Public Safety Committee on Nov. 29th, 2007

[Hugues Langlais]

I'm not sure that was one of the criticisms, but I do know that the process provided for here already exists in… [Technical difficulties-Editor].

[The Chair, Conservative, Garry Breitkreuz]

Mr. Norlock, please.

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

Thank you very much for appearing.

We've had the benefit of probably several hundred years' worth of people who have studied the law all their lives, and quite frankly, we benefit from that.

I am commencing to speak this way because I have a question that may, in and of itself, make you wonder why I say it the way I do, but there is a purpose.

One of the reasons we give to our children for protecting the most dastardly criminals, the worst possible people who exist as human beings, is that in protecting their rights, we somehow are able to protect our rights, because we too may end up, through no fault of our own, being unjustly accused. But when we tell that to our children, we tell them in terms of them being members of our society. In other words, we tell them as Canadians.

I have written down the question because I think sovereign nations have the intrinsic right to decide. I mean, if you're born in that country, you're automatically a citizen, but a sovereign nation has the right to determine who it bestows the privilege of citizenship upon.

I think that when average Canadians who don't have the benefit of years and years of jurisprudence education look upon the world and the need for their government to protect them, and realize that you cannot be the guardian of every single one of the billions of people on earth, they need some clarification and some assurance. That's where I see myself coming from as a legislator. I need to walk back to my constituency and assure those people that yes, we are protecting you.

There are a lot of devious people in this world who get the impression that all you have to do is put your big toe on Canadian soil and mister, you have every benefit this country has to offer, bar no expense. How do you tell the person who carries a lunch pail into a factory every day and works hard and pays taxes that all of a sudden, somebody who the government or an agent of the government who we would hope would act in the best interests of every Canadian.... This might be a devious person who wants to be a Canadian. They say, “Put his butt on a plane and send him back to where he came from”. There is a right way to come to my country and there is a wrong way to come to my country.

In order to meet our international obligations and our obligations as citizens of the world, we say that just in case there's been a mistake here and that the agents of the government have done something wrong, we'll set up a process that will review this person's—as I would rudely put it—carcass being on our soil.

I say those things because the average person out there hears all these esoteric arguments, and I have to be able to go back to that person and sell this. One of the things I'm going to get back is that this is just the legal industry trying to create another level and all these assistants. By the way, I do think a lawyer needs to have some assistance with some of these files, because we see some in our office.

I was just in the House a while ago, and we were talking about the economy and single mothers. These are funds that we're not going to be able to use for our own citizens who are born here.

Tell me what right we have as a sovereign nation to decide who is a citizen and who is not. When you answer that, can you also tell me how western democracies, such as France and Germany, handle these situations?

[Michael W. Milani]

If I can respond in a general way first, the question you pose is a very good one, because you're right: that is a question that is in the minds of many people, and sometimes they articulate it, and sometimes they do not.

Perhaps one model you could follow is to remind people of what happened when our grandparents came to this country. My ethnic background is Italian. In 1905, when my grandfather came to work on the railway, I expect that there were some people here who held views that weren't consistent with opening our arms to people to come to Canada. The Canadian government at the time, and the Canadian people broadly, wanted to do the right thing, which was to have a respectful country in which all were welcomed in appropriate circumstances.

I would say to you that perhaps you might consider, if you get those questions from your constituents, having them think about their own family backgrounds: the Ukrainians coming to Saskatchewan, the Italians coming to Thunder Bay. This country is full of examples of when leaning too far in the other direction didn't achieve anyone's best results.

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

I appreciate that. In 1865 my relatives came from the Kashub area of Poland.

Anyway, we're not talking about the average immigrant; we're talking about somebody the state says has not come to Canada through the legal immigration process, or they have, but because there are several hundred thousand people per year coming in.... All of a sudden we've discovered something about this person that puts not just some doubt, but serious, significant doubt.

