Citizenship and Immigration Committee on Oct. 26th, 2006

[The Chair, Conservative, Norman Doyle]

Our meeting will now come to order.

For the benefit of our committee members, we'll go until 10:40. Then, of course, we have to deal with the third report of the subcommittee. I believe all members have a copy of the third report, from our subcommittee meeting that was held on Tuesday of this week.

On your behalf, I have the pleasure of welcoming representatives from three different bodies today. We have witnesses from the Canada Border Services Agency, representatives from the Department of Justice, and witnesses from Citizenship and Immigration as well. The topic today is detention centres and security certificates.

I will pass it over to you, Daniel, to begin. Of course, you have a reasonable amount of time—10 or 15 minutes—to do an opening statement, and then we will go to questions from committee members.

Mr. Therrien, welcome.

[Daniel Therrien, Senior General Counsel, Office of the Assistant Deputy Attorney General, Department of Justice]

Thank you, Mr. Chairman.

First let me introduce my colleagues: Kimber Johnston, Director General, Policy and Program Development Directorate, Canada Border Services Agency; Susan Kramer, Director, Inland Enforcement, also for the Agency; and Anna-Mae Grigg, Director, Litigation Management, Citizenship and Immigration Canada.

We sent you a presentation. Do members have the presentation in question, the overview? Yes? I will obviously not read it all. Rather than speaking from notes, I will take my inspiration from that presentation this morning.

This presentation will deal with matters which should interest the committee, particularly the security certificate process, the courts’ assessment of this process to date, and the roles and duties of the two organizations with primary responsibility for the process: the Canada Border Services Agency on one hand and Citizenship and Immigration Canada on the other. Finally, I will briefly deal with current detention conditions in Kingston.

I will first speak about the process of security certificates. What are they, exactly? They're a removal tool, an exceptional removal tool. There are a number of procedures in the Immigration Act to remove foreign nationals who are inadmissible. The peculiarity of this particular tool of certificates is that it allows the decision on removal to be made on the basis of a record that is not fully disclosed to the individual. That is their exceptional nature; there is no question that it is an exceptional procedure.

That's the security certificate process. Its goal, then, is to serve to remove individuals who are inadmissible to Canada. Its primary goal is not to detain people, although accessorily, during the removal proceedings and while the person has not been removed from Canada, the act provides for the detention or conditional release of individuals to prevent the risk that they represent during the removal proceedings.

Who exactly may be subject to these certificates? It is a specific number of categories of inadmissible people; it is not all inadmissible people. The people who are subject to them are people inadmissible on national security grounds, people who are inadmissible on serious or organized criminality grounds, or people who are inadmissible for violating human or international human rights, which concretely translates into war criminals.

As I said, the process is exceptional, and because it is exceptional, there are safeguards to this process. The first one is that although normal removal proceedings are initiated by officials--by immigration officers--in this case, because of the exceptional nature of the proceedings, the certificate requires the approval of two ministers of the Crown, the Minister of Citizenship and Immigration and the Minister of Public Safety. Because it is exceptional, the tool has been used very infrequently, sparingly, with an eye to focusing on people who are the most dangerous threat to national security.

The proof of that, since the measure has been in place since 1978 and predates 2001 by a lot, is that since 1991, 27 certificates have been issued. On average, it's fewer than two certificates per year. Compare that to the fact that on average Canada removes approximately 10,000 people a year on removal proceedings generally. It is two a year based on certificates and 10,000 based on the normal removal proceedings. Another significant number, we think, is that since September 2001 only five persons have been the subjects of certificates.

One of the features of the process is detention pending removal. As a practical matter, all of the persons who are currently the subjects of certificates were detained when the certificates were issued. Some have been released since, but the practical consequence of the issuance of the certificate is that the person is detained.

The law makes certain distinctions that I will explain briefly. Permanent residents who are the subjects of certificates are entitled to a detention review before the Federal Court every six months during the removal proceedings. It's under the detention reviews that Mr. Charkaoui, for instance, was released a number of years ago.

Foreign nationals are automatically detained by law during the removal process, or at least until the certificate is found reasonable, yet the Federal Court has decided, in the case of Jaballah, that on charter grounds there should be a detention review for foreign nationals during the process. Mr. Jaballah is currently detained but has applied for release. He is currently in the midst of a detention review because of the finding of the court that despite the statute, foreign nationals should be entitled to detention reviews.

