Public Safety Committee on Nov. 27th, 2007

[The Chair, Conservative, Garry Breitkreuz]

You have about 15 seconds.

[Sue Barnes, Liberal, London West, ON]

Would that include offices and research facilities and access to all the materials that they would require? People's definitions of “resources” can vary widely.

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

That's why it will be in the regulations. You mentioned access to the materials. Access to the full file will be made available to the special advocate. The special advocate then has the ability to appeal for a wide range of resources, including those that will be indicated in the regulatory provisions. This is, I think, one of the many benefits of the changes we've made. The special advocate is going to have a lot of leeway in terms of making application for various needs as he or she sees fit.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Now we'll move over to the Bloc Québécois. Please go ahead, Monsieur Ménard.

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

Thank you, Mr. Minister. Mr. Minister, the notion of special advocates is not new in legislation. We already have special advocates in cases where a complaint is filed against the Canadian Security Intelligence Service for its activities. These advocates can meet several times with a person complaining of illegal or disputable activities on the part of security services.

Despite the fact that, just as is the case with the special advocates provided for under this bill, they have access to confidential information, there has never been a single complaint that a special advocate communicated such information to the person he or she was representing.

Why, in this case, can the special advocate not have any contact, except with the permission of the judge in exceptionable circumstances, with the person he or she is responsible for defending, and why can he or she not play his or her proper role for the individual involved? I am obviously relying here on the French text, despite the fact that it, is in my view, a poor translation.

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

Thank you for your question. It is in my view very important to recognize that, if information becomes public or falls into the hands of someone who is not committed to confidentiality, then there could be a potential security problem. Such is the case not only here, in our country, but also in the case of the security services of other countries, such as the United Kingdom and Australia, if they have fears that the information, if divulged, might, in the opinion of national security authorities, become public. Under the bill, special advocates may request permission from the judge. After having obtained the information, they can appeal in order to have further discussions with the detainee, not to discuss the information itself, but to ask other questions and acquire a better knowledge of the situation.

The fact that this bill allows special advocates to appeal and to have further discussions with the person detained is unique. This only applies when national security is involved. The Supreme Court realized that such a provision was sometimes necessary.

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

I would underscore that I was aware of that part of the answer, but I find that, under the bill, it would be extremely difficult for a special advocate to have meetings, given that there is a requirement for permission from the judge, etc.

In any event, I would like to put to you other questions that, they too, are important. You have just confirmed for me the interpretation I had of the bill, namely that the special advocate is not tied by solicitor-client privilege to the person he or she is going to represent. You are now giving as a reason that it is because the special advocate is aware of confidential information. First of all, except as otherwise authorized, there is just one meeting, and there is no provision made for access to confidential documents during this meeting.

In any event, that is not where the problem lies. What the individual tells the special advocate is not secret. This individual can therefore not clear this or her chest, so to speak, as would a person accused of a crime. The individual cannot place all his or her trust in the person who is supposed to be his or her representative in front of the judge. What troubles me is not the possibility that the special advocate give information to the person he or she is representing, but that that person, when he or she meets with the special advocate, have the assurance that this advocate is not an investigator or someone who will expose him or her if he or she admits to things that no one was aware of.

I really fail to understand why this special advocate, even if he or she is not the lawyer of the person represented, does not have the same obligations with regard to the individual being represented as would be the case for any lawyer with regard to a client.

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

As for the list, when we provide the names of lawyers who could serve as special advocates, we must take into account their experience, their integrity. It is perhaps true that there could be among them someone who does not respect the process. But I do not believe that such will be the case. A lawyer will have meetings with the person detained in order to obtain information. The lawyer will then be able to look at the whole file on the individual and then, following an appeal, he or she could come back and have further discussions with the individual.

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

Perhaps I did not put my question properly.

[The Chair, Conservative, Garry Breitkreuz]

I'm sorry, the seven minutes has passed. You can do it on the next round.

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

You indicated that it was possible that special advocates not truly represent the individual, by not putting their whole heart into it. But a lawyer does not want to come across as someone without integrity, who does not take on his or her work with sincerity. Even the Supreme Court has not indicated that there are other protection mechanisms for such cases.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

You can come back to the issue on the next round.

Ms. Priddy, please.

[Penny Priddy, NDP, Surrey North, BC]

Thank you.

Thank you, Mr. Minister.

Because the NDP takes a somewhat different position on this, I'm going to use about a minute of my seven minutes to put some context around that. I think the minister knows that the NDP is opposed to this legislation. We think terrorism and espionage and organized crime are very serious matters that should be dealt with under the Criminal Code of Canada. We don't necessarily think Canadians are safer when people who are a threat to our system are simply made to leave the country. We do have a very good justice system here in our country. So we believe that anyone who's responsible for a criminal act should be charged under the Criminal Code, regardless of their status in Canada.

We are concerned that under these circumstances the security certificate process proposed in Bill C-3 undermines some fundamental values in our justice system. Even with the provision for a special advocate—and I know we will talk more about that—security certificates, we still think, violate certain civil liberties that are important to any democracy.

