Public Safety Committee on Dec. 6th, 2007

[The Chair, Conservative, Garry Breitkreuz]

Okay, is there any debate on this?

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Chair, I'd like to hear from the officials what that does with respect to the bill.

[The Chair, Conservative, Garry Breitkreuz]

Okay, who would like to comment to begin?

Mr. Dunbar.

[David Dunbar, General Counsel, Canada Border Services Agency]

As I understand the amendment, it would move the standard of proof for a finding of reasonableness in the certificate from the current standard to that of beyond a reasonable doubt in the criminal law. Is that correct? That would be a very significant shift in the law and one that would run against a great deal of established jurisprudence, and frankly, it would be unprecedented in an administrative law proceeding such as this.

I can direct you to a great deal of case law and law from commentators. For example, Mr. Waldman, whom you heard from earlier as a witness, in his text, Immigration Law and Practice, 2nd ed., states that for the finding of inadmissibility on security grounds, the standard of proof to be applied is the less-than-civil standard, i.e. reasonable grounds to believe.

For proving inadmissibility on a removal order, I can give you some language from the Supreme Court of Canada in its recent decision in Mugesera, in which the court, first of all, affirmed the court of appeal standard that the

“reasonable grounds to believe” standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities.

They confirmed that as the standard. Then they went on to say that imposing the standard in the Immigration Act--and they were referring to the old Immigration Act, paragraph 19(1)(j) in the previous act--in respect of war crimes and crimes against humanity.... This is the particular inadmissibility section in question:

...Parliament has made clear that these most serious crimes deserve extraordinary condemnation. As a result, no person will be admissible to Canada if there are reasonable grounds to believe that he or she has committed a crime against humanity, even if the crime is not made out on a higher standard of proof.

I raise these points of law to confirm, first, what the standard is, what the court and commentators on the law tell you the standard is currently, and second, that the Supreme Court has confirmed this, and this is the rationale they have given for it.

The motion at hand would, as I said before, be an extremely significant change and one, to be honest, that I couldn't personally recommend.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Ms. Priddy, do you have a comment?

[Penny Priddy, NDP, Surrey North, BC]

While I am familiar with what you are quoting from, a number of the witnesses who appeared before us made that very point quite clearly. They felt that since we did go to the trouble and time of hearing from them, they felt that the standard to which they were being held would be clarified by this.

I think Mr. Ménard's amendment is supported by many of the witnesses we heard from.

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

Okay. You've heard the comments from Mr. Dunbar and Ms. Priddy. Is there anybody else?

We'll go to Mr. Ménard.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I am well aware that I am proposing a radical change to the law as it applies at present. I am doing this precisely because of the consequences of the decision that is made by the judge.

I believe that the decision of the Supreme Court holding the law to be unconstitutional, unless serious corrections are made to it, is based precisely on the extraordinary consequences of the decision the judge is making here. Reread that decision; I have.

First, there is only one kind of punishment in Canada. There can be loss of privileges or fines, but essentially, the only punishment there is, is imprisonment. As well, the decision the judge is making here can mean imprisonment for an indeterminate period. It is precisely because that consequence is very serious and because it is having to be made based on unusual evidence that would not be applied that the judges are asking for a judicial process to be followed and for section 7 of the Constitution to be applied.

The Court has conceded that the decision can be based on evidence presented, on reports by witnesses who are not cross-examined, on evidence that the person concerned is not entirely aware of, and so on. Because of all that, changes have to be made.

However, at the end of the line, it can be said that in Canada people are not imprisoned without someone being satisfied that they were guilty beyond a reasonable doubt. The only people who are, in fact, are people who have not been granted bail. But the point is that those people are imprisoned for a limited time, and the law does provide measures so that people who have not been granted bail can be tried more speedily, so that a decision beyond a reasonable doubt can be made.

I think that, quite the contrary, what I am proposing here is not a radical change in terms of the use of prison as punishment. I think I have shown, in the course of the committee's proceedings, that I was perfectly aware of the risks involved in fighting terrorism and the measures that have to be taken. Those measures have to fit the way things are, like using reports and information that has to be kept secret for various reasons: because it endangers the lives of other people who are undercover agents working to protect us, because it discloses methods we use to fight terrorism, or because we have to get it from our allies who require that we keep it confidential, and so on.