After the certificate has been found reasonable by the Federal Court, and I will explain that process in second, a different detention regime applies. The court has found that the person is indeed inadmissible; it's no longer an allegation by the government. The government is therefore now in a situation of treating the person as removable, the court having accepted the inadmissibility of the person.

At that time, the detention regime provides that removal is the objective. If the government has been unable to remove the person within 120 days of the Federal Court decision confirming the reasonableness of the certificate, the person is then entitled to a detention review. Two persons were released under that regime: Mr. Suresh, and Mr. Harkat more recently.

Concerning the review of the certificate itself, as I said, the certificate is an allegation by two ministers that the individual is inadmissible on stated grounds, particularly national security grounds. The main safeguard of the process is that the Federal Court reviews this determination by the ministers, and the court has all of the information, including the classified information upon which the government relies.

During that process, the individual who is the subject of the certificate does not see all of the evidence but receives a summary, which is mandated by law, of the information. That summary is actually fairly extensive, so they know in some detail the allegations against them. What they do not know are three things: information that would disclose the sources of information, particularly when the safety of the source would be at risk; information that would reveal investigative techniques; and information that was provided in confidence by foreign governments. The individual sees everything else.

As I said, the court sees all of the evidence. An important safeguard of the process is that the court is there to rigorously test the evidence. You will have heard concerns that the individual at first does not see all of the evidence, and counsel for the individual does not see all of the evidence, so who tests the government's case? The court tests the government's case rigorously, and when you read judgments confirming the reasonableness of certificates, you will see that the court is extremely rigorous in that exercise. That's the review of the certificate per se.

A related issue or procedure is the pre-removal risk assessment. I will turn in a second to the question of removal to torture.

The pre-removal risk assessment serves essentially to determine whether the person is indeed at risk of torture. Mechanically, what does that do? There is an assessment by the CIC minister, or a delegate of that minister, as to whether the person is indeed at risk of torture. That assessment, made administratively, is then reviewed by the court.

So the Federal Court has two roles in looking at certificates when risk of torture is alleged. They determine whether the certificate is reasonable, i.e., whether the person inadmissible to Canada. The second role is to look at the lawfulness of the pre-removal risk assessment.

What have the courts said up to now about the security certificate procedure? We are all aware that three cases were argued before the Supreme Court in June. The Court must render a judgment on whether the procedure is reasonable, fair or just. Up to now, Canadian case law has fully approved the constitutional validity of security certificates. Various aspects of these certificates had been challenged in court. Since this procedure was created, both the Federal Court and the Federal Court of Appeal have upheld its constitutionality. However, the Supreme Court must now consider these cases and will render its judgment shortly I suppose.

As far as non-disclosure of the case file to the person against whom the certificate has been issued is concerned, the Federal Court decided that, in spite of this exceptional aspect, this procedure is constitutional. The two reasons invoked, which I have already explained, are the following. On one hand, the summary disclosed to the person is sufficiently detailed for him or her to know what allegations are being made. On the other hand, the role played by the Court, which is to ensure the legality of the procedure, is another guarantee mentioned by the Court in concluding that the procedure is constitutional.

The matter of the amicus curiae, that is to say, a friend of the court, is frequently invoked when procedural fairness is discussed. What have the courts said on this point up to now? The Federal Court stated that a friend of the court, or an amicus curiae, is not required to render the procedure constitutional. In this case as well, the issue is before the Supreme Court, and we are waiting for its judgment.

What have the courts said about the matter of detention? Once again, the Federal Court and the Federal Court of Appeal have held that the provisions concerning detention were constitutional, particularly as far as the cases of Ahani and Charkaoui are concerned. The indefinite nature of the detention was invoked on several occasions. The Federal Court of Appeal ruled that, as long as it was possible for a person to be removed from the country, detention was not indeterminate and was therefore constitutional. Some United Nations committees have examined the matter of whether such detention was reasonable. The United Nations Human Rights Commission also decided that these provisions comply with international law.

In spite of the fact that these judgments agree with the government’s position, it must be noted that the Court is obviously concerned by the duration of the detention, which undoubtedly explains why certain persons subject to a certificate have been released.

I will try to deal as briefly as possible with the matter of removal in cases in which there is a serious risk of torture. This is a key issue as far as human rights are concerned, and it explains at least partially the extended time limits granted in cases of removal of persons subject to certificates.

