Public Safety Committee on Dec. 7th, 2007

[The Chair, Conservative, Garry Breitkreuz]

I call this meeting to order.

This is the Standing Committee on Public Safety and National Security, meeting 11. We are continuing our sessions on Bill C-3, an act to amend the Immigration and Refugee Protection Act and to make a consequential amendment to another act. This is a continuation of last night's session.

Again we welcome the officials, who were here bright and early. It's probably midday for some of you, but we appreciate your coming. Most of you were here last night.

We will continue now with clause-by-clause consideration.

I want to thank the support staff we have here for the great job they've done overnight. They have the new package all ready, with the amendments in order and with correct numbering. I hope you all have that now. I appreciate the hard work everybody has done overnight.

(On clause 4)

When we adjourned last night we had adopted amendment L-1 on page 7. We will now resume with amendment G-2 on pages 8 and 9. Amendment G-2 is a government amendment, and we will ask someone from that side....

Do you have a point of order, Monsieur Ménard?

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

Yes, I would like to move a subamendment.

[The Chair, Conservative, Garry Breitkreuz]

Mr. MacKenzie, before he can introduce his subamendment, you have to introduce your amendment. Why don't you go ahead?

Then we will come back to you, Monsieur Ménard. You can't introduce a subamendment until we have the amendment introduced.

[Dave MacKenzie, Conservative, Oxford, ON]

If I have this correct, Mr. Chair, it's in our package as amendment G-2. I move that Bill C-3, in clause 4, be amended by adding after line 23 on page 7 the following:

(1.1) If the permanent resident or foreign national requests that a particular person be appointed under paragraph (1)(b), the judge shall appoint that person unless the judge is satisfied that

(a) the appointment would result in the proceeding being unreasonably delayed;

(b) the appointment would place the person in a conflict of interest, or;

(c) the person has knowledge of information or other evidence whose disclosure would be injurious to national security or endanger the safety of any person and, in the circumstances, there is a risk of inadvertent disclosure of that information or other evidence.

I think it's fairly self-explanatory.

[The Chair, Conservative, Garry Breitkreuz]

Did you all get that through the translation? Okay.

Monsieur Ménard, you had indicated you wanted to raise an issue.

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

I move that subsection (c) of this amendment be struck. I fail to understand why such a provision is being added here. The special advocates have undergone a security check and they have been chosen precisely because they could be entrusted with secret information and I imagine that they were sworn in and pledged to never reveal any secret information provided to them.

If these special advocates are going to be called upon to intervene in various cases and if the government wants them to form a team that it can trust in matters of security — and I believe that such is the case —, then I see no reason to add this provision. Indeed, this would prevent special advocates from defending various cases. Inevitably, in one case or another, they will be provided with secret information that will not apply in the following case. You are saying that there is a risk of inadvertent disclosure by them of secret information. In my view, this risk always exists.

We are creating this function because, in creating this team, we are going to seek out lawyers having sufficient honesty, integrity, competence and seriousness to keep some information secret. I do not get the point of subclause (c) whatsoever.

[The Chair, Conservative, Garry Breitkreuz]

Mr. Norlock, you were going to refer this to...?

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Yes, I think we need to hear from the officials.

[The Chair, Conservative, Garry Breitkreuz]

Who would like to comment? Ms. Clairmont?

[Lynda Clairmont, Associate Assistant Deputy Minister, Emergency Management and National Security, Department of Public Safety and Emergency Preparedness]

I'm going to ask our legal counsel, Mr. Therrien, to talk to that with respect to the special advocates team.

[The Chair, Conservative, Garry Breitkreuz]

Mr. Therrien, go ahead when you're ready.

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

This provision flows from the British experience with regard to special advocates. Indeed, the British observed that, in certain cases where there was a risk of disclosure, there was a phenomenon called tainting. Let us take the example of a special advocate who is called upon to intervene in a first case involving facts or issues related to a given organization or country. This same special advocate is then asked to play the same role in the context of a second case involving similar information, for example the same country or the same organization. The primary role of the advocate, within the confines of the second case, is to meet with the individual whose interests he is defending in order to gain knowledge of the facts as the individual understands them and wants to see them presented. It is during the course of this meeting that, not through dishonesty or through any lack of integrity but inadvertently, the advocate might make some disclosure.

I wish to underscore that all of the provisions we are discussing now aim to establish a balance between the desire to adopt the fairest process possible, on the one hand, and, on the other hand, the protection of information the disclosure of which would impair national security. It is a matter of balance and judgment. It is our view that the British experience proves that it would be prudent, in this search for balance, to afford ourselves the possibility to rely on the provision in question.

[The Chair, Conservative, Garry Breitkreuz]

Ms. Barnes.

[Sue Barnes, Liberal, London West, ON]

Thank you. I'd like to ask a couple of questions on this, just so that I'm clear in my own mind.

Part of what we're trying to establish here is special advocates with expertise. But I'm hearing you say something suggesting that this means that somebody who has been on one case would never be allowed to...you would rule them out for the same country; you would never let one special advocate be the special advocate in a second case if it involved the same country.

Could you clarify that?

[Daniel Therrien]

I was too broad in my characterization. What I'm trying to say is that there will be overlaps in the facts of cases that may lead to this concern with tainting. I'm trying to describe what they might be, but I'm not saying that simply because a special advocate played the role for country X, he would automatically be disqualified from representing the interests of a person from the same country in a future case. You would have to look at all of the information and determine whether there is this risk of tainting by inadvertence.

[Sue Barnes, Liberal, London West, ON]

You've said that Britain has had this problem. Have they put into their legislation a similar clause? I didn't think they had.

[Daniel Therrien]

I believe they do not legislate to that level of detail, but in the British system, first of all, it is not the judge who decides on the appointment of the special advocate, contrary to what is proposed here; it is the government. The government has discretion to appoint or not to appoint a given individual, and the information we have is that in the way the program is administered, the government takes into consideration that risk of tainting.

[Sue Barnes, Liberal, London West, ON]

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

Next is Mr. Dosanjh.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Thank you.

I understand the thrust and the rationale for this particular clause. It is not an automatic disqualification if, in the judge's opinion, there could be tainting more than disclosure, because as Monsieur Ménard says, special advocates are trained to not disclose. They are all lawyers.

My concern is something different. It is to do with the exculpatory evidence. It is more likely that if you have a special advocate acting in the cases connected with the same country, that special advocate may have possession of exculpatory evidence with regard to the individual who's before the judge and for whom he or she is being appointed.

How do you deal with that? I think if there is exculpatory evidence in the knowledge of the special advocate, disclosure of which does not endanger the national security, that exculpatory evidence should be available and that special advocate should be appointed.

How do you deal with that? This clause, if left in, might deprive a particular detainee of this exculpatory knowledge that the special advocate may have. I don't know whether there's an easy way of separating these issues.

[Daniel Therrien]

It is not easy, but the jurisprudence requires the ministers who file the certificate, or their counsel, to reveal exculpatory evidence related to the foundation of the certificate.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

And that's in the decisions of the courts?

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

We're debating the subamendment. To be clear, you were wanting, Mr. Ménard, to remove proposed paragraph (c)?

Yes? Okay, then, let's focus our—

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

I hope it's within the scope of the bill this time.

[The Chair, Conservative, Garry Breitkreuz]

You're getting back at the chair, aren't you? Okay.