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.