First, let’s talk about the law. The Immigration and Refugee Protection Act generally grants persons protection against removal when they face torture. However, in cases of persons who are inadmissible, for example, on grounds of national security, the law provides that it is possible to deport a person who is in serious danger of being tortured if the decision-maker, in this case, the Minister of Citizenship and Immigration or his delegate, is of the opinion that the national security interests of the state are more important than the possibility of the person being tortured once deported. This is provided for by law. In the Suresh case, in 2002, the Supreme Court had to consider the constitutionality of these provisions.

The Supreme Court set out a certain number of principles. First of all, removal to face torture is contrary to international law, in particular the Convention Against Torture, whether or not the person is a dangerous criminal or a terrorist. Protection under the Convention Against Torture is said to be absolute. However, the Court did not stop at that. It had to rule on the constitutionality of this legislation on the basis of Canadian law, therefore, on the basis of the Charter.

As far as the Charter is concerned, the Court stated that, generally speaking, removal to face torture will also be unconstitutional. Normally, a state must find another way of dealing with the risk a person may represent rather than having him or her deported to face torture. However, it is possible that there may be exceptional circumstances in which, after weighing the interests of the state and the individual, it may be constitutional to remove someone even if he or she is at risk of being tortured.

Since the Suresh case, delegates of the Minister of Immigration must therefore weigh these interests when conducting pre-removal risk assessments. They must determine whether that person is in danger of being tortured and, if that is the case, if this risk is serious. They must also determine if, because of national security considerations, there are exceptional circumstances that would, within the meaning of the Suresh case, authorize Canada to remove that person to face torture. A certain number of administrative decisions have been rendered to that effect. A delegate of the Minister of CIC may thus consider it appropriate to remove a person to his or her country of origin even if that person runs the risk of being tortured.

With this procedure, part of the delay is attributable to the judicial review of these decisions. Up to now-there was the recent Jaballah case-several decisions have been set aside for procedural reasons. The delays are explained by the fact that an administrative decision is rendered first of all, followed by an application for judicial review and then another administrative decision. The person remains in detention all this time, which is worrying. This is probably what convinced the Court to release three out of six persons who are presently the subject of certificates, even though the Court was of the opinion those persons are dangerous. In five out of six cases, the Court agreed with the government and ruled that the certificates were reasonable and that the person was inadmissible on grounds of national security. The sixth case is still pending before the Court. As far as the decisions concerning the six current cases are concerned, the Court agrees that the persons are inadmissible.

An important ruling was made on this point on October 15, I believe, in the Jaballah case. The Federal Court Trial Division decided that, in spite of the government’s claims, there were no exceptional circumstances, and therefore it would be unconstitutional to remove Mr. Jaballah to Egypt. This is the first time something like this has happened. The judgment is recent, and the government is currently studying the possibility of appealing it.

I have explained the process. I will now briefly explain the respective roles and responsibilities of the Department of Public Safety and the Department of Citizenship and Immigration. As I have explained, both ministers are responsible for signing the certificate. Therefore, they must be satisfied that the person is inadmissible for the reasons already mentioned. The ministers may also request that the hearing in Federal Court be held in the absence of the opposing party. This is still done.

As I have already mentioned, the Minister of Citizenship and Immigration is responsible for conducting the pre-removal risk assessments, and therefore the assessment of the risk of torture. The Minister of Public Safety is responsible for the issue of warrants of arrest for certain persons, as well as for their detention and removal. The Minister is also responsible for granting release to persons who wish to voluntarily leave Canada for their country of origin.

I'll say a few words about the current detention facilities and questions of release and detentions. As you know, since April 2006 the persons still detained under certificates are detained in a federal facility in Kingston, Ontario. Essentially this facility was built following the concerns raised by the Federal Court about the conditions of confinement in the Ontario correctional facilities, which were used until that point. My colleague Susan Kramer will be able to answer questions that you probably will have about how the regime is more favourable or not in Kingston and in provincial jails.

Let me say generally that the federal facility in Kingston can accommodate a maximum of six people, and the goal is to better meet the needs of the detainees and address certain issues that the court had previously raised. Among other advantages are contact visits with family, access to telephone and video conferencing, religious services and observances, and exercise facilities for several days per day, where in the provincial facility this was limited to 20 minutes per day, because the detainees were in solitary confinement in the provincial facilities, but they're not in the Kingston facility. Of course the very fact of solitary confinement itself was an issue in the Ontario facilities; it no longer is. They were in solitary confinement previously; now they can associate with each other.

