Bill C-3 (Historical)

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

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

The House 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.

Speaker's Ruling

[The Deputy Speaker, 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.

Motions in Amendment

[Penny Priddy, NDP, Surrey North, BC]

moved:

Motion No. 1

That Bill C-3 be amended by deleting Clause 1.

Motion No. 2

That Bill C-3 be amended by deleting Clause 2.

Motion No. 3

That Bill C-3 be amended by deleting Clause 3.

Motion No. 4

That Bill C-3 be amended by deleting Clause 4.

Motion No. 5

That Bill C-3 be amended by deleting Clause 5.

Motion No. 6

That Bill C-3 be amended by deleting Clause 6.

Motion No. 7

That Bill C-3 be amended by deleting Clause 7.

Motion No. 8

That Bill C-3 be amended by deleting Clause 8.

Motion No. 9

That Bill C-3 be amended by deleting Clause 9.

Motion No. 10

That Bill C-3 be amended by deleting Clause 10.

Motion No. 11

That Bill C-3 be amended by deleting Clause 11.

Motion No. 12

That Bill C-3 be amended by deleting Clause 12.

[Stockwell Day, Conservative, Minister of Public Safety]

Mr. Speaker, we in the House are giving consideration to the bill before us, which is to address the Supreme Court ruling regarding the issue of security certificates. To quickly recap, security certificates themselves, or a process not unlike what we have had over the last few years, have been in place in Canada for some period of time, dating back to at least 1977.

Here is the situation in its most basic form. About 95 million people visit this country every year. The vast majority of those who decide to stay contribute in a very positive way. Approximately 260,000 of those are people who want to stay here. The vast majority of those people add greatly to the strength and stature of our nation. They bring their skills, values, beliefs, hopes and dreams for the future. Our country is strengthened by that and made a better place. But among the people who come here every year, there will always be a few who should be deemed inadmissible because they are a threat to our country.

Our country has a very generous system for people to appeal a notice of inadmissibility. The process of appeal can take quite a period of time. There are a number of different levels at which a person can appeal. What does a government do?

Any government's first responsibility should be the safety and security of its citizens. There are some people who arrive on our shores who are identified by intelligence agencies, because of information the agencies have, as possible terrorists or who have strong terrorist affiliations. They may be active members of an organized crime organization. They could be serious present and imminent threats to our own people. When people are told they are inadmissible and have to return to their countries of origin, they begin the appeal process, which can take years.

Actually, most people who decide to appeal a particular notice of inadmissibility or an order which does not allow them to come in are not security risks. They may have other issues, but they are not security risks. However, from time to time there are individuals who are deemed to be so dangerous and such a risk to our own citizens that we cannot contemplate allowing them to move around the country at will for possibly a number of years while they appeal the order to be removed. Therefore, a system of detaining them was put in place whereby a certificate would be signed.

The security agencies themselves, and in many cases it is our own intelligence service, will present to the Minister of Public Safety and the Minister of Citizenship and Immigration in confidence the reasons a person should be declared dangerous. They will ask that a certificate be signed. The person would then be detained while appealing his or her status.

It does not stop there. That security certificate has to go before a judge to make sure that it complies with our Charter of Rights and Freedoms and the vast framework of other guarantees and rights that are available to individuals. When a judge grants it, the security certificate comes into play and the person can be detained. If the individual's appeal process takes a year, two years or three years, the person is detained in a detention facility.

The interesting thing about the nature of that detention is that detainees are allowed to leave the facility any time they want, if they choose to go back to their countries of origin. Some choose not to do that for some obvious reasons.

This whole process was challenged and validated at a number of levels right up to the Federal Court of Appeal and found to be constitutional, until last February 2007 when the security certificate process was challenged. The Supreme Court, although not saying the entire process was unconstitutional, pointed out a couple of areas that had to be strengthened if the process was going to remain in place.

That is what we have done. We have taken the time not just legislatively but to consult with a variety of individuals, groups and organizations across the country to deal with the two areas mentioned by the Supreme Court.

The first is the notion of having a special advocate dedicated to the interests of the person being detained. That person can already have his or her own counsel, and in most cases already does. The special advocate has special powers to review all the confidential classified information that the intelligence services have brought forward against the person declaring him or her to be dangerous. That obviously is information which cannot be made public because it has to do with our national security. It has to do with people who work for our intelligence services and how they acquire certain information. That information does at least have to be seen in confidence by a judge.