We are already making a lot of concessions, but now we have come to the most serious decision there is: incarceration for an indeterminate period. Who is ever incarcerated for an indeterminate period in Canada?

Some people are sentenced to imprisonment for life. There again, that does not mean incarceration until death, because there are reviews. There are also dangerous offenders. Dangerous offenders have committed very serious offences and have been found guilty beyond a reasonable doubt.

The decision to opt for the most severe punishment, in my opinion, has to be made on the basis of certainty. I think that it is even more important than the creation of the role of special advocate and the fact that the special advocate is being given access to secret information.

In a case where a person is left at large, we have to be aware that while there are serious but secret reasons to believe that the person is a danger to the security of Canada, there is a chance that the person is involved in organized crime, but no certainty on that question can be reached and charges laid. What do we do in such cases? How does society defend itself against people whom the police know to be directing organized crime, to have drug trafficking rings and, even more seriously, an internal police system?

When I was the Minister of Public Security of Quebec, I vigorously prosecuted members of organized crime. Those people were capable of deciding, around a table, who would be killed, and by whom. What did we do in such cases to protect society? We kept them under surveillance. We never stopped our surveillance.

Nevertheless, I am a realist. When a security certificate is issued against someone, supposedly because they are thought to be a sleeper cell, I am satisfied that in the vast majority of cases you have interrupted any prosecution, any conspiracy against security. The person is burned, most of the time, but if they are not completely burned, they have to be kept under surveillance, and it is not impossible to do that. I am satisfied, given the money being spent at present to detain these people for long periods of time, that the cost of surveillance is about the same as the procedures we are using.

We are one of the most civilized countries on the planet and we want to continue to be seen that way. That is why we have constructed a complicated system to deal with cases when we are informed that a person presents a danger in terms of terrorism, a danger that we are entitled to defend ourselves against. As I often say, in many other countries arbitrary decisions are made by ministers based on secret information. We have opted for a judicial process. It seems to me that we have to take that process all the way. The harsher the sentence, the more complicated the procedure and the more precautions we have to take.

The government argues as if the issue were not incarceration, but deportation. We are well aware that people who resist deportation do so, in most cases, because they fear death or torture or they are afraid they will disappear. As I have often said, that prison has three walls, and in some cases the fourth wall is a precipice. When this is the issue, we have to protect people. The reasoning of the Supreme Court in Charkaoui, for example, is that in cases where the consequences of the decision are so serious, we have to do the impossible to ensure that the procedure is as close as possible to a criminal proceeding. In my view, we have to take that reasoning to its logical conclusion, and because the consequence can be as serious as indefinite incarceration, we have to demand satisfaction to the highest level, the same as we required when we used to hang people and as we still require in the case of people sentenced to life.

I note that the dangerous offenders who are given indeterminate sentences have been found guilty beyond a reasonable doubt at least three times.

That is why the criterion for the judge to make a decision with such serious consequences for the person concerned has to be satisfaction to a certainty.

[The Chair, Conservative, Garry Breitkreuz]

Mr. Cullen, please.

[Roy Cullen, Liberal, Etobicoke North, ON]

Thank you, Mr. Chairman.

I understand what Mr. Ménard is trying to accomplish here, I think. With respect, I am concerned that first of all we need to understand that this is not necessarily putting someone in jail. This is determining whether or not a person is inadmissible to Canada on the grounds of security and violating human rights or whatever.

The next step would be that if they are a threat to the public security of Canada, they would be detained, but the person is always able to leave. We know, as a practical matter, in some cases that can be difficult. I'm not a lawyer, but this message might be confusing. We know that in this process--and we're working to try to improve the process--the burden of proof is not the same as it would be in a criminal court of law, by virtue of the very process. It's not that type of evidence, and so if a judge had to review the matters before him or her and use that same criterion, this could grind to a halt very quickly, it seems to me. It would be a confusing signal, and I don't think it would be the appropriate signal.

