Public Safety Committee on Dec. 6th, 2007

[The Chair, Conservative, Garry Breitkreuz]

I'd like to bring this meeting to order. It's the Standing Committee on Public Safety and National Security, meeting number 10.

We're continuing with 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.

I would like to note that we have some people here from the Department of Public Safety and Emergency Preparedness to give us advice. Welcome to Lynda Clairmont, associate assistant deputy minister, emergency management and national security; Edith Dussault, director of the operational policy section, national security policy directorate; and Warren Woods, senior policy analyst, operational policy section, national security policy directorate. From the Canada Border Services Agency we have David Dunbar, the general counsel. From the Department of Justice we have Daniel Therrien, acting assistant deputy attorney general for the citizenship, immigration and public safety portfolio.

Welcome to all of you. We will depend on you for advice from time to time throughout these proceedings, I'm sure.

Today we're going through the clause-by-clause consideration of Bill C-3, and I think without any further ado we'll go into it. We have quite a number of amendments and we've been trying to make sure they're all dealt with in the correct order, so I hope you will speak up when your amendment comes.

Mr. Ménard, before we begin, you had indicated to us here that you wanted to introduce something. You may go ahead and introduce what I believe is your first amendment. It's a bit unusual, and I don't know if anyone's mentioned to you that it's probably inadmissible because of its form.

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

The first amendment reads as follows:

That Bill C-3 be amended by replacing "défenseur" with "avocat spécial" in the French version, with such modifications as the circumstances require.

I am introducing that amendment because the issue is the title and in the title, "special advocate" is translated as "défenseur". A number of witnesses have told us that this was not a proper translation. As well, and this is my opinion, in fact, it may be misleading. There are provisions in the bill that specify that the relationship between the special advocate and the person concerned is not a solicitor-client relationship.

As the legislative drafter who drafted the amendment told us, by opting for a general provision of this type, we avoid making 37 amendments to the bill. In fact, there are 36 provisions of the bill with the term "special advocate" in English and "défenseur" in French. Counting the title, 37 occurrences. Someone has counted them. Does everyone agree on this?

[The Chair, Conservative, Garry Breitkreuz]

I was not clear that you were just going to do it in the title, but it could be problematic if that's....

We'll ask Joann to give a comment on this, please.

[Joann Garbig, Procedural Clerk]

If I understand correctly, this is to replace the word "défenseur" with "avocat spécial" everywhere the term appears in the bill.

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

That's right.

[Joann Garbig]

As I told the Chair, this is not the kind of language we see every day. Ordinarily, amendments are drafted in relation to a specific clause and the lines that are to be amended in the clause in question. I do not want to say that the committee cannot approve a change like this, but it has to be understood that someone outside the committee will have to be given the authority to make those changes.

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

If you were before a court as a judge and you saw that this amendment had been passed, what would you decide? Would you not understand that Parliament intended to replace the word "défenseur" with "avocat spécial" everywhere in the bill? I know that in Ottawa people always choose the most complicated way of doing things, but it seems to me that any intelligent person is going to understand that the replacement has to be made.

As well, given that we are living in a modern world, you must have a computer, and you therefore have access to the "find" function, and the "find and replace" function. Then you have to check the information you give the computer.

[The Chair, Conservative, Garry Breitkreuz]

You're really putting me on the spot, Monsieur Ménard. I think I will have to rule it inadmissible at this point because it should have pointed out each individual part. And as you said, you have a computer too, and that shouldn't have been that difficult to do. But at this point, we're now going to be asking somebody from outside this committee to do it, and I simply think that's not going to work.

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

That's fine, but I want to change the title. Are we going to start or end with the title?

[The Chair, Conservative, Garry Breitkreuz]

The title is the last thing we'll deal with. So I suppose if at that point you wish to bring it up again, we can. But it is going to create problems and I don't think it will change much in the next hour or two.

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

The method used for drafting federal legislation has always impressed me. We must end with the beginning. There we are.

[The Chair, Conservative, Garry Breitkreuz]

Mr. Dosanjh.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

I recognize that it would be a lot easier and very specific for us to approve the amendments if they were all drafted and every word was changed, every défenseur was changed to avocat spécial, but logically, I see nothing wrong, because if you change the word from défenseur to avocat spécial, nothing else, not even a comma, is going to have to be changed in the whole legislation.

So in a sense, you could actually tell somebody to shut their eyes and just do it, and it would be done. I think we should take the liberty at this committee to say we delegate the clerk of the committee to have that change made.

Obviously it is important to him, and the way he's explained it to us, you would agree that it's important, because défenseur in French has a distinct meaning and this individual avocat spécial in particular is no defender. He is a special advocate but he is not an absolute defender of that detainee or that person.

So in a sense, I think it's logical to do it.

[The Chair, Conservative, Garry Breitkreuz]

In a moment I will ask some of our experts here to give a comment on that.

Ms. Barnes, first.

[Sue Barnes, Liberal, London West, ON]

Thank you. May we ask whether it would be permissible, the first time we come across it in the bill, to make an amendment to effect that change, then make that a consequence that would affect...so we wouldn't have to go through it 36 other times? Would that be correct procedure: if we do the first one, pass it once and then have it necessarily apply to all the other provisions?

[The Chair, Conservative, Garry Breitkreuz]

I'm not sure if that would be possible.

[Sue Barnes, Liberal, London West, ON]

I know it's right.

[The Chair, Conservative, Garry Breitkreuz]

We'd need to keep very close track of that.

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

I will help you, Mr. Chair.

[The Chair, Conservative, Garry Breitkreuz]

Monsieur Ménard.

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

A point of order, Mr. Chair.

We had prepared a version, in case we were asked to make the change in every clause. I think we left it with Mr. MacKenzie at noon. Do you have it? It would be the Conservatives who prepared that?

[The Chair, Conservative, Garry Breitkreuz]

Mr. MacKenzie.

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Chair, I do believe the officials have prepared a document that would go through the bill and each clause, specifying where the change needs to be made.

There may be some breakdown in communications. I thought Mr. Ménard was going to present that as a package, but we're happy to do it.

[The Chair, Conservative, Garry Breitkreuz]

What about the actual change in the wording? Do any of our witnesses have any comment as to the essence of what that might do and if that would improve the bill?

Mr. Therrien.

[Daniel Therrien, Acting Assistant Deputy Attorney General, Citizenship, Immigration and Public Safety Portfolio, Department of Justice]

The idea of replacing "défenseur" with "avocat spécial" does not cause any difficulties. What prompted us to use the term "défenseur" to refer to the lawyer in question is that the lawyer is playing a specific role in relation to the individual against whom the certificate has been issued. Using the terms "avocat" or "avocat spécial" caused some difficulties for the legal drafter. As well, the person obviously has to be a member of the bar, and the particular aspect of the relationship between the lawyer and the individual against whom the certificate is issued is spelled out in the bill. The expression "avocat spécial", when qualified by the express provisions defining the person's role, therefore seems to us to be acceptable.