Public Safety Committee on Nov. 27th, 2007

[Daniel Therrien]

To start with the question of compensation, they would not be paid at the legal aid rate. What we have in mind is that special advocates would be people of some experience, paid accordingly.

They would have various types of experiences. Definitely, at the core, we think that special advocates should have important litigation experience. Then the type of experience will be able to be one of various kinds, but at the core, litigation experience and probably, as an asset, knowledge of national security law, immigration law, perhaps human rights law.

The idea is to attract a sufficient pool of people with significant experience, so we don't want the criteria to be too narrow--say, many years of litigation experience in immigration law with national security, etc.--because the pool of people might be too small. We want to have criteria that recognize experience and knowledge but not be trop pointu, not too narrow.

That may mean that the people we have in mind will have experience and knowledge, but we may have to supplement their knowledge in some respects. For instance, if we have someone with, again at the core, significant litigation experience and knowledge of national security law but not immigration experience, we would provide training to supplement that, if required. Or vice versa: if someone has knowledge in a certain area of the law but not national security law or not hands-on knowledge in the national security field, we may supplement that. That calls for some training capacity, then, to again supplement the knowledge base of special advocates.

[Sue Barnes, Liberal, London West, ON]

Will the detained person have the right to choose from among a panel, or will he or she be assigned a specific person? And if for some reason that relationship doesn't work out, will they be able to choose another person from that panel?

[Daniel Therrien]

It is the judge who will decide on the special advocate, with submissions from both the individual concerned and the government. So the individual will have a say, but will not have the final say. The judge will decide. If there is a breakdown somehow in the relationship, it would be open to the person to again apply to the court to change the special advocate.

[Sue Barnes, Liberal, London West, ON]

The documentation that the special advocate gets to see, is that documentation that's been redacted, or will they see the original text, the full text?

[Daniel Therrien]

They will see everything the court sees, which is everything.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much.

Now we'll move over to Mr. Mayes, for five minutes please.

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

I'll follow up on some of the questions of Ms. Barnes.

Who will determine what is significant experience, what is important litigation, what is some experience? Who's going to sit down and make that determination?

[Daniel Therrien]

I'm using vague language because this will be in the regulations, essentially. When you see the regulations, you will see what “significant” means. It will be in the number of years. What we are fairly certain will appear in the regulations is, at the core, litigation experience. In the regulations you will see how many years, in what area, etc. So it will be quite clear in the regulations.

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

Will it be somewhat independent of the government? Would it be a body that would be outside of the jurisdiction of the government or influence by the government that would make that determination?

[Daniel Therrien]

Absolutely. First of all, by statute, the role of the special advocate is to represent the interests of the individual, not to represent the government. The rules leading us to the selection of special advocates are geared to ensure independence from government.

First, as I said, the judge will actually appoint the special advocate. The roster of special advocates will be determined by the Minister of Justice but following a recommendation of a group of persons, probably a selection committee, that will have representation outside government and will actually be composed mostly of people from the outside. So the bar, obviously, would be an important player in the body that will make recommendations to the justice minister on the composition of the roster.

All of this is to take place with a view to ensuring that the advocates who will be part of the roster and eventually play a role to represent the interests of the individual are, and are seen to be, independent from government.

[Colin Mayes, Conservative, Okanagan—Shuswap, BC]

Thank you for that reassurance.

[The Chair, Conservative, Garry Breitkreuz]

You're done, Mr. Mayes?

Does anybody from the Liberal side have a question?

Mr. Wappel, with the committee's consent, of course.

[Tom Wappel, Liberal, Scarborough Southwest, ON]

I appreciate that very much, since I'm not an accredited member of this committee.

I'd like to ask the witnesses two very specific things. In the report of this committee on the Anti-terrorism Act, there was a brief chapter on security certificates. There were two recommendations. One recommendation dealt with adding the word “reliable” to the type of evidence, and I notice that the government accepted that recommendation in paragraph 83.(1) (h), so I thank the government for that.

