Bill C-3 (Historical)

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

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

Immigration and Refugee Protection Act

[Bev Oda, Conservative, Durham, ON]

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

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

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

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

This government wants what Canadians want. That is why we are unwavering in our determination to safeguard national security and to protect the safety and security of the Canadian public. This government has taken its commitment very seriously.

The Immigration and Refugee Protection Act provides the government with a process to remove non-Canadian citizens who are inadmissible on grounds of security, violating human rights, spying, or serious criminality or organized criminality. Through intelligence and investigation, Canadian authorities determine the risks posed by various individuals and recommend whether they should be allowed to remain in our country.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Dave MacKenzie, Conservative, Oxford, ON]

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

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

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

[Bruce Stanton, Conservative, Simcoe North, ON]

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

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

[Dave MacKenzie, Conservative, Oxford, ON]

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

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

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

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

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

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

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

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

[Dave MacKenzie, Conservative, Oxford, ON]

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

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

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

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

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

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

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

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

[Dave MacKenzie, Conservative, Oxford, ON]

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

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

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

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

[The Acting Speaker, Andrew Scheer]

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

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

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