Evidence of meeting #4 for Public Safety and National Security in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was individual.
A recording is available from Parliament.
5:05 p.m.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
I know many proceedings on appeal, but none that is as restrictive as the one you have devised in this instance.
Could you tell me where you found the model for the right of appeal in Bill C-3?
5:05 p.m.
Acting Assistant Deputy Attorney General, Citizenship, Immigration and Public Safety Portfolio, Department of Justice
The model comes from the remainder of the Immigration Act. All judicial reviews of decisions made under the Immigration Act are subject to a limitation, which is the certified question of general importance. It is a request for leave procedure under the purview of the trial judge. This procedure exists and is used throughout the Immigration Act.
5:05 p.m.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
So you are saying that under the Immigration Act the same judge who made the decision writes the document that will be used to decide if an appeal is allowed? He is the one who decides for what reasons an appeal can be made?
5:05 p.m.
Acting Assistant Deputy Attorney General, Citizenship, Immigration and Public Safety Portfolio, Department of Justice
The judge decides if there is a matter of general importance. However, once the judge has made that decision, the appeal is not necessarily limited to the certified questions. The filter is the need to convince the trial judge that there is a question of general importance, which he must then spell out, but case law says that once that question has been stated, the appeal proceedings can go beyond that.
5:05 p.m.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
I will check that out. I am intrigued. You are saying that I can appeal a decision a judge just made against me, but that this same judge will decide for what reasons I can appeal. Furthermore, he will decide... This seems to be a beautiful system to move law forward but it does very little to reassure the person concerned.
But you say that this is already in the Immigration Act.
5:05 p.m.
Acting Assistant Deputy Attorney General, Citizenship, Immigration and Public Safety Portfolio, Department of Justice
This is a system that has been in place for many years under the Immigration Act. Obviously, it shows a desire to move law forward regarding matters of general application while having a system that produces decisions as quickly as possible.
5:05 p.m.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
If I remember correctly, in the Supreme Court decision in the Charkaoui case the court looked into the issue of how long these individuals might remain in detention.
I almost feel that the court said—it did not say so, but this is what I think—that the more time goes by the less the individual can be considered dangerous. Even for people who have killed, who committed first degree murder, we agree that after 25 years they can be paroled.
What is your answer? How long are we going to detain these individuals? For how long are we going to maintain in detention these individuals who might have had a relationship with terrorists?
5:10 p.m.
Acting Assistant Deputy Attorney General, Citizenship, Immigration and Public Safety Portfolio, Department of Justice
I might start by answering about the Supreme Court and my colleagues might want to add something.
The Supreme Court provided a formula to assess the legitimacy of a detention that gets longer and longer and this is the formula we intend to apply without codifying it in all its details.
Therefore, the bill contemplates regular reviews of the individual's detention and the factors to be assessed are those spelled out by the Supreme Court, including the passage of time and what it means for the danger the individual represents etc. The Supreme Court spelled out a number of criteria and they will be applied case by case by the Federal Court judge. We believe that giving this power to the Federal Court judge ensures the required fairness and judicial review.
Another factor provided by the Supreme Court is that detention in matters of immigration must necessarily have deportation as its purpose. It is another aspect that needs to be taken into account in the Federal Court review, every six months, the legality of the individual's detention.
5:10 p.m.
Conservative
The Chair Conservative Garry Breitkreuz
We'll have to wrap it up. Are you pretty well done, Mr. Ménard? You're out of time. You might not get another turn.
5:10 p.m.
Conservative
5:10 p.m.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
Now I have a blank. Ah! yes, I remember, it was about solicitor-client privilege.
What danger would you see if there was a requirement for the special advocate—in French, you call him défenseur—to keep secret information provided to him by the individual?
5:10 p.m.
Acting Assistant Deputy Attorney General, Citizenship, Immigration and Public Safety Portfolio, Department of Justice
I am the one with a blank now.
Do you want to take that?
5:10 p.m.
General Counsel, Canada Border Services Agency
Certainly.
Let me go back and talk a bit about why we say what we say in the act about solicitor-client privilege. The reason we say that—and I believe it's the same reason given by the British, as well—is that lawyers, when representing an individual, have an obligation to that individual to be perfectly frank and candid, to give advice to the best of their ability and not hold back, and to be fully frank in providing the advice and not hide things from the client.
In this case, there are communication restrictions on the special advocates. The special advocates, if you didn't say something about solicitor-client privilege, would find themselves pulled between two obligations: the obligation to maintain the secrecy of the information on the one hand and the obligation to be perfectly frank with the client on the other. That's untenable. So in order not to have that situation occur, we have to deal with it. And we've dealt with it by saying that the solicitor-client relationship isn't here. Having said that, it certainly was not the intention in fixing that problem to then turn around and make the special advocate a compellable witness based on what that individual has heard from the person who is the subject of the certificate. Absolutely not.
5:10 p.m.
NDP
Penny Priddy NDP Surrey North, BC
Thank you, Mr. Chair.
I have only five minutes, so I will ask short questions. If you will give me short answers, that would be a very fine thing.
Earlier—and I perhaps was unclear on the answer—when you were asked how the special advocate was selected, I heard that the lawyer for the person being detained made a submission. Did I hear that somebody else made a submission too?
5:10 p.m.
Acting Assistant Deputy Attorney General, Citizenship, Immigration and Public Safety Portfolio, Department of Justice
It is the government.
5:10 p.m.
NDP
Penny Priddy NDP Surrey North, BC
Why would the government do that if we have this list of fine, upstanding, respected, experienced lawyers? Why would the government need to make a submission with respect to which of those special advocates should be used?
5:10 p.m.
Acting Assistant Deputy Attorney General, Citizenship, Immigration and Public Safety Portfolio, Department of Justice
It would be difficult to give a short answer to that question.
The U.K. experience, for instance, tells us that there is a phenomenon called tainting that occurs.
5:15 p.m.
Acting Assistant Deputy Attorney General, Citizenship, Immigration and Public Safety Portfolio, Department of Justice
And the government would be concerned with tainting and would recognize tainting and may have to make submissions on that issue.
5:15 p.m.
NDP
Penny Priddy NDP Surrey North, BC
I see. Thank you.
Do you know if—because there are so many people who are interested in this, and I was not here before—either the Canadian Arab Federation or the campaign to stop secret trials in Canada presented before you as you developed your legislation?
I'll ask this question differently at the end, but I just want to know if they--
November 27th, 2007 / 5:15 p.m.
Edith Dussault Director, Operational Policy Section, National Security Policy Directorate, Department of Public Safety and Emergency Preparedness
Perhaps I can answer that.
There was no actual presentation made to the government. However, there are various other means. The Supreme Court heard many stakeholders, and the committees and parliamentarians, as well, have heard from various stakeholders, and through those decision-rending bodies we took advice.
5:15 p.m.
NDP
Penny Priddy NDP Surrey North, BC
I see. Thank you.
Can you tell me, aside from the compensation the lawyers will receive—I know it's in the regulations, as I heard earlier—what the budget will be for this? What if, for instance, the special advocate decides, based on the information she receives or sees, that she needs to have more research conducted? Can you tell me what the budget will be for this department?
5:15 p.m.
Director, Operational Policy Section, National Security Policy Directorate, Department of Public Safety and Emergency Preparedness
Perhaps I can answer that, as well.
Because it is for Parliament to decide on this bill, it's very difficult at this point in time to arrive with specific costs attached. We'll have to look at what Parliament decides, and then after that we'll be able to determine the specific costs.