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.