Now we have arranged in the legislation for a special advocate with powers to see the classified information, for the ability to talk to the person who is being detained. There is still the provision that once they have seen all this classified information to do with national security, they cannot discuss that with the person being detained.

An addition has been made to the legislation, clause 85.2(c), which would allow the advocate to appeal to the judge for any other type of special power that he or she deems necessary to complete the work and properly protect the interests of the person being detained. It is a catch-all phrase to cover unanticipated circumstances that may come up.

The special advocate can also challenge the witnesses, the intelligence officers and the information itself.

Broadly speaking, we believe the special advocacy provision has been addressed and will give significantly increased protection to the rights of the detained individual.

The other area of concern to the Supreme Court justice was the length of time of detention without a possible review. Presently, if a person who is being detained is a permanent resident, he or she can have a review of that order within 48 hours and then automatically every six months. Until recently, foreign nationals could have a single review 120 days from the time the certificate was put in place. We have changed that to allow them to have the same footing as permanent residents. They can have that certificate reviewed every 48 hours and then every six months. We believe we have addressed that.

We have also looked at another clause called the privative clause. This is in the IRPA itself. As it exists now, that clause limits the amount of judicial review on a case like this. We have removed that to give even greater breadth.

There is a difference between criminal proceedings and immigration proceedings. In a criminal proceeding, a person has broken the law and proceedings start so that can be proven in a court of law. The person can be not just charged but convicted and in fact detained in a penitentiary, in the jail system, for punitive reasons and for rehabilitative reasons. That is entirely different from an immigration review process, which is done simply to determine and protect the safety and security of our citizens.

Those are the main elements of the bill before us. I would encourage all colleagues to set aside partisanship to realize that the security certificates have been proven not to threaten the individual rights and freedoms of Canadians. As a matter of fact, the security certificate cannot even be applied against a Canadian citizen. It can only be used on foreign nationals or those who are not Canadian citizens.

Further to that, since 2001, with about a quarter of a million people a year coming into our country, these certificates have only been applied in six particular cases, or it could be argued that it is seven cases. They have been applied in literally a handful of cases. This is where a judge has agreed, not just with me as public safety minister and public safety ministers before me but also with the intelligence information, that the persons who are deemed to need detention have either significant terrorist affiliations or are significantly involved or deemed to be involved with violent possibly international criminal organizations. These are people who are deemed to be so dangerous, with the necessary documentation provided to satisfy a judge, that they should not be allowed to be in our country. This provision has not been applied in a haphazard fashion. It has been done very carefully.

If we do not have these in place and pass the bill, the security certificate system will collapse. The Supreme Court gave us a year to do this. The year is almost up. I believe we have honoured the declarations of the Supreme Court and at the same time we have balanced individual rights and freedoms along with security interests.

Our country will be safer because of the security certificate provisions being in place, but our country and our citizens will be somewhat at risk if the system is allowed to collapse.

I ask members, especially those opposite, in a non-partisan way to consider the important nature of the provisions that we have attained today and to pass this bill.

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.

Immigration and Refugee Protection Act

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

Mr. Speaker, I have a question for the minister. He talked about people who were so dangerous to Canadian society that we should suspend some of the key principles of our criminal justice system in Canada, which would allow things like indefinite detention, secret evidence and even secret trial, and instead deal with these people by seeking their removal from Canada.

However, it seems to me that when we are talking about crimes of terrorism, espionage and plotting against the national security of Canada, we are talking about some of the most serious crimes that could be perpetrated in this country. Yet our response through this law is to seek the removal of those people, not their punishment, not their conviction, but their removal, and thus foist them on some other jurisdiction.

If we believe that these people are this kind of serious criminal, why are we not taking every possible measure to prosecute them criminally, to convict them and to incarcerate them here in Canada?

[Stockwell Day, Conservative, Minister of Public Safety]

Mr. Speaker, I attempted to address that in my earlier remarks. There are two types of proceedings that in fact in their very nature are different from each other.

One is a criminal proceeding whereby we are pursuing people from the point of view of them having violated a law inside our borders and we want the charges seen through to a conviction and then incarceration for the purpose of both punitive and rehabilitative measures.

That is not the case with immigration proceedings. We have immigration proceedings that go on literally through the year by the thousands. As a matter of fact, last year, through immigration proceedings being appealed, and with the rules of immigration proceedings, possibly 12,000 people were removed from the country.

