Public Safety Committee on Nov. 27th, 2007

[Gord Brown, Conservative, Leeds—Grenville, ON]

Thank you very much, Mr. Chairman.

Thank you, Minister, for appearing today.

As you know, I chaired the subcommittee of this committee that reviewed the Anti-terrorism Act last year in the first session of this Parliament. When the Supreme Court ruled on the validity of the security certificate regime, there were a lot of media reports that in fact the Anti-terrorism Act had been struck down. You've told us that the security certificate regime actually came into effect in 1991. Maybe you can tell us a little bit more about the history of how it worked and why it came in.

Also, in many cases it may not necessarily be.... Some actually believe that this has solely to do with terrorism-related activities. Could you tell us about different types of national security risks that might be considered for someone who would be subject to a security certificate?

[Stockwell Day, Conservative, Okanagan—Coquihalla, BC]

I'll try to address those questions.

First of all, I mentioned the year 1991 in saying there had been 28 successful applications of the security certificate process. I didn't want to give the impression this process started in 1991; I believe it was 1977 when it first came in, so I should have mentioned that at the start.

If I'm not wrong, it was actually to do with organized crime. Some cases were identified internationally as being involved in organized crime in such a significant way that a process had to be developed. Those people were trying to come to Canada, and as it was widely known who they were and what they were doing, the Liberal government of the day said, I think quite rightly, that there had to be a process to stop that. Yes, they could appeal, but those people were so dangerous.... Maybe it was drug-related or assassination-related--who knows? In any case they were saying they were so dangerous that we were just going to have to find a way to detain them while they were here.

So when it came in, it was related to organized crime in the first instance, and that's an important part of your question. We're looking at this in a post-9/11 context, thinking about terrorism all the time, but in fact it applies to organized crime. In one case not that long ago, it was applied to an individual as a known espionage agent; the same process was put in place, so it's not talking strictly about terrorism.

Did I catch all parts of the question there? Was there something I missed? I wrote down the one on national security, and when it began....

[Gord Brown, Conservative, Leeds—Grenville, ON]

Could you just say a little bit more on why it came in?

[Stockwell Day, Conservative, Okanagan—Coquihalla, BC]

Again, it was on the grounds of national security or of Canadians being significantly threatened by an individual whose known history was such that it posed that threat. I think the government of day, in this case the Liberals, took the right position in saying that if it was the role and responsibility of government to protect its citizens, then a government would be irresponsible if it let a known menace just wander around; it would in fact be irresponsible of a government to do that.

Therefore, this provision was put in place, still recognizing the right of appeal and still recognizing that a person who comes to Canada, even though they're not a citizen, does have certain rights, though not as broad as a citizen would. So it tries to respect the same balance Ms. Priddy raised, the balance between liberty and protection. That's a fine line to walk, and I believe the balance was achieved correctly when this type of legislation was initiated. I believe we've also addressed what the Supreme Court thought was an imbalance in two of the areas.

If I can just restate that point, the Supreme Court did not say the security certificate process was unconstitutional, but deemed that two areas were unconstitutional: fix those and the process will hold; don't fix those and the whole process will collapse.

[Gord Brown, Conservative, Leeds—Grenville, ON]

That gets to my next question.

You've outlined the specifics of Bill C-3, but so that all of us can really appreciate the context of this bill, can you confirm that the Supreme Court actually upheld the constitutional validity of all existing security certificate processes of arrest and detention, the withholding of information to detainees on the basis of national security, extended or uncertain detention or restricted release, the notion that the rule of law permits restricted rights of appeals in presumptive detention in the security and immigration context, and that section 6 of the charter notes that non-citizens do not have a charter right to enter or remain in Canada?

Are you confident that the Supreme Court will uphold the constitutional validity of what we're proposing here in Bill C-3?

[Stockwell Day, Conservative, Okanagan—Coquihalla, BC]

Well, those are key points that you're making. I'm just giving myself a slight opening when I say that I believe in every case where it's been tested, the Supreme Court.... As a matter of fact, the Federal Court of Appeal has heard appeals on the constitutional validity of these cases. In each case—and certainly in the recent cases since 2001—the court has upheld the constitutionality of the process. It's part of assuring that the charter itself is being respected.