It could be a person who surreptitiously sneaks in. And we're not just talking about terrorists. It could be people in organized crime, or espionage agents. They've come into our country, not on an airplane, but all of a sudden their body is on our soil. We listen, and we say, well, you know.... Of course they're going to say they're going to be tortured if they go back, because they don't want to go back.

I'm not talking about your relatives who have come here. They went to the consulate or the embassy, filled out the papers, and they came across. That's the average. As Mr. Cullen said, we're talking about 28 people over a period of 30 or 40 years. We're going to spend a heck of a pile of resources making sure that....

As I said, and I go back to when I started this statement, I understand the concept, but it's not as easily articulated as you've mentioned. Your relatives probably came across through the right process: the immigration process. There's a difference here, I think.

[Frederica Wilson]

I would just add to Mr. Milani's answer to say that we're not talking—and I'm not addressing myself primarily to the resource question but to the process question—about the government or a sovereign nation having an inability to decide who should be allowed into the country; we're talking about having procedures that respect the rule of law, to make those determinations in difficult circumstances.

In fact Canada does have the right to make that determination. What we're arguing for here is that it does so in accordance with due process, in a way that does as little damage as possible to the fundamental underpinnings of our legal system, which we have great reason to be proud of in Canada. To deviate from it too much will tarnish our reputation and tarnish our faith in a system of justice, which makes mistakes, as one of my colleagues from Quebec said, even when there is due process.

We should have a goal to minimize those errors. They may have terrible consequences, they may have them only occasionally, but would any one of us feel comfortable about being responsible for their having denied somebody due process?

[The Chair, Conservative, Garry Breitkreuz]

We're over the time allowed, but if you have a brief response, go ahead.

[Hugues Langlais]

In order to give an appropriate answer to the question you raise, we would have to go back to 1982, when a document entitled “The Constitution Act, 1982”, incorporated the Canadian Charter of Rights and Freedoms, was enacted. The answer is right there: it uses the term “chacun” or “everyone”, in English. Therefore, it applies to everyone living in Canada.

You cannot have different legal systems for people living in Canada. There is one legal system, and if we want to exclude people, then we need to name the people that are excluded. Then we can say that those people are not entitled to constitutional protections and guarantees. But, in that case, we have to officially state, for all the world to hear, that Canada is refusing to provide certain guarantees to certain people. Let's not bury our head in the sand. Either this document is valid or it isn't. It has been in effect since 1982, and I believe it has a certain force which, unfortunately, is binding.

[Isabelle Dongier]

I would like to say briefly that I guess one way you can reassure your constituents is by realizing that our immigration act contains a number of provisions that allow us to get rid of those people we don't want to keep in the territory.

You can be declared inadmissible for various reasons—very minor criminality, very serious criminality, medical reasons, or if you gave some false information in the course of your arrival in Canada. All those reasons can be used to send you out of Canada. Therefore, we have very useful tools in the act. Our officers are using them every day, don't worry. There are lots of people who are either refused admission when they arrive from abroad at the border, or at the airports. They are sent back because we discover something in their history that we don't like and we don't want to let them in.

There are people who are never able to even board a plane, because of a criminal background. We do protect the country and we do use a large number of resources to do that.

The specific situation we're talking about today in the Bill C-3 context is in situations where we don't want to put on the table all the evidence we have against these people, because we want for various reasons to keep it secret. That's when it becomes more difficult to meet the requirements of the charter that would still give the person a fair hearing, which is one of the fundamental values we were talking about earlier. We're not ready to get rid of that value. That's what I think the legal community is telling you.

In spite of the cost and in spite of the efforts, it's something Canadians are attached to because it's applicable to them, to their neighbours, to their daughters or sons. That's something we're not ready to get rid of, in spite of the special mechanisms it may require.

[Pierre Poupart]

I would just like to take two minutes, if you don't mind.