However, I'm a little unclear on the government's position on recommendation 52. Recommendation 52 recommended that a determination on the reasonableness of the certificate should be made before a determination on whether or not a person would be removed to possible torture. The new bill doesn't contain any provision similar to section 79 of the present act. So I guess taking that out of the act addresses the committee's recommendation. At least that's how I'm reading it. However, proposed subsection 77.(3) provides that once the certificate is referred there will be no proceeding respecting the person other than proceedings relating to some named sections. One of the named sections is section 112, and section 112 provides—and I'm a little confused about it, so I'm hoping somebody from the Immigration Department can help us out here—section 112 provides that a person may apply to the minister for protection if they're named in a certificate in subsection 77.(1). So they can apply for protection, and yet subsection 77.(3) says that refugee protection cannot be granted for a person who is named in a certificate in subsection 77.(1).

Is there a difference between refugee protection and the protection that section 112 talks about?

[The Chair, Conservative, Garry Breitkreuz]

Mr. Woods.

[Warren Woods, Senior Policy Analyst, Operational Policy Section, National Security Policy Directorate, Department of Public Safety and Emergency Preparedness]

Yes.

If I understand correctly, the committee that studied the Anti-terrorism Act, and it also included the study of IRPA in their jurisdiction, were concerned with the Federal Court process that was a dual process. It included both an assessment as to whether or not the certificate was reasonable and it also determined if a pre-removal risk assessment issued by the Minister of Citizenship and Immigration was lawful. So it had this double assessment process, and that process was complex and it led to delays in the issuance of both PRRA decisions as well as reasonableness findings from the Federal Court.

This played out in a number of cases, so the committee recommended that we eliminate the suspension that suspends the reasonableness hearing. So this has been done in Bill C-3. That's been done, and it goes further than that. It allows the reasonableness hearing to proceed in parallel with an application for refugee protection or an application for a pre-removal risk assessment, so that's what you're reading in subclause 77.(3).

[Tom Wappel, Liberal, Scarborough Southwest, ON]

So instead of suspending the reasonableness hearing, it allows both to proceed at the same time?

[Warren Woods]

And parallel from each, exactly, to arrive at a decision under their own natural progress.

[Tom Wappel, Liberal, Scarborough Southwest, ON]

Thank you. That's how I'm reading it, and that's what I understood. So it's almost what the committee recommended, but it's tweaked.

[Warren Woods]

Yes.

[Tom Wappel, Liberal, Scarborough Southwest, ON]

That's fine. It's better than not taking the recommendation.

The grounds for issuing a certificate are inadmissibility “on grounds of security, violating human or international rights, serious criminality or organized criminality”. Those are the same words under subsection 112.(3) that would prevent a person from being granted refugee protection. What's the distinction?

[Warren Woods]

You could say that there are two types of people who become subject to a certificate, two types of foreign nationals or permanent residents. Some of them enjoy conventional refugee status. Those individuals do not apply for a pre-removal risk assessment or PRRA, because they've been deemed to be a refugee. But those who do not have conventional refugee status are entitled under IRPA to apply for pre-removal risk assessment. The assessment will assess whether or not they face harm in their source country--torture or other forms of serious harm or ill treatment. If they're granted protection under the PRRA process and they're subject to a certificate that's been found to be reasonable, there would be a deferral of removal in their case, if there's a potential for harm in their source country.

[Tom Wappel, Liberal, Scarborough Southwest, ON]

Thank you very much, Mr. Chairman.

Thank you, members of the committee, for allowing me to ask those questions.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

The last person in this round is Mr. MacKenzie.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you, Chair, and thanks to the panel.

Can you explain to us what happens if this is not passed by February 23, 2008?

[Lynda Clairmont]

If this isn't passed by February 23, 2008, then the applicants, or the people who are being detained or are on conditional release under security certificates, would appeal to the court to have those security certificates or conditions of release quashed, and they would be successful.