation to present the entire evidence, more particularly those elements of proof which would exculpate the named person. Yet, we know that CSIS destroys evidence. Recently, Adil Charkaoui, one of the persons under a security certificate, has addressed the courts upon his learning of the destruction by CSIS of the recordings of testimonies of which only written summaries were produced in evidence.

[The Chair, Conservative, Garry Breitkreuz]

I'd like to bring this meeting to order.

This is meeting number 7 of the Standing Committee on Public Safety and National Security. We are continuing our study 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.

I want to make a brief announcement before we turn to our witnesses. For the members of this committee, if it's all right with you, we have arranged a meeting for tomorrow afternoon, Wednesday, December 5, from 3:30 to 5:30. We will have three witnesses: Amnesty International, the Canadian Arab Federation, and Human Rights Watch.

Does anybody have a problem with that, or can I go ahead and line up that meeting? This is in relation to a motion that was put before the committee.

Mr. MacKenzie.

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

What I'm saying is that the appeal process is introduced in Bill C-3. It was not in the legislation that Bill C-3 is amending.

[Isabelle Dongier]

Thank you.

The Canadian Bar Association did provide very similar recommendations and criticisms of Bill C-3 in its submission, and our recommendations are similar to those of Mr. Waldman and Mr. Forcese.

[Pierre Poupart, Lawyer, Member of the Committee on Human Rights and Member of the Committee on Criminal Law, Barreau du Québec]

Good morning, my name is Pierre Poupart. I am a lawyer and member of the Quebec Bar. With me today are Mr. Langlais, an immigration lawyer, and Ms. Nicole Dufour, who is in charge of the Research and Legislation Service for the Barreau du Québec.

To begin with, I want to point out that the Barreau du Québec is a professional body whose primary mission is the protection of the public. It is an essential institution within a society such as ours, which is based on the rule of law. As such, it carries out its social responsibilities by standing up for fundamental values that are inherent in a free and democratic society, including equality under the law and respect for human rights.

The working group's report which, I hope, has been provided to Committee members, is the result of a lengthy period of reflection during which members of the Human Rights Committee of the Barreau du Québec, the Immigration and Citizenship Advisory Committee, and the Criminal Law Committee gave a great deal of thought, I have to say, to this issue for many months.

On February 23, 2007, in the Charkaoui ruling, the Supreme Court recognized the utility of the security objectives pursued through the security certificate process, specifying, however, that the latter should not be carried out at the expense of procedural fairness and principles of fundamental justice. On October 22, the Government of Canada tabled Bill C-3, which maintains the use of secret information while introducing a system of special advocates. The Barreau du Québec has concerns about the merits of such a solution, which does not seem to meet the requirements underlying the principles of procedural fairness and fundamental justice.

First of all, as regards continued use of secret information, a person subject to a security certificate will still be deprived of certain fundamental rights guaranteed under section 7 of the Canadian Charter of Rights and Freedoms, including disclosure of the evidence and the right to a fair hearing. Parliament seems to have decided to create the special advocate position to address the fundamental justice problem raised above.

Our first comment has to do with the fact that the special advocate will not necessarily be a member of a professional body that regulates the conduct of members of the legal profession. As regards the special advocate's role, the Bill talks about protecting the interests of the named person in specific circumstances. However, this central function, which is generally carried out by counsel, must be questioned. The special advocate, in particular, is retained and may be dismissed by the judge. Furthermore, as we pointed out, after seeing the secret information, the special advocate may no longer communicate with the person directly affected by it, except with the authorization of the judge. In our opinion, that process undermines the very essence of the duty of representation.

Finally, as laid out in subclause 85.1(3), the relationship between the special advocate and the named person is not that of a solicitor and client which we, as legal counsel, find extremely surprising. As a result, the special advocate does not seem to be bound by the same ethical obligations as a lawyer and there would be no mechanism for the Barreau du Québec to review anything that had been done by a special advocate. As a professional body whose primary responsibility is to protect the public, the Barreau du Québec is concerned about the protection given to a person subject to a security certificate under the current wording of this bill.

The solution we propose reconciles the demands of national security and the procedural rights guaranteed by the Canadian Charter of Rights and Freedoms. In that context, it is necessary to ensure that the evidence that is required is of adequate quality before an order is made regarding indefinite detention or deportation of the named person.

Many questions the current system as regards the content of the “evidence”. We are essentially talking about allegations or information provided by intelligence services in a number of other countries. That intelligence or information may not conform to the standards of reliability that our own legal system considers appropriate, in both civil and criminal matters.

In these cases, the evidence involves information whose probative value is determined on the basis of “reasonable grounds to believe”; you may wish to refer to section 33 of the Act. Introducing information into evidence based on that evidentiary standard has serious consequences if the information cannot be verified, because some of it may have been obtained from a variety of sources, some of which are reliable and others not, not to mention the fact, as others pointed out earlier, that some of the information may have been obtained under torture or through other forms of coercion, perhaps less spectacular but no less efficient.

The consequences for individuals directly against whom this evidence is used may include removal to torture or, worse, be fatal. Under the circumstances, it is important that there be a reliable mechanism for assessing information, in order to offset the weaknesses of the evidentiary regime. In order to meet procedural standards, the level of rights protection must be equivalent to that applied in the criminal law—in other words, the right to retain counsel, which is recognized in the Canadian Constitution.

However, this right becomes meaningless if counsel is not able to adequately represent his or her client, which would most certainly be the case if the current structure were to be retained. Accordingly, the use of secret information or intelligence in the security certificate process is inconsistent with such values as justice and fairness.