Is the member seriously proposing that there be separate trials set up in terms of inadmissibility to Canada? These are not Canadian citizens we are talking about. In terms of those who have been removed, these are people who came here under the wrong pretenses or who for some reason have come up against the rules and regulations of this country.

Is the member suggesting that there should be 12,000 more cases a year applied to individuals who are already allowed a very generous and extensive review process, sometimes with information that has been acquired with means that, if the information and how we got it were made available, would put our own people at risk and put our own intelligence networks at risk?

Is the hon. member saying to give the benefit of the doubt to somebody of whom a judge has said, and of whom a number of judges have said, that there is significant enough evidence to link this person, let us just say, to a terrorism network, so that person should not be put in some other jurisdiction, as he said, but sent back to their country of origin? He is saying that we should give the benefit of the doubt to the person who has evidence against him or her, certified by a judge, that shows him or her to be a possible imminent danger. He says to give the benefit of the doubt to that person instead of to Canadians who deserve to be protected.

[The Deputy Speaker, Bill Blaikie]

I am sorry, but we have reached the time for statements by members. There will be one minute and 50 seconds left to question the Minister of Public Safety when the House returns to the consideration of Bill C-3.

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.

[The Speaker, Peter Milliken]

When the House broke for question period, the hon. Minister of Public Safety had the floor for questions and comments as a consequence of his speech. There are two minutes remaining in the time allotted for questions and comments. I therefore call on the hon. member for York South—Weston for questions and comments.

[Alan Tonks, Liberal, York South—Weston, ON]

Mr. Speaker, I thank the minister for clarifying the difference between Criminal Code violations and the processes and the security certificate process. He also made it clear that the security certificate process does not relate to Canadians.

However, I have been asked by constituents to clarify with the minister with respect to the role of the special advocates. In the criminal process there is protection with respect to client-solicitor relationship. If during the process of certificate implications are made with respect to allegations against Canadians, is there the same degree of protection that exists under the Criminal Code and natural justice? Could the minister explain whether that similar client-solicitor relationship applies?

[Stockwell Day, Conservative, Minister of Public Safety]

Mr. Speaker, my colleague's question came up in the committee and it was as a matter of some concern.

A number of provisions are in place to protect the individual who is being detained from untoward situations that may arise in the course of the actions that would unfold. As a matter of fact, in the committee discussion it was agreed that there could be some things that would come up that would actually be unpredictable and that there needed to be something in place to allow for that.

One of the ways of addressing that is in clause 85.2(c), which is a catch-all provision that can be applied for and asked for by the special advocate himself or herself. There would also be provisions for the person being detained and I think, if in not all cases, in most cases they would have their own counsel. There would be provisions to ensure the person is protected from such an eventuality related to client-solicitor privilege.

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, the concern that the NDP and I as the critic have with this, and the reason for putting forward all of these amendments, is that we have considered this to be completely the wrong way to go about dealing with the issues of terrorism. We are as concerned as anyone else that this country is protected, that its citizens are safe and that terrorism has absolutely no place and no acknowledgement in our country.

I think most Canadians would consider safety to be some kind of balance between freedom and security. They expect security in the country in which they live and raise their children but also they have a certain expectation of freedom.

I am a bit puzzled, I have to say, by the motions today to sit until the bill has finished report stage and by the rush to get it through. I understand perfectly well the deadline of February 23, but that was a year ago. If we had come back in September when we were due to come back, we would have had an extra month to work on this. Instead, we have had nine weeks.

It seems to me rather inconsistent that a bill that is of such great importance, and, by the way, I think it is, is left to the last two months of the year, because it has to go to the Senate as well, which has been known since the date was established last February. It seems to me that unless there is some other motive, the action does not reflect the gravity of the issue the bill has presented.

From the beginning, we have always seen this as the wrong way to go about dealing with terrorism, espionage and organized crime, and let us be sure that we are talking about all three things. Although terrorism is the phrase that is used most frequently, this is about also espionage and organized crime.

As members can see, we believe that if one has come to Canada to commit a terrorist act one should be charged and punished. To consider an act of terrorism in any country, but speaking of our own country, is one of the worst things imaginable. We have seen those examples in other countries as well as countries to the south of us.

So why would we not put in place legislation that would allow punishment of people instead of sending them back to their country of origin, where they may very well wish to go, and where they can or may continue their activities? I think in many cases they do continue to engage in the planning of terrorist activities, again, perhaps toward Canada, and it may not be them but somebody else they have trained.