As a last word, out of the six people who were the subject of certificates, three remain detained and three were released on conditions. The conditions that were imposed by the Federal Court vary among the three individuals in question, but in the most rigorous case, it essentially amounts to house arrest. The individual has to remain home, can leave only with permission, and there's electronic monitoring that is part of the release order. These are people who are released under exceptionally strict criteria.

Thank you.

[The Chair, Conservative, Norman Doyle]

Thank you.

We will now go to questioning.

By the way, the detention facility would be run by CBSA, would it not?

[Daniel Therrien]

Yes.

[The Chair, Conservative, Norman Doyle]

We will go to our seven-minute round of questioning and start with Andrew.

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

Thank you very much, Mr. Chair.

The issue of security certificates has received great debate in this committee. If you look at the citizenship report recommendations in the previous Parliament, there was a very strong aversion to the security certificate process being instituted against citizens.

We had before us one witness--and it's in the report--Justice Roger Salhany, a retired superior court justice. He essentially stated that the Canadian judicial system is not set up to hold inquisitions, as they might do under the French system, where you have a justice who does criminal investigations.

The point is that it's fairly simple and it's very broad. You have someone accused of a crime. Reasonableness is a very low threshold. But if you look at a couple of cases as to how our justice system operates, we have Paul Bernardo and Clifford Olson—very dangerous individuals who will spend the rest of their lives in jail. Of course, you also have people like Guy Paul Morin, Donald Marshall, Steven Truscott—a whole list of people—wrongfully convicted.

What our justice system does, with all the safeguards, with the appeals, with “beyond a reasonable doubt”, is try to find a balance. I point that out because, even if you have all that, you have many wrongful convictions, and many people in Canada have been hanged. Of course, there are cases where they're still trying to prove innocence many years after the cases were dealt with. We have the case of the guide in Quebec who was wrongfully executed, whose family is just starting to push for having the gentleman's name cleared.

I throw that out because Justice Salhany is a very good justice, who has written many books that are used in courts, and maybe in law schools. I'm sure Ed probably took courses from him and used the books on evidence.

But this really is what's at issue here. We have a terrible situation right now, because what you really have is the crown prosecutor and the police giving evidence before a justice in camera, and there's no test of that evidence—no test of that evidence. There's no representation from the accused. It's not good enough to get a summary of what the reasons might be for issuing the certificate. The fact of the matter is there's no testing of evidence that's given to the justice.

I would submit to the committee that what happened with the Arar case, where the RCMP misled the Americans to have a Canadian citizen taken to torture in Syria and, when the RCMP had information that this was wrong, withheld that information.... The goodwill that would be required for this kind of system to work is just not there.

I would even submit to you that what happens when you undercut the judicial system we have, which has a pretty fine balance, is that you tend to corrupt the system itself. We always have to be careful that doesn't happen.

Now, what Justice Salhany suggested needs to be done, and I think the Supreme Court is dealing with this issue right now and that we can expect a judgment sometime this fall—Meili and I were observers for some of the hearings at the Supreme Court—is to provide a lawyer who's going to—

[The Chair, Conservative, Norman Doyle]

You have two minutes, so won't you provide a question?

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

—be able to testify. It's not necessarily the defendant's lawyer, but it could be somebody appointed by the court.

One of the things that came up there as well is that in England, which had a similar process, it was struck down by the European Court of Human Rights. They have in place one of these systems.

My question is this. Given all the problems that we have had with the security certificates, given the history of what happened to Mr. Arar and others we don't know about, why have we not put in place somebody who could protect the integrity of the system by testing the evidence that's put before the judge and enabling the judge to make a decision in the manner that he was trained to? That's my question. Why haven't we done that? Why are we waiting for the Supreme Court to force the government to do it?

[The Chair, Conservative, Norman Doyle]

Fifty seconds.

[Daniel Therrien]

Actually, you're asking why has the law not been changed, and I'm not sure you're asking the right person. What I can say as an official is that the system we have has so far, subject to what the Supreme Court will tell us soon, been found to be fair, constitutional, not perfect, exceptional, and there's no question about that, but we're dealing with a very difficult dilemma of how to deal with individuals who are a security threat, who in five out of six cases, again, have been determined by the Federal Court to be a security threat and who should be removed from Canada--because that's the normal policy of the state, to remove persons who are security threats.