The solution adopted must provide for a procedure that guarantees appropriate respect for rights in a manner that is equivalent to the process laid out for criminal matters. Furthermore, the process must allow a court of law to terminate proceedings where the evidence is insufficient or unreliable, and where continuing an unfair process would cause further injury and prejudicially affect the integrity of the legal system.

The court must have access to all the evidence to be used and have the power, after hearing the arguments, to determine which evidence will be disclosed, as well as the validity of that evidence, based on the evidentiary principles underlying the criminal law.

As Lord Hoffman said:

The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these.

He was referring to similar legislation on another continent.

Having said that, we see this as an excellent opportunity not to allow ourselves to be motivated solely by fear which, although it may be the beginning of wisdom, must not drive the drafting of legislation in a free and democratic society. Section 7 of the Charter, if it means anything, is a clause that guarantees everyone the right to life, liberty and security of the person. If I am not mistaken, people who are not yet Canadian citizens certainly fall within the category of “everyone” and therefore have the right mutatis mutandis to protections which are just as rigourous as those guaranteed Canadian citizens.

[The Chair, Conservative, Garry Breitkreuz]

I'd like to bring this meeting to order.

This is meeting 6 of the Standing Committee on Public Safety and National Security. We are continuing with our study of Bill C-3, an act to amend the Immigration and Refugee Protection Act on certificate and special advocate and to make a consequential amendment to another act.

We have a number of witnesses we'd like to welcome this afternoon. We have the law or bar association from Quebec. We have also the Canadian Bar Association and the Federation of Law Societies of Canada.

According to the information I have, you agreed among yourselves that the Canadian Bar Association would go first, then the Federation of Law Societies of Canada, and last of all the Barreau du Québec.

The usual practice at this committee is to allow approximately ten minutes for an opening statement from each of you. Then, of course, we go to rounds of questions and comments.

If you're ready to begin, please introduce yourselves briefly, and then go ahead with your presentation.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

I have only one question, and I'd like the three presenters to answer, if you so choose.

I'm not sure whether you're all familiar with the report that's been submitted by the two previous presenters, Mr. Waldman and Mr. Forcese. Would you say, if I were to ask you generally, that if we were able to implement all of their recommendations, that most of the concerns of the two presenters, Mr. Mia and Mr. Allmand, would be obviated or would be met?

I know Ms. Basnicki said that Bill C-3 is fine, but if it could be improved by general consensus, would you agree that it should be?

[Warren Allmand]

Oh, okay.

I refer you to those sections sent to the commission against torture.

I'll wrap it up, Mr. Chair, by saying that what makes this bill even more unacceptable is the fact that none of the recommendations made by Judge O’Connor in his Arar inquiry report, more than a year ago, have been implemented. He recommended an oversight and review agency for all of the agencies collecting security intelligence information. That has not been done. If it had been done, we might have more faith in the type of information that was being put forward for security certificates.

I guess my final word is that Bill C-3 does not meet the requirements of the judgment of the Supreme Court, the nine to nothing judgment last February. I was going to deal with the question of how we deal with Canadian citizens. We have to go before the courts under the criminal justice system, and they may be as bad or worse than landed immigrants or non-citizens, but we have to prove the case against them in a court of law, according to all the rules of due process, Mr. Chairman, and that's not the case here.

[Warren Allmand, Member of Steering Committee, International Civil Liberties Monitoring Group]

Thank you, Mr. Chairman. I apologize for being late. I was stuck for an hour on the 417, coming into Ottawa, because of an accident in front of me.

My name is Warren Allmand. I'm here with Roch Tassé, representing the International Civil Liberties Monitoring Group, which is a coalition of over 30 NGOs, unions, faith groups, and other civil society organizations that came together in the aftermath of September 11, 2001, to monitor the impact of anti-terrorism measures on human rights and to advocate against violations of national and international human rights standards.

As you know, on February 23, 2007, the Supreme Court ruled unanimously that security certificates used to detain suspected terrorists under the Immigration and Refugee Protection Act were unconstitutional. The certificates allowed government officials to use secret court hearings, untested allegations, indefinite prison terms, and summary deportations when dealing with non-citizens accused of having terrorist ties.

Chief Justice McLachlin, speaking for the entire court, said that the procedures for determining whether a security certificate was acceptable infringed section 7 of the charter. She went on to say at the beginning of her judgment:

The right to a fair hearing comprises the right to a hearing before an independent and impartial magistrate who must decide on the facts and the law, the right to know the case put against one, and the right to answer that case. While the IRPA procedures properly reflect the exigencies of the security context, security concerns cannot be used, at the s. 7 stage of the analysis, to excuse procedures that do not conform to fundamental justice. Here, the IRPA scheme includes a hearing and meets the requirement of independence and impartiality, but the secrecy required by the scheme denies the person named in a certificate the opportunity to know the case put against him or her, and hence to challenge the government’s case.

A little further on, in paragraph 54 of her judgment—and I think it's important to refer to these sections—she says:

Under the IRPA's certificate scheme, the named person may be deprived of access to some or all of the information put against him or her, which would deny the person the ability to know the case to meet. Without this information, the named person may not be in a position to contradict errors, identify omissions, challenge the credibility of informants or refute false allegations.

In paragraph 64, she says:

the principle that a person whose liberty is in jeopardy must know the case to meet. Here that principle has not merely been limited; it has been effectively gutted.

Those are her terms: “has been effectively gutted.” She continues:

How can one meet a case one does not know?

She goes on to say that this infringement of section 7 and sections 9 and 10 is not saved by section 1 of the charter. As you know, you can have an infringement under certain sections of the charter, but they can be saved if they meet the standards in section 1. She says they don't meet the standards in section 1; therefore, they're not saved.