I don't personally think it is something we should support.

[The Chair, Conservative, Garry Breitkreuz]

Next on my list is Ms. Brown.

[Bonnie Brown, Liberal, Oakville, ON]

Thank you very much.

I was interested in the comments of Mr. Dunbar. He made his points very well.

I'm going to ask him if there is any other administrative law in which the subject of that law could end up in jail for as long as seven years, perhaps in solitary confinement or isolation or even under house arrest of an indeterminate length.

[David Dunbar]

There are certainly many administrative law schemes that are supported by criminal law sanctions, but that's different from what you're asking me.

[Bonnie Brown, Liberal, Oakville, ON]

Could you give me an example of even one of those?

[David Dunbar]

If you absolutely refuse to file your taxes, eventually there is a criminal offence attached to that.

[Bonnie Brown, Liberal, Oakville, ON]

Would you not have to go through the criminal court?

[David Dunbar]

Exactly, which is why I'm saying it's a different matter. There are also offences attached to the Immigration Act, but on preventive detention, or detention for the purpose of dealing with public danger.... Let me be specific in my language here. I'm having difficulty on the spot thinking of something.

I would propose to come back, or if I can think of something in the interim, I will answer your question. At the moment I'm finding I'm somewhat on the spot and unable to think of something.

[Bonnie Brown, Liberal, Oakville, ON]

I propose that the difficulty we're having, Mr. Chair and Mr. Ménard, is the fact that we have an administrative law that ends up with criminal law sanctions without the criminal law process, and this is something that has been developed in the face of a modern phenomenon. I know the Supreme Court has ruled that these certificates are valid, etc.; however, I think the challenge to legislators is not the same challenge as to the Supreme Court.

A few years ago we passed this law, and it was up to the court to interpret what we meant. I was here when we passed this law, and at the time I wasn't 100% sure that this was such a good thing or that it was very carefully thought through and that every clause of it synthesized perfectly with every other clause. In sitting through these hearings, I'm seeing that this is the main problem. We have an administrative law that ends up with criminal law sanctions without the person involved going through the criminal law process.

We have a chance to improve it here, and Mr. Ménard, in all his experience, is making a suggestion. It seems to me that the challenge for legislators is to be creative about how they build laws. They revise them, they amend them, they reform them over time, and they try to make them better. It seems to me that we have in front of us what was essentially a hybrid between two completely different kinds of law and that Mr. Ménard is coming up with a solution to cause some synthesis to be built in. I thank him for the thinking he has done and the explanation he has made, and I will be supporting his amendment.

Thank you, Mr. Chair.

[The Chair, Conservative, Garry Breitkreuz]

Mr. Therrien, you indicated you have a comment as well.

[Daniel Therrien]

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.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Are there any further comments?

Okay, if there's going to be more discussion, I first of all have an administrative detail that I have to take care of here. I would prefer to do this in camera, but it takes too long. We're going to suspend for the votes, and then we're going to come back here. I'd like to know if you'd rather have pizza or something else from the Parliamentary Restaurant.

[Bonnie Brown, Liberal, Oakville, ON]

We're not coming back here after the votes. It could be 30--

[The Chair, Conservative, Garry Breitkreuz]

I'll just make it clear. We're suspending for the votes, and then we're going to reconvene the meeting to finish this. It doesn't look at this point as though we're going to finish. That's why I'm asking you what would you prefer to have--something from the Parliamentary Restaurant or pizza? We have to order from the Parliamentary Restaurant in the next two or three minutes.

[Bonnie Brown, Liberal, Oakville, ON]

On a point of order, Mr. Chair, this meeting is called from 3:30 to 5:30. I'm told the votes could go as late as eight o'clock tonight. You can't arbitrarily suggest that we have to come back here at eight o'clock on a Thursday night when all of us have flights booked, and with no notice ahead of time. It is not the role of the chair to arbitrarily lay down that this is what's going to happen without consultation with the rest of the committee.

[The Chair, Conservative, Garry Breitkreuz]

Well, the committee decided they were going to get through this today, and it appears that's not going to be the case.