So in light of those objections, I'd like to explore just a bit with the minister some questions that I might have, and I thank you for answering those.

If a foreign national or permanent resident is suspected of terrorist activities, they are detained, and may appeal--correctly--and perhaps then be deported as the next possible step under the security certificate process. What happens if a Canadian citizen is charged with the same crime? Would they then be arrested, charged, tried, and punished? So why are there two separate processes?

Secondly, when a permanent resident or a foreign national is deemed to be a threat in Canada and is deported back to their own country, what happens to them when they arrive in their own country? Are they free, then, to go back to organizing all of those things that we were worried they would organize here? Or are they under some kind of penalty when they return?

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

That's a series of good questions.

You're quite right: we see this differently. There's a difference of opinion. Frankly, you also have a different opinion from that of the Supreme Court on this, because they see it differently. I do think we're agreed that when it comes to fundamental liberties here, we have to be very cautious. Any time either a group or an individual is asking for a provision to grant increased security, you're going to look at taking away some freedom somewhere. If I want increased security, say, around this building, we may be able to get that, but it's going to limit some of our liberties in terms of coming and going. That's a formula we will always contend with in a free and democratic society, and it's one we should look at very carefully. So I think we're agreed on that in terms of fundamentals, and we disagree on when that should kick in.

This is different from pursuing somebody for a conviction for a crime, as you know. In one process, the criminal process itself, you have to have evidence that stands up in a court of law, sufficient that a person be convicted and actually put in prison.

[Penny Priddy, NDP, Surrey North, BC]

I understand all that.

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

We're not talking about that when we're looking at the security certificate. We're talking about who's been deemed inadmissible, which happens every day, in hundreds of cases. People are deemed inadmissible, and sometimes at that point they in fact go back to their country of origin, or sometimes they appeal. It's understood that for any country that would have to go through the full range of criminal proceedings to deem somebody inadmissible at the border, the border itself would collapse under the weight of that.

But you do have to show some reasonable cause that a person should be deemed as such, and that's why, again, it comes back to the difference of opinion that we have. As far as possible, you need a process in place that will respect rights, but it can't be to the same extent as pursuing somebody for breaking a law and then wanting to put them in jail. This is strictly detaining them while they are appealing, and once the appeal is over, without any hesitation, they're going to be fully free to go back home to their country of origin or to be free to walk around the country. So it is a very different set of circumstances.

In terms of what happens to them when they return home, the courts have been clear that you can't deport somebody if there is, in the court's view, a reasonable prospect that they're going to face torture.

[Penny Priddy, NDP, Surrey North, BC]

I understand.

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

In terms of what they do when they return home, they will then be, I would gather, back in their country of origin. And would they be free, as you said, to continue to plan terrorist activities or do whatever? Well, we can't monitor, necessarily, what people are doing in other countries. You can to a degree. So I would think—this is speculation now—that a person like that who's been identified as inadmissible and then goes back to their country of origin would probably think they're under some kind of scrutiny, either by their home authorities or by other authorities, and that whole process would probably cause them to restrict their activities somewhat.

[The Chair, Conservative, Garry Breitkreuz]

Did you have another question—

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

The last part of what I said is speculation.

[Penny Priddy, NDP, Surrey North, BC]

Thank you.

I was very interested in your answer to a previous questioner about the fact that we don't state that you cannot use evidence that has been received when someone has been tortured. It is implicit, but we don't have to state it; it has been implicit. I have to say that I do find that a bit ironic, because I always thought it was somehow implicit that we returned to Canada our citizens who had been found guilty and were facing the death penalty in another country. That's not stated; while it was implicit, it no longer is, but that is an aside.

Mr. Minister, given that the U.K., on which this model is heavily based, has twice said there are problems with this system—most recently on October 14—I'm curious as to why we would still proceed with a system that is very much like theirs, when it has twice been criticized by their House of Lords.

[The Chair, Conservative, Garry Breitkreuz]

You have about half a minute.

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

If I'm not wrong, they've had to change theirs in terms of the special advocate three times--not just the recent one I mentioned, but also in 1997 and 2003. We've learned from that. I believe we have a special advocate system that is in fact quite different. In their system, their advocate is appointed by the Attorney General. Here we have a roster, and a justice will appoint them. They don't have a roster process in the same way we do. Their special advocate can only cross-examine and give written or oral submissions, but in our case the judge has the authority, if the special advocate here asks for it, to permit them to call in witnesses, to listen to testimony, and to actually cause those people to appear.

I think there are some far-ranging differences. There is greater liberty on behalf of our process, and we've learned, in fact, from some of the changes they were forced to make in the U.K. I believe we still have, with respect to the U.K., a better process.

[Penny Priddy, NDP, Surrey North, BC]

I assume we're out of time, so thank you, Mr. Chair.

Thank you, Mr. Minister.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

We will now go over to the government side. Go ahead, Mr. Brown, please.