Finally, she says that the declaration is suspended for one year from the date of the judgment, in order to give the government time to come up with something that will meet the requirements of the Constitution.

The only major difference between this Bill C-3 and the previous law is the introduction of the special advocate. The key provisions that prevent the right to know the case against you remain the same. Consequently, after careful examination, it's clear that this provision—the special advocate provision—does not overcome the Supreme Court's arguments and decision of illegality. It does not save or sanitize the security certificate process. There is still no due process, and charter sections 7, 9, and 10 are still not respected.

Mr. Chairman, the suggestion that the Supreme Court recommended this solution, the special advocate solution as set out in this bill, is not correct. Chief Justice McLachlin did refer to several possible models—she referred to the SIRC model, to articles 37 to 39 of the Canada Evidence Act, to the process used in the Air India trial, to the process used in the Arar inquiry, and to the U.K. special advocate system—but she did not give her approval to any one of them.

In paragraph 87 of her judgment she said:

Mechanisms developed in Canada and abroad illustrate that the government can do more to protect the individual while keeping critical information confidential than it has done in the IRPA. Precisely what more should be done is a matter for Parliament to decide. But it is clear that more must be done to meet the requirements of a free and democratic society.

Then in paragraph 61, further to that same point, she states:

In the context of national security, non-disclosure, which may be extensive, coupled with the grave intrusions on liberty imposed on a detainee, makes it difficult, if not impossible, to find substitute procedures that will satisfy section 7. Fundamental justice requires substantial compliance with the venerated principle that a person whose liberty is in jeopardy must be given an opportunity to know the case to meet, and an opportunity to meet the case.

Then at the end of that paragraph, she says:

If section 7 is to be satisfied, either the person must be given the necessary information, or a substantial substitute for that information must be found. Neither is the case here.

Of course, she is talking about the situation that was in place before the case went to the Supreme Court.

Mr. Chairman and members of the committee, under the present bill a judge can still authorize a security certificate on the basis of vague and undefined allegations rather than on precise charges; on secret and dubious information. And the bill does not prohibit, as my colleague just said, the use of information produced under torture.

Bill C-3 is a serious departure from the legal values of this country because it betrays the lawyer-client privilege contained in the charter; the individual has no choice in the special advocate assigned to him or her; it gives augmented powers to law enforcement and intelligence agents, who have made grievous errors in the past; and it can result in indefinite detention on the basis of a low standard of proof. The standard of proof, as you know, is that the certificate is reasonable; it is not based on hard evidence.

The people who are producing the information to support security certificates are the same people who said that Maher Arar and his wife were Islamic extremists linked to the al-Qaeda terrorist movement; that Mr. Arar was in Washington on September 11, 2001, when he was in San Diego; that he travelled from Quebec when he had a coffee in Ottawa with Mr. Almalki, when in fact he lived in Ottawa; that he refused to be interviewed by the police, when in fact he had agreed to be interviewed with his lawyer; and that he then left suddenly, after this request for an interview, for Tunisia, when in fact he left five months later.

I want to ask you, members of the committee, is this the type of information that should be the basis of long-term detention? Under Bill C-3, the special advocate would have access to the secret evidence but could not discuss it with the person involved. Not only would the person not have the opportunity to deny the information or justifiably explain it, but he would not have the opportunity to provide other evidence to support his side of the story. The informants might even leave out certain positive information that could help the individuals, simply to strengthen their case against the individual.

The International Covenant on Civil and Political Rights, which Canada ratified in 1976, states the following, in article 14, paragraph 3(a). It says that a person has “to be informed promptly and in detail in a language which he [or she] understands the nature and cause of the charge against him”.

Pardon me?

[Ziyaad Mia, Former Board Member, Chair of the Advocacy and Research Committee, Canadian Muslim Lawyers Association]

Thank you, Mr. Chair.

Good morning, everyone. Thank you for taking the time to hear our testimony.

I think I'm going up against Karlheinz Schreiber, so I'm probably not going to get much attention today. That's like going against Mike Tyson, I guess, with my hands cuffed. So I'll do my best. I guess a lot of people want to go there. I think I'll go there after as well.

My name is Ziyaad Mia. I'm the chair of the research and advocacy arm of the Canadian Muslim Lawyers Association. I'm a past board member of that association as well. We have been involved in national security policy and legislation issues for a number of years now. We've testified on the Anti-terrorism Act, the Public Safety Act, security certificates, and we've tried to work in a cooperative way to try to develop security legislation and policy that is consistent with Canadian values.

Today, we're happy to speak about Bill C-3. Just at the outset, and I think you've heard it several times, but I've received several personal messages and phone calls from many other groups who are directly interested in this issue, more directly, even, than my organization, representing some of the men detained and their families, and can speak directly to those issues. I'll try my best, but I can't replicate what they'll be able to tell you.

[Maureen Basnicki]

Good morning.

My name is Maureen Basnicki. My husband, Ken Basnicki, a proud Canadian, was murdered by al-Qaeda terrorists in New York on September 11, 2001, while attending a meeting on the 106th floor of the north tower of the World Trade Centre. Ken was one of 24 Canadians murdered that day.

I am here as the founder of C-CAT, the Canadian Coalition Against Terror. C-CAT is a non-partisan advocacy body comprised of Canadian terror victims from every walk of life and faith group, as well as counter-terrorism professionals, lawyers, and other individuals committed to enhancing Canada's counter-terrorism policy.

My comments before this committee will be focused primarily on the issue of terrorism as it relates to security certificates, not on the broader categories of inadmissibility set out in the Immigration and Refugee Protection Act.