What you could say to your constituents—and I don't believe that there is a single human being in Canada who would not understand this—is exactly what the Supreme Court stated in the Oakes case, shortly after the adoption of the Canadian Charter of Rights and Freedoms. You will find the relevant passage in the report of the working group that has been provided to you. It talks about the presumption of innocence under the criminal law but, in my opinion, the same comments apply analogously to a situation such as the one that arises with security certificates:

An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other [...]

[The Chair, Conservative, Garry Breitkreuz]

Excuse me for a moment. Please slow down.

[Pierre Poupart]

I did not want to take too much time. I will say it slowly.

I'll start over again, very slowly, because it is truly a magnificent statement. In my humble opinion, it deserves your support.

An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other social, psychological and economic harms. In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that, until the State proves an accused' guilt beyond all reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and social justice. The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law-abiding members of the community, until proven otherwise [beyond a reasonable doubt].

That applies analogously to a situation which is certainly much more likely to result in disastrous consequences for an individual who is to be branded a danger to national security when, in fact, even for the most minor offence of shoplifting, the presumption of innocence, which flows directly from our conception of human dignity, requires that this be proven beyond a reasonable doubt. As lawyers, we are deeply convinced that this government, this legislative assembly, could find a way to ensure that the burden of proof be raised to reflect principles which are at least as evocative as those associated with the standard of proof beyond a reasonable doubt.

[The Chair, Conservative, Garry Breitkreuz]

Okay.

You were way over. You should have had a seven-minute round there.

Ms. Brown, please.

I didn't want to cut off the witnesses.

[Bonnie Brown, Liberal, Oakville, ON]

Thank you, Mr. Chair.

I must say I agree with most of what the witnesses said this morning and again this afternoon. It's a great pleasure to have you here, because you are confirming the doubts we have about the charter soundness of this bill. I agree with the detail of your work a great deal.

But I must say I'm surprised the Canadian Bar Association, sprinkled through its work, talks about “evidence”, when this is really an administrative process not attached to the Criminal Code and not requiring the standards of evidence required by the Canada Evidence Act.

We heard this morning the pseudo evidence presented is often a series of narrative reports written by different people and summarized later, or one could say cherry-picked, with parts deleted by another writer. So it's almost as if a series of writers put this together. Let's say an agent in Damascus writes something about a person and that's passed on and then an agent in Paris writes something else and then an agent in Saudi Arabia writes something else, etc. It was described to us as a series of reports.

So it would seem to me that rather than using the word “evidence”, which gives credence to the process, which makes Canadians believe there's something meaty there when maybe there isn't, we might be better to use words like “the narrative about this person”, or “the reportage about this person”, or something like that, because the word “evidence” has connotations in Canada.

Would you agree with me, Ms. Dongier?

[Isabelle Dongier]

I think when we use the word “evidence” in our submission, we are not referring at all to the summary itself. We are talking about.... It can be documents, it can be testimony, it can be other kinds of information CSIS would have obtained in the course of its inquiries to reach the opinion that a person is involved in terrorist acts.

[Bonnie Brown, Liberal, Oakville, ON]

Well, we're told that it's less documentary than it is reportage or the writing of an agent abroad.

[Isabelle Dongier]

It can be all kinds of things, you know.

You're going to have reports from officials abroad who've done inquiries or who have met with witnesses. It's going to be a wide range of different type of evidence.

Now, there are also situations in which a very remote source of information is bringing--

[Bonnie Brown, Liberal, Oakville, ON]

Yes, and based upon that idea, what would you think, in the way of resources available to the special advocates, about including not necessarily full-time staff, but at least the ability to pay for and get what I call geopolitical information about a country where the events took place or in cases in which the reportage, the narrative, was written by some agent who may not have been a Canadian agent?

With regard to your list of wants and needs for this office of the special advocate or this group of special advocates, it seems to me they need a lot more than one other lawyer and a secretary to work with. It seems to me they need experts in a variety of fields. You might end up needing financial experts, because it may not always be terrorism.

[Isabelle Dongier]

Absolutely