As these cases came forward, one by one, not only did the court uphold the validity of the concern that these individuals could indeed pose a risk to Canadians, but also in response to the many vigorous appeals that it was unconstitutional for them to be kept in detention, the court agreed—in cases where it said they could come out of the facility—that house arrest be extremely restrictive, even to the point in some cases of these individuals not being allowed to take telephone calls, or having their calls monitored; having to wear an electronic bracelet; not being allowed to have Internet capabilities in their house; and requiring permission to leave the house. Remember, this was the court agreeing to these restrictions. So it wasn't just an academic nod of the legal hat saying this is a constitutional process, but when it came time to be pragmatic and to put in place some very clear specifics, the court also upheld those.

That's why I say the constitutionality of these, and this process, was upheld. But the Supreme Court said that we had to fix some particular areas. They said we could still detain somebody, but if they were a foreign national, they had to get a review in the first 48 hours, and every six months thereafter. So, broadly speaking, the detention, based on what we've provided, is constitutional—but they said we have to put some extra provisions in here.

It was the same with the special advocates, where the Supreme Court said they wanted to be sure the individuals had somebody who was exploring the full range of appeal options on their behalf.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

We will now go to five-minute rounds.

Mr. Cullen, please.

[Roy Cullen, Liberal, Etobicoke North, ON]

Thank you, Mr. Chairman.

Thank you, Minister, for coming.

Many of us in this room were on the subcommittee of this committee that looked at the Anti-terrorism Act. In fact, if you go back two Parliaments, that's when the process started. I know that my colleagues Tom Wappel and Serge Ménard were on that.

Gord, were you chair of the first one?

[Gord Brown, Conservative, Leeds—Grenville, ON]

No.

[Roy Cullen, Liberal, Etobicoke North, ON]

It goes back a bit, but in the course of looking at that, the decision was made by the subcommittee to include the review of security certificates, even though it's under the Immigration and Refugee Protection Act.

It's interesting that you're leading on Bill C-3, sir, and not the Minister of Citizenship and Immigration, but maybe this is the new reality. It's the processing. Frankly, I'm not that interested.

I have a few points on a couple of the issues. One of the things our subcommittee concluded—admittedly with dissenting opinions from the Bloc and the NDP—was that security certificates were still required, but some improvements had to be made to the process. We felt we were in pretty good company with the Supreme Court. I can't remember which decision came first.

One of the compelling things for me was when we heard from Paul Kennedy at the very first subcommittee. He was not the complaints commissioner at the time; he was a senior official at Public Safety and Emergency Preparedness Canada. He brought a file concerning an alleged Iranian assassin. It was in a thick binder, and he had whited out all those things that would compromise national security and confidentiality. He took the committee through the whole dossier.

There was a member from the B.C. Civil Liberties Association sitting at the table on the panel. I remember asking him if he would like to have this individual as his next-door neighbour. He said no, he wouldn't. I said, “So your problem is...?” He said, “Well, it's the process”. We're on the same page. We think the process needs improvement.

There's something in the response in Bill C-3 that I'm a little curious about and a little disappointed in. Our subcommittee had recommended a special advocate counsel, like a cadre, that would look at not only the security certificates process, but also a few other processes, like the deregistration of registered charities, denial of charitable status, and applications for the disclosure of information under the Canada Evidence Act. There have been allegations—and I think with some merit—that these have star chamber types of characteristics to them as well.

The government's response this summer sounded lukewarm. It said: “At the present time, the government believes that further study of the use of special advocates in other processes is required.” Reading between the lines, I don't know if that means we don't agree and we're deep-sixing it, if there is a study, or if there is a study, what the timelines are.

What are some of the issues that were presented in not adopting these recommendations at the same time? I'm not pretending that we own a monopoly on truth and wisdom on these, but are you looking at developing a cadre to be used for these other processes as well?

[Stockwell Day, Conservative, Okanagan—Coquihalla, BC]

The very fair question you're posing also requires me to point out that some of the items you just listed are not under public safety legislation; they are under the Minister of Justice and the Attorney General of Canada. I'm not passing that off in any way, but he or his officials--

[Roy Cullen, Liberal, Etobicoke North, ON]

Well, you're already answering questions for the Minister of Immigration.

[Stockwell Day, Conservative, Okanagan—Coquihalla, BC]

He appropriately has jurisdiction for a number of those.

We looked at concerns that were raised around this table. We looked at other jurisdictions, and that's why I have made references to the role of the special advocate. We looked at some of the shortcomings of the U.K. model. These are the areas that are under my jurisdiction.