I would argue that the most crucial role of security certificates pertains to terrorism, and in particular to the prevention of terrorist acts.

When Canada removes non-Canadian citizens with past records of criminality, or even war crimes, we are making an important statement about our Canadian values and acting to maintain the integrity of Canada as a society. But when Canada removes non-Canadian citizens where there are sufficient grounds to believe they are planning to murder Canadians, to bring down our subways, our school and our water systems, that is more than a statement about Canadian values; that is about saving human lives.

In most of my previous appearances before parliamentary committees and the Air India commission of inquiry, I have testified on behalf of the victims we represent about issues related to counter-terrorism and the rights of terror victims. Today, I am here to speak on behalf of those Canadians who are not yet victims and their rights, to speak about a fundamental right of every Canadian and every human being: the right not to be a victim of a terrorist attack. This is expressed in more general terms in section 7 of the charter of rights, which guarantees the right to life, liberty, and security of the person. There is a corresponding obligation of the Canadian government to ensure that such rights are protected.

I fully concur with British Minister Ian Pearson, who stated in the aftermath of the 2005 London bombings, that there is no human right more sacred than the right to be alive, and without this human right all others are impossible.

It would therefore be an error to perceive the security certificate debate only as a conflict between civil rights and security imperatives. That language obscures the fact that, in truth, this is a debate about determining the appropriate equilibrium between the rights of non-Canadian citizens subject to a security certificate and the rights of all Canadians who are potential targets of a terrorist act by such an individual.

It is C-CAT's view that Bill C-3, drafted according to the directives of the Supreme Court of Canada and two parliamentary committees, has struck the appropriate balance between protecting the rights of the individual named in the certificate and protecting the rights of the ordinary Canadian to be spared victimhood of the type that I and hundreds of other Canadians have suffered.

Security certificates are giving greater latitude to authorities, ensuring that individuals who are not citizens of Canada and are suspected of having committed or are planning to commit the most egregious offences, such as terrorist acts, cannot remain in Canada, disappear into the woodwork, and harm Canadians.

The ability of the government to detain and remove dangerous non-Canadians from Canada, while protecting sensitive information, implements a critical national objective. This is especially true, in my view, if the security certificates are able to prevent a terrorist act.

According to the 2003 public report of CSIS, safeguarding against the possibility of a terrorist attack occurring in or originating from Canada is the highest national security priority. The strength of Bill C-3 is that it provides a tool to protect Canadian citizens while protecting the rights of an individual subject to a certificate. In fact, it could be argued that when comparing the rights of the individual named in the certificate with the rights of the potential victims, should that named individual actually commit a terrorist act, one could easily conclude that this person's rights have taken precedence over those of the potential victims.

Here are a few examples.

First, any individual detained under the legislation can be released from detention at any time should that individual agree to return to his or her country of origin or to a third country. The choice is that of the detainee.

In contrast, the potential victims of these individuals are given no choices. They cannot choose to leave the location of a terrorist incident. My husband and 3,000 others that day in New York had no such choice. Neither did the 331 people murdered in the Air India bombing.

Second, the Supreme Court of Canada has explicitly noted that detention under a security certificate is not cruel and unusual punishment if accompanied by a process that provides for regular detention reviews. Bill C-3 has created such a process, and a very fair one at that.

It seems to me that a person choosing to remain in detention until the resolution of the process, while benefiting from three meals a day, a stocked kitchen, an exercise room, a television, visits from his or her family and religious leaders, as well as regular reviews of his or her detention and the opportunity to appeal decisions at taxpayers' expense is not suffering cruel and unusual punishment.

But cruelty of the most exceptional sort is precisely what could befall Canadians if a terrorist should slip through our system; cruelty of the type that forced couples trapped in the World Trade Center to jump 100 floors, holding hands, to their deaths; cruelty of the type that killed every man, woman, and child on board Air Canada Flight 182, either from the immediate explosion of the suitcase bomb planted in the cargo or from drowning in the Atlantic Ocean after falling thousands of feet out of the plane.

I cannot help but add that in contrast to the detainees, who have access to an on-call psychiatrist, Canadian terror victims and their families have had to pay out of pocket for much needed psychological counselling. This issue has been raised by Air India family members, who testified at the Air India Inquiry that they were in need of counselling after the attack but did not have the necessary resources to obtain it themselves.

Lastly, any individual subject to a security certificate is entitled to a special advocate, who will have access to classified evidentiary materials and can challenge the minister's claim to the confidentiality of these materials as well as their relevance, reliability, sufficiency, and weight. But for the potential victims of such a named individual, our legal system provides no special advocates or other assistance to address the legal needs of victims after a terrorist attack.

All in all, given the dire and irreversible consequences in store for Canadian citizens if an error is made in favour of an individual named in a certificate who then commits a terrorist act, Bill C-3 has given considerable leeway to these individuals.

If for some the concern regarding the potential abuse of security certificates still supercedes the concern for saving real lives from the very real threat of terrorism, they should consider the following. By assisting authorities in preventing a major terrorist attack, these rather modest provisions will have protected our legal system from the inevitability of coming under even greater pressure, in the aftermath of an attack, to enact measures even more stringent and controversial in order to more adequately protect Canadians from other attacks. This possible backlash, resulting in even tougher laws that would go much farther than Bill C-3, is surely a scenario that all sides of this debate wish to avoid.

Members of the committee, given the unprecedented security challenges presented by terrorism as well as some of the obvious limitations of our criminal justice system in prosecuting the perpetrators and sponsors of terrorist attacks, security certificates are sorely needed. We must face the fact that terrorism is not another form of ordinary criminality. Terrorism is different in its scope, intent, method, and consequence. Combatting terrorism has pushed to new extremes what the Supreme Court has described as the “tension that lies at the heart of modern democratic governance” between “imperatives both of security and of accountable constitutional governance”.