But to send them back with no repercussions whatsoever is not acceptable. I expect people to be punished for such an odious type of crime. I also, by the way, expect people to prove that the odious crime is in the process of being committed or that there is a demonstration of its planning.

I think we know that significant numbers of members in this House will publicly say they think this bill is flawed. Some will privately say they know this bill is flawed. We know that members of the legal community believe that this bill will not withstand, albeit its rewriting, a constitutional challenge again, and there will indeed be another constitutional challenge. I do not think we should mistake that at all.

The human rights issue within this bill is a concern for all Canadians, I would hope, because human rights are something that we hold dear. Standards, procedural fairness and due process are things we consider to be inherent in human rights.

The ability to fully answer and defend ourselves is a basic human right. That is not reflected at all in this piece of legislation, unless we say there is a level of human rights and we believe only certain people have human rights, but I do not think that is what most Canadians believe. I think they believe people have a right to know fully what they have been accused of and to be able to defend themselves against it.

The NDP believes, and many community organizations who made presentations to the public safety committee said the same thing, that the use of what we would call secret evidence is a grave threat to fundamental justice. This bill proposes that if a special advocate were to be put in place, the advocate could speak to the detainee and his or her counsel and then see the full file, but could not talk to the detainee again, or at least have any conversation about what is in the file, even if it might be helpful to the detainee.

We know it is a flawed system because there have been other circumstances where we have used information without the full advantage of having all of it. We have seen the kind of prosecution people have been put through.

The special advocate is being championed by this piece of legislation, but it does not explicitly give any kind of special powers to the special advocate to seek and obtain other government records that might be believed to be relevant. If the advocate reads in a file something that refers to another record that he or she thinks would be helpful, there is nothing that explicitly states the advocate has the right to see that information.

Certainly there are other models that people have suggested, such as the SIRC model, where there has been full disclosure of information that CSIS has available. That kind of process was used and was in place before the current process.

There also is a concern about how long people can be detained without any charge being laid at all. One individual has been in detention for seven years. Other individuals have been in detention for somewhat shorter lengths of time, but certainly not short lengths of time. There is nothing to protect them. Yes, detainees can have their cases reviewed on a regular basis, but that does not mean they cannot continue to be told no for some indefinite length of time.

They can be kept in prison-like settings that I think are built for two or three people, without any idea of why they are there, and without anybody presenting the charges to them. If we were to even consider that as a principle we would use anywhere else, Canadians would rise up in anger, as they should.

It is a basic premise. If we are charged with something or detained in jail, we have a right to know why. We have a right for our counsel to see the evidence and a right to defend ourselves. Under this piece of legislation, which we do believe is completely flawed in dealing with the issue of terrorism, which we believe should be criminally punished, we do not have that.

I look forward to other speakers.

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

Mr. Speaker, I am proud to have seconded the motions my colleague put forward this afternoon, which delete all the clauses of this legislation as a way of showing our fundamental disagreement with this security certificate process, as well as the fundamental flaws and the supposed fix that the government has provided for this legislation.

Earlier I was incredulous when I heard the Minister of Public Safety say that he believed the security certificate process was appropriate, even though its sole aim, the whole deal, was to send someone accused of some of the most serious crimes against our society, those of terrorism, security threats and espionage, out of the country. It did not matter if they were ever charged, convicted or punished for perpetrating those serious crimes. What is more is that the only thing this legislation and this process seek to do is to get them back to their country of origin, where there is no guarantee that they will be charged, convicted or tried for those very serious crimes either.

This seems to be a piece of legislation that seeks to avoid dealing with the most serious crimes in our society. Would the member comment on that? How does this legislation make Canada or Canadians safer? How could a Minister of Public Safety support that kind of legislation?

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, this will not make anybody safer. That is part of the issue. This is not going to make Canada safer.

On the minister saying earlier that releasing criminals across the country would not be considered acceptable, I agree with him. It would not, but I ask, please, for it to be proven that someone is a criminal. We cannot say that we are not going to release criminals across the country but also say that we cannot prove someone is a criminal, so we are just going to hold that person as long as we possibly can or send him or her back to be tortured or potentially to continue terrorist activities in his or her own country.

Not only will Canada not be safer, but as well, our justice system will not be made safer by this kind of legislation, which does not--I repeat does not--uphold the basic tenets of our justice system around the ability for full answer and defence.