I would like to make a few points.
First, there's no question that we're dealing with a very special administrative process with grave consequences for individuals. That cannot be denied. That said, we are dealing with a removals process, and in that process to remove on the basis of the civil standard, as opposed to the criminal standard, is a practice that has been recognized by the Supreme Court in earlier cases. That does not prevent you as parliamentarians, of course, from making a different choice. I just want to reiterate that the Supreme Court has found the current standard to be constitutionally valid.
Another point I'd like to make is that I know of no other country that deals with the issue you're confronted with by raising the burden of proof to a criminal law standard of proof. We have other countries--the U.S., the U.K., and others--that are dealing with similar issues, and in none of these countries was the solution to raise the burden of proof to the criminal standard. They're all using both the criminal process, based on the criminal law standard of proof beyond reasonable doubt, and the removals process on the lower standard. So if Canadian legislation were to be amended, I think Canada would be alone in that camp.
Mr. Ménard talked about the government's position that the issue is removal, not detention. Clearly the consequence is lengthy detention in some cases where the individuals concerned make allegations of torture.
I would like to make a final point, that in the Charkaoui case, the Court recognized the importance of the consequences for the individual and ruled that the procedure had to be amended. This is what led to the recommendation of having a special advocate.
The Court also ruled on the rules that apply to detention. On that point, the Court said that because detention reviews are held on a regular and frequent basis, it is constitutionally acceptable to detain a person for a long period while awaiting removal, based essentially on the criteria in the Immigration and Refugee Protection Act.
What concerns Mr. Ménard, and perhaps other members of the committee, is the criteria that apply to detention. The Supreme Court essentially found the current system to be constitutional, subject to the distinction that was formerly made between foreign citizens and permanent residents, and the frequency of reviews. But on the substance, on the question of the criteria that apply to detention, the Supreme Court found nothing to restate.