We believe that Bill C-3 has found a reasonable and effective accommodation that addresses this tension, fulfilling the base requirements of both imperatives. Terrorism requires special technologies, policies, and legal structures to protect Canadians. Bill C-3 is a very good step in this direction, and on behalf of C-CAT and the terror victims we represent, we wish to voice our support for this bill.

[Prof. Craig Forcese]

Thanks very much for the question.

The first point to note is that Bill C-3 right now doesn't affirmatively close the door to continued access. It leaves it in the discretion of the judge.

A similar rule in the United Kingdom has produced virtually the absence of access. There is no continued access. Why? Because a similar rule in the United Kingdom has been applied, such that the special advocate, if they wish to communicate with the individual after they've seen the secret evidence, must do so in writing, and their questions must be vetted by the government.

No lawyer worth their salt is prepared to pose a question to an individual whose interests they're supposed to represent when it's first going to be vetted by the government for fear that the very fact of asking the question could be prejudicial to their interests.

In practice, there's no continued access. This has been the single most controversial aspect in the United Kingdom system.

In terms of the implications of absence of continued access, I can recount you a story that was, in turn, recounted to us by the SIRC special counsel, who does have continued access in SIRC proceedings.

If he were here, he would tell you of one case in particular where at issue in the SIRC proceeding was whether an individual had been in a certain country at a certain time. I don't know what the country is. Let's assume it was Afghanistan in the late 1990s, and the presence in Afghanistan in the late 1990s would have suggested that there might have been some problematic aspect to this person's behaviour. Obviously, having been apprised of that information, the independent counsel could not go directly to that person and ask if they were in Afghanistan in 1997 because that would of course betray the basis of the government case and potentially be prejudicial to national security. So all the special advocate asked for was the CV of the individual, which the security service had never thought to ask for. On that CV was an entry by which, upon follow-up, the special advocate of the independent counsel was able to establish, verifiably demonstrated, that this individual had not been in Afghanistan during the material period.

Here is an example of continued access: a very banal question that one would have hoped the security service would have asked in the first place, a very banal question being posed that caused the government's case to collapse ultimately. The entire government's case was predicated on this issue and the government's case was undermined as a consequence of this very banal question.

Speaking to SIRC and to independent counsel, there's never been an allegation that this continued access by SIRC legal counsel to individuals has been prejudicial to national security, that there's been an involuntary disclosure.

We acknowledge that there should be an affirmative obligation on the independent counsel not to disclose the secrets. We believe that any lawyer worth their salt can pose a question in a manner that extracts useful information but does not betray a national security confidence.

That was the case for the Arar commission, and I'm sure Lorne could describe how little information he was able to glean from any of the questions that were posed to him by the Arar commission counsel.

[Penny Priddy, NDP, Surrey North, BC]

Thank you, Mr. Chair.

I will take the very first few seconds, if I might, to say that I have had many letters, even in the last 24 hours, from organizations that are concerned that they have not had an opportunity to testify. I wanted to put on the record that correspondence had been received from groups like the Coalition for Justice for Adil Charkaoui, the Justice for Mohamed Harkat committee, Amnesty International, Human Rights Watch, and the Canadian Arab Federation. I may have missed some, but those are the ones that I've heard from, and I wanted to note their concern that they had information they thought the committee should hear and were not being afforded the opportunity to speak before the committee.

I would like to ask either Mr. Forcese or Mr. Waldman this: if there is not an open communication between the special advocate and the detainee, as it is currently stated in Bill C-3 would not be the case, at least not once the special advocate had reviewed the information, could you speak to both what you might see as the legal implications of that, in terms of the court system, and what you would see as the moral and justice implications, if you will?

[Prof. Craig Forcese, Associate Professor, Faculty of Law, University of Ottawa, As an Individual]

Thanks very much, Lorne, and thanks to the committee and to the chair for having us here today.

As Lorne noted, we're proposing a series of relatively minor amendments to Bill C-3 that incorporate these key objections that Lorne has raised. We have tabled a document with you that is essentially an annotated version of Bill C-3. The amendments we're proposing amount to maybe 500 words, and with those 500 words we think Parliament could graft onto Bill C-3, as presently constituted, something analogous to what happens in SIRC.

The two key areas enhanced in these proposed amendments are, first of all, an absolute statutory obligation on the government to disclose everything--all relevant information--so in our proposed language here we define what we mean by “relevant information”. We impose the obligation to disclose all relevant information on the government. We then certify or allow the special advocate to challenge the scope of disclosure by the government and then to seek the assistance of SIRC, which would have access to all the government information, to certify that in fact there has been full disclosure. This is a way of wrapping SIRC, which has a statutory authority to see all the information in the possession of CSIS except cabinet confidences, into the process of scrutinizing the scope of disclosure.

Now I want to underscore that we're not proposing this because we think that just in principle it's a good idea; we're proposing it because in the United Kingdom the special advocates told us they don't get to see everything. They take the view that there is an obligation on the government to disclose all information, including exculpatory information, but the special advocates in the U.K. have told us that there are instances in which they have discovered exculpatory evidence in case A that was not disclosed, and they only find this out through happenstance in case B. We want to pre-empt this possibility.

The other reason we're urging a statutory full disclosure obligation is the Arar commission experience. Counsel for the Arar commission told us that but for the fact that he could subpoena information above and beyond what the government thought was relevant, the truth in relation to Mr. Arar would never have come out. Both of these experiences drive our recommendation in this area.