There is an interesting provision in this new legislation in paragraph 85.2(c) that along with everything delineated here in terms of protecting the individual, the judge has some sweeping—and I'll very cautiously use the word “liberal”—powers to do a number of things that aren't delineated in the act if he or she feels that it's going to be in the interest of the person being detained.

So we are not only dealing with the exact items I mentioned--some of which you have mentioned in your list there--that would have application to this act without having to delineate them. The judge is given some specific powers, if he or she determines that it's in the interest of that person being detained, to allow other provisions and extensions of these curtailments of liberty you just mentioned.

[Roy Cullen, Liberal, Etobicoke North, ON]

That really doesn't answer my question, but perhaps it's a question I will put to the Minister of Citizenship and Immigration.

I think there are other elements of the processes. For example, I would have presumed that charitable status would come under you or the Minister of Finance.

[Stockwell Day, Conservative, Okanagan—Coquihalla, BC]

You're right—under the Minister of Finance. Some applications that go to me mainly fall under the Minister of Finance.

You may be aware that a year and a quarter ago Canada assumed chairmanship for an international group called the Egmont Group. It comprises 101 different countries that have agreed to share financial information. We also draw from the Office of the Superintendent of Financial Institutions, and that goes to the Minister of Finance.

So if people bring forward concerns about a certain charitable organization and what activities they're involved in, there is a way to track that. I'm quite pleased that we've also assumed chairmanship of this international organization to assist in the tracking of proceeds of crime--terrorist or organized.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Mr. Ménard, do you want to finish your questions?

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

Mr. Minister, at proposed subclause 85.1(3)...

[Stockwell Day, Conservative, Okanagan—Coquihalla, BC]

Subclause 3?

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

You will recognize it right away, as soon as I read it to you. It says the following:

) For greater certainty, the special advocate is not a party to the proceeding [...]

[Stockwell Day, Conservative, Okanagan—Coquihalla, BC]

Excuse me, but I did not hear you. This is in subclause 3?

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

Of subsection 85.1. It says:

For greater certainty, the special advocate is not a party to the proceeding [...]

This is a poor translation, and I hope it will be corrected.

It is stated that:

[...] the special advocate is not a party to the proceeding and the relationship between the special advocate and the permanent resident or foreign national is not that of solicitor and client.

Mr. Minister, I understand why the special advocate is not a party to the proceeding and why this relationship, that does exist, cannot be that of solicitor and client. You will therefore conclude, as I do, that the special advocate has no solicitor-client privilege obligation towards his or her client. Personally, even if I understand why there is no solicitor-client privilege, I do not understand why the special advocate is not required to keep secret confidences made by the individual involved, as would be the case for any other lawyer.

You seem to be saying, in your first response, that a lawyer with any integrity would keep this information secret. However, given the way this bill has been drafted—and you will agree—, anything the individual says to this advocate could one day be used as evidence against him or her. If you believe that a lawyer's integrity should force him or her to respect confidentiality, then I imagine that you would expect that we clarify the Bill in order to ensure that the individual who speaks to this advocate will be able to do so with the assurance that he or she is not there to trap him or her nor to draw from him or her information that the security services agents are unaware of.

[Stockwell Day, Conservative, Okanagan—Coquihalla, BC]

Obviously, this is a situation for which we are clearly in disagreement. I agree with the Supreme Court that, I hope, will lay out the process that the Court has asked for.

In my view, we have responded to the Supreme Court's request, especially with regard to the questions you have asked. I have already indicated that under proposed paragraph 85.2(c), even with all of the specific protections laid out, the special advocate is free to call upon the judge in order to obtain further opportunities to pursue his or her discussions with the client in order to protect the latter's interests.

In clause 85, we can see that there is much protection. Later on, there are other protections, that are not specifically designated, but are there. If, even with all of these provisions, the advocate wishes to do something else in view of the evidence or of the concerns of the detainee, he or she will be able to call upon the judge in order to obtain other powers, other possibilities.

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

Mr. Minister, forgive me, but we are going around in circles.

I have the impression that you don't understand me. What I asked you, and you say you don't agree with me, is do you recognize that the way you've written the law here, anything the person says to the special advocate is admissible against that person later? Do you agree with this, or is that the part you don't agree with?

[Stockwell Day, Conservative, Okanagan—Coquihalla, BC]

That is always the case. A witness, an individual who is accused, even under this Bill, could say something that could be used against him or her. But were an advocate to use something against a client, that would be contrary to the Bill.

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

Okay, fine. That's your interpretation. So you will agree with an amendment that makes it clear, will you?