The immigration tool is a legitimate tool. The process is obviously the subject of very legitimate debate--but if I may take more than fifty seconds--I would be inclined to follow with why immigration law versus criminal law, which would address the premise of the member's question, which I think is important to answer, with your permission.

[The Chair, Conservative, Norman Doyle]

Yes. We'll give you a minute or so before we go to Madam Faille.

[Daniel Therrien]

Mr. Telegdi's question raises a number of important questions, the independence of the judiciary and the question of fairness and special advocates, but at the heart of it is why immigration law versus criminal law, criminal law having fuller safeguards.

So we have people who the government claims, and the court accepts, are security threats. Should we not prosecute them? Canada is not alone in facing the problem that we're facing with these individuals. No country, no liberal country, no democratic country has found a way to effectively prosecute people charged with terrorism when the nature of the case is that a part of the evidence is secret evidence that cannot be disclosed to the individual, so it is a dilemma that all western countries face and no country has solved that problem.

In Canada, in the context of the Air India file, Mr. Rae looked at this question and issued a report about a year ago, which led the current government to ask Mr. Justice Major, in the context of the Air India inquiry, to look at this question and try to give advice to the government on how best to use intelligence information as evidence in a criminal trial in a way that protects national security interests and provides as much fairness to the accused as possible. This is a very difficult issue, not solved by anyone, and I think the government will look forward very much to the recommendations of Mr. Justice Major.

[The Chair, Conservative, Norman Doyle]

I would ask committee members to manage their time a little better in their preambles so the witnesses can have a reasonable amount of time to reply. It is 9:40 and we only have about an hour left. All members need to be given an opportunity.

Madam Faille.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Thank you, Mr. Chairman.

I appreciate your presentation. However, every time a witness makes a presentation, he or she speaks about processes and systems. Several persons and departments intervene in these processes and systems, and all seem to have in mind removal at all costs.

On the one hand, lawyers invoke procedure, the law or the system; on the other hand, CSIS submits evidence, but the person concerned is not allowed to see this evidence. As far as CIC is concerned, it invokes the pre-removal risk assessment, or PRRA. Considering that everyone seems to refer to the PRRA, I would not want to be in the shoes of the public servant who conducts this assessment.

In addition, the recourses of the persons under suspicion are very restricted in connection with the decisions that Citizenship and Immigration makes about them. Have you ever had doubts about decisions made by PRRA officers? Everything depends on them and CSIS. Do you blindly accept the decisions made by the PRRA officers?

After the Maher Arar case, you will understand that the committee is concerned about the process. When persons are locked up for long periods, the time required to collect the evidence is invoked. During this process, do you question the quality of the information obtained? To what extent is it reliable? Are your decisions based on suspicions? This is what happened in the Maher Arar case.

I will have other questions to ask later.

[Daniel Therrien]

The PRRA officers are front-line officers. They conduct a preliminary assessment and are experts in risk assessment. Another person then decides if that person is a security risk. The person who makes the final decision is a senior official, a delegate of the Minister of Citizenship and Immigration. His or her role involves reviewing the assessment made by the PRRA officer. Therefore, on the one hand, there is an administrative assessment by a senior official; on the other hand, the Federal Court will review the final assessment made by the Minister’s delegate.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

In the Jallabah case, you say that you will appeal the decision.

[Daniel Therrien]

We are examining the possibility of appealing the decision.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

I understand. You are doubtlessly not in a position to state the grounds for appealing the decision or not, isn’t that true?

[Daniel Therrien]

That would be premature.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Yes, but there is still an intention to appeal?

[Daniel Therrien]

The matter is being studied.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Alright.

Since the implementation of security certificates, how many have been declared invalid and for what reasons?

[Daniel Therrien]

Three certificates have been invalidated. I have not looked at the details of these decisions, but in general they were invalidated because the Court was of the opinion there was insufficient evidence to conclude the person was inadmissible. These decisions were rendered on the merits.

[Meili Faille, Bloc, Vaudreuil—Soulanges, QC]

Alright. Since then, the system has become a bit more sophisticated. Was the pre-removal risk assessment process applied after these decisions, or did it already exist?

[Daniel Therrien]

The pre-removal risk assessment process was applied subsequently to these decisions, but I do not see any connection. The Court set aside the certificate strictly because of inadmissibility, while the PRRA deals with the risk for the person in a distinct manner.