As Lorne noted, there is a second broad area that we think requires tinkering. It is to apply an affirmative right for the special advocate to continue to communicate with the interested party after they have seen the closed information, the secret information. That is a practice, as Lorne noted, that is available in SIRC. Outside counsel for SIRC, who we hoped would be able to attend today but is not able to because he's in court right now, told us quite emphatically that he has seen cases collapse because he was able to ask for information that did not betray any secret that this counsel had in his possession. He was able to ask for information from the interested party that then prompted the government case to collapse in a SIRC proceeding.

That experience again--this practical, on-the-ground experience--suggests that it's vital for this special advocate to have continued access to the interested party, subject to an obligation not to disclose a secret, so the questioning would have to be oblique, but even oblique questioning, we're told, has resulted in the special advocate receiving information that causes government cases to collapse.

The last point I'll make, because I know our time is coming to an end here, is about an issue that Lorne did not raise. We have here a requirement in the bill that a summary be prepared for the interested party themselves. It is a summary prepared initially by the government and then endorsed by the judge, essentially. That summary, right now, contains information that a judge decides does not impair national security.

That is a very different standard from the standard applied in our Canada Evidence Act. In the Canada Evidence Act, information that raises a national security interest can be released if that interest is outweighed by a public interest in a fair trial. So there's a balancing that goes on in the Canada Evidence Act.

The absence of a balancing in this bill renders this bill, in our view, inconsistent with the House of Lords' recent determination at the end of October. The House of Lords in the United Kingdom ruled that in the United Kingdom the special advocate system there, which does not allow a balancing either, was too restraining. So it's likely that in the next few months we'll see a change in the U.K. system that will allow the adjudicator in these U.K. proceedings to weigh the national security interest against the fair trial interest. We're proposing a total of 25 or 30 words of amending language that would create a balancing test in the IRPA context.

I know we're out of time and I know there are probably some questions, so let me end there.

[The Chair, Conservative, Garry Breitkreuz]

I'd like to bring this meeting to order. This is meeting number 5 of the Standing Committee on Public Safety and National Security.

Today, we are examining Bill C-3, An Act to amend the Immigration and Refugee Protection Act, focusing on certificates and special advocates, and to make consequential amendments to any other acts.

For the first hour this morning we would like to welcome two witnesses to our committee, Professor Craig Forcese and Mr. Lorne Waldman.

We have one hour with you gentlemen. You may make an opening statement for approximately 10 minutes. I suppose you know the practice at the committee is then to go around, and I'll offer questions and comments.

Ms. Priddy, do you have a comment?

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

I know many proceedings on appeal, but none that is as restrictive as the one you have devised in this instance.

Could you tell me where you found the model for the right of appeal in Bill C-3?

[Warren Woods, Senior Policy Analyst, Operational Policy Section, National Security Policy Directorate, Department of Public Safety and Emergency Preparedness]

Yes.

If I understand correctly, the committee that studied the Anti-terrorism Act, and it also included the study of IRPA in their jurisdiction, were concerned with the Federal Court process that was a dual process. It included both an assessment as to whether or not the certificate was reasonable and it also determined if a pre-removal risk assessment issued by the Minister of Citizenship and Immigration was lawful. So it had this double assessment process, and that process was complex and it led to delays in the issuance of both PRRA decisions as well as reasonableness findings from the Federal Court.

This played out in a number of cases, so the committee recommended that we eliminate the suspension that suspends the reasonableness hearing. So this has been done in Bill C-3. That's been done, and it goes further than that. It allows the reasonableness hearing to proceed in parallel with an application for refugee protection or an application for a pre-removal risk assessment, so that's what you're reading in subclause 77.(3).

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

I think we've approached some of the very tender subjects, some of the most important parts of the legislation that the anti-terrorism committee looked at, even though they weren't necessarily part of the act, as Mr. Cullen indicated.

I have had some people approach me, average Canadians, who believe that Bill C-3 is being very generous to people who are foreign nationals. They have the right to expect to be treated in accordance with Canadian law, but they also have the right to leave the country if they feel they're ill done by. That's the so-called three-sided jail.

One of the other issues that surrounds us in these times of great need in our country, which we hear both in this place and out in the communities, is the cost of doing business in governance. One of the issues that was brought up, and it's not to demean the process but to actually bring some light to the process to the average person on the street who listens to the esoteric arguments and some of the discussions that go on here, is have we costed it out?

One of the important things that we see in our judicial system is the cost of doing business and the cost of providing legal representation. Have we costed out some of the provisions that are being suggested? In other words, how much more is this going to cost the Canadian taxpayer? I guess what I'm trying to say is that good lawyers don't come cheap.

[Roy Cullen, Liberal, Etobicoke North, ON]

It goes back a bit, but in the course of looking at that, the decision was made by the subcommittee to include the review of security certificates, even though it's under the Immigration and Refugee Protection Act.

It's interesting that you're leading on Bill C-3, sir, and not the Minister of Citizenship and Immigration, but maybe this is the new reality. It's the processing. Frankly, I'm not that interested.

I have a few points on a couple of the issues. One of the things our subcommittee concluded—admittedly with dissenting opinions from the Bloc and the NDP—was that security certificates were still required, but some improvements had to be made to the process. We felt we were in pretty good company with the Supreme Court. I can't remember which decision came first.

One of the compelling things for me was when we heard from Paul Kennedy at the very first subcommittee. He was not the complaints commissioner at the time; he was a senior official at Public Safety and Emergency Preparedness Canada. He brought a file concerning an alleged Iranian assassin. It was in a thick binder, and he had whited out all those things that would compromise national security and confidentiality. He took the committee through the whole dossier.

There was a member from the B.C. Civil Liberties Association sitting at the table on the panel. I remember asking him if he would like to have this individual as his next-door neighbour. He said no, he wouldn't. I said, “So your problem is...?” He said, “Well, it's the process”. We're on the same page. We think the process needs improvement.

There's something in the response in Bill C-3 that I'm a little curious about and a little disappointed in. Our subcommittee had recommended a special advocate counsel, like a cadre, that would look at not only the security certificates process, but also a few other processes, like the deregistration of registered charities, denial of charitable status, and applications for the disclosure of information under the Canada Evidence Act. There have been allegations—and I think with some merit—that these have star chamber types of characteristics to them as well.

The government's response this summer sounded lukewarm. It said: “At the present time, the government believes that further study of the use of special advocates in other processes is required.” Reading between the lines, I don't know if that means we don't agree and we're deep-sixing it, if there is a study, or if there is a study, what the timelines are.

What are some of the issues that were presented in not adopting these recommendations at the same time? I'm not pretending that we own a monopoly on truth and wisdom on these, but are you looking at developing a cadre to be used for these other processes as well?

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

That gets to my next question.

You've outlined the specifics of Bill C-3, but so that all of us can really appreciate the context of this bill, can you confirm that the Supreme Court actually upheld the constitutional validity of all existing security certificate processes of arrest and detention, the withholding of information to detainees on the basis of national security, extended or uncertain detention or restricted release, the notion that the rule of law permits restricted rights of appeals in presumptive detention in the security and immigration context, and that section 6 of the charter notes that non-citizens do not have a charter right to enter or remain in Canada?

Are you confident that the Supreme Court will uphold the constitutional validity of what we're proposing here in Bill C-3?

[Penny Priddy, NDP, Surrey North, BC]

Thank you.

Thank you, Mr. Minister.

Because the NDP takes a somewhat different position on this, I'm going to use about a minute of my seven minutes to put some context around that. I think the minister knows that the NDP is opposed to this legislation. We think terrorism and espionage and organized crime are very serious matters that should be dealt with under the Criminal Code of Canada. We don't necessarily think Canadians are safer when people who are a threat to our system are simply made to leave the country. We do have a very good justice system here in our country. So we believe that anyone who's responsible for a criminal act should be charged under the Criminal Code, regardless of their status in Canada.

We are concerned that under these circumstances the security certificate process proposed in Bill C-3 undermines some fundamental values in our justice system. Even with the provision for a special advocate—and I know we will talk more about that—security certificates, we still think, violate certain civil liberties that are important to any democracy.

So in light of those objections, I'd like to explore just a bit with the minister some questions that I might have, and I thank you for answering those.

If a foreign national or permanent resident is suspected of terrorist activities, they are detained, and may appeal--correctly--and perhaps then be deported as the next possible step under the security certificate process. What happens if a Canadian citizen is charged with the same crime? Would they then be arrested, charged, tried, and punished? So why are there two separate processes?

Secondly, when a permanent resident or a foreign national is deemed to be a threat in Canada and is deported back to their own country, what happens to them when they arrive in their own country? Are they free, then, to go back to organizing all of those things that we were worried they would organize here? Or are they under some kind of penalty when they return?

[The Chair, Conservative, Garry Breitkreuz]

Sir, with all due respect, I think you were part of the agreement that we were going to study the topic at hand, Bill C-3. Correct me if I'm wrong.

[The Chair, Conservative, Garry Breitkreuz]

I'd like to bring this meeting to order. This is meeting number 4, for 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. You have the agenda before you.

I'd like to welcome the Minister of Public Safety, the Honourable Stockwell Day.

The usual practice at this committee is to give you approximately ten minutes or so, and then the questioning will begin with the official opposition and go around the table.

Welcome, sir. If you're ready, you may go ahead.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

As to what witnesses you invite from time to time, the committee would meet in camera, or otherwise the steering committee could meet and deal with those issues.

Let's not jump ahead and think we're not going to be able to do this. I think we will be able to do this.

I agree that we had agreed to deal with Bill C-3 as a priority, and that still remains a priority. If we can get this work started before Christmas, it won't be finished for several months. I'm hoping that by then we will be able to have some benefit from the other studies. Some of them will be completed.

We should do Bill C-3. We should, if at all possible, do witness protection as well. I'm a little more flexible with respect to witness protection. If we can put in a meeting or two on this issue before Christmas, and witness protection, and go beyond the new year—and this, obviously, will continue for some time—I'm okay with that.

I'm happy to be bound by the other members of the committee if they want to do Bill C-3. Obviously we all want to finish Bill C-3 because of the court prescription. If we want to finish witness protection before Christmas, I will reluctantly go along with the committee.

The idea here isn't to be obstructionist, but if we can commence this work, even one meeting on this, and then finish it in the next sitting, I'm happy with that as well. I understand the constraints on our time.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Or that particular airport. But I don't know why it should be just that airport, if we're talking about services. I think we're getting almost to the point where anything concerning an airport....

I would like, with respect to Mr. Dosanjh's motion, to say that I think it's a good idea, as I mentioned at the last meeting, that we look at this issue. But to do it justice, I think we have to do a lot of things to make sure we hone it to exactly what the intent is.

We are, if we count Nova Scotia now, getting into six and seven—and we'll make it eight—examples, and I agree that this is a federal issue. When we're dealing with CBSA, RCMP, and airport authorities, definitely the federal government has almost exclusive jurisdiction in those areas—with deference, of course, to the administration of justice.

But I also am cognizant of the work ahead for the committee. We were all in agreement that we would go along this line and discuss this issue, provided it didn't hold up Bill C-3 and one other thing we're dealing with and are almost right at the end of, and that's our witness protection issues.

I think there's almost unanimity here that we do this, so let's now figure out the mechanics of how we're going to deal with those three issues.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Thank you.

The motion is before you. I'm sure I'm not required to read it, but I'd be happy to read it if you so wish; it's pretty brief. I move that we study the incident involving Robert Dziekanski in Vancouver and invite the representatives of the Canada Border Services Agency, the Vancouver International Airport Authority, and the Royal Canadian Mounted Police, and other parties or interested individuals to make representations to the committee to that effect.

Of course, one of the issues to be discussed would be the tasers, but that wouldn't be the only issue.

I'm suggesting that we invite witnesses. If there's a consensus in the committee, that would be better, but if there's no consensus, we might have to vote on it. A list of witnesses can be put together by the clerk. Some of these people would be representatives of CBSA, RCMP, Transport Canada, the Vancouver International Airport Authority, the B.C. Civil Liberties Association, the Canadian Civil Liberties Association, and Amnesty International; use of force experts with knowledge of taser use; medical experts or doctors with knowledge of tasers; a representative of the manufacturer of tasers; police training experts with knowledge of the police training manuals for tasers and training generally; perhaps individuals with personal experience of being tasered, such as Matthew Gray or Karen Geldart; and in addition to them, perhaps even some officers who may have had the experience of tasering individuals, so you can hear firsthand from officers and under what circumstances they have used tasers and to what effect.

I know that Bill C-3 is coming before us and that it's a priority, but I'm suggesting that as we do Bill C-3, we do some of this as well before the break. Then, of course, we can come back and finish off after the break, as we do witness protection as well.

Immigration and Refugee Protection Act

[The Acting Speaker, Conservative, Andrew Scheer]

It being 5:41 p.m., the House will now proceed to the taking of the deferred recorded division on the motion at the second reading stage of Bill C-3.

Call in the members.

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

[The Chair, Conservative, Garry Breitkreuz]

That was part of my suggestion--that whenever these people are available, we'll fit them in and work around Bill C-3. We're a bit flexible on Bill C-3, as long as we get Bill C-3 done before it's too late.

Do we have a consensus on this now?

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Chair, with all due respect, and I understand what the member is saying, but this committee went through the Anti-terrorism Act. We've done study after study. The immigration committee studied it. The Supreme Court has studied it. What we're dealing with here is after the Supreme Court looked at the whole issue, they said, here are two issues that need to be addressed, and they have to be addressed by a certain time. It's not to cut them off, but maybe what we should look at is doing another study afterwards, but dealing with Bill C-3, which is only these two small issues. We're not trying to shut them off or not give them an opportunity, but....

[The Chair, Conservative, Garry Breitkreuz]

We have the 22nd, when possibly the officials can come, and the minister can come on the 27th.

The next meeting is on the 29th. For the 29th, do we wish to invite witnesses on Bill C-3? Keep in mind that we also want to do the witness protection and wrap that up here before Christmas.

We've had five requests to appear on Bill C-3: the B.C. Civil Liberties Association, the Canadian Bar Association, the Federation of Law Societies of Canada, there's a group, in French, here....

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Since he's here, he might as well. Why not? We're free to ask questions.

I can read your notes on Bill C-3. There's not much he can tell me that I can't learn.

[Dave MacKenzie, Conservative, Oxford, ON]

It's just that I think there's a problem with time on Bill C-3.

[The Chair, Conservative, Garry Breitkreuz]

On Bill C-3?

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Chair, I would just say to the member that we would like to have that as one of the couple of things we'd like to put forward to the committee. One is the DNA databank and the other is the sex offender information registry.

But I think our priority on this side, as it is for the official opposition, is to clean up the two issues. Our priority, obviously, at this point is Bill C-3, but we'd like to get the witness protection matter cleaned up and then have a clean slate going into the new year.

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

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

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

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

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

[Philip Rosen]

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

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

[The Chair, Conservative, Garry Breitkreuz]

Okay. We are finished.

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

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

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

Mr. Dosanjh.

[James Bezan, Conservative, Selkirk—Interlake, MB]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Mario Silva, Liberal, Davenport, ON]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Pat Martin, NDP, Winnipeg Centre, MB]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Shawn Murphy, Liberal, Charlottetown, PE]

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

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

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

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

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

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

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

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

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

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

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

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

[Shawn Murphy, Liberal, Charlottetown, PE]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Pat Martin, NDP, Winnipeg Centre, MB]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you for your attention. I will take questions.

[Judy Sgro, Liberal, York West, ON]

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

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

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

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

[Pat Martin, NDP, Winnipeg Centre, MB]

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

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

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

[Judy Sgro, Liberal, York West, ON]

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

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

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

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

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

[Judy Sgro, Liberal, York West, ON]

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

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

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

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

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

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

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

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

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

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

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

Bill C-3 also enables the minister to apply for the non-disclosure of confidential information during a judicial review of a decision made under the act, and gives the judge discretion to appoint a special advocate to protect the interests of the person concerned.

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

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

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

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

However, the system as it is currently must be reformed. The court had particular concerns with respect to secrecy of the judicial review system which prevents individuals from knowing the case against them and hence impairs their ability to effectively challenge the government's case.

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

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

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

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

The Supreme Court agreed that the protection of Canada's national security and related intelligence sources does constitute a pressing and substantial objective, but it also found that the non-disclosure of evidence at certificate hearings is a significant infringement on the rights of the accused. I believe most Canadians and most of us as parliamentarians will have to admit that we had some concerns in that very area. Finding the right balance is the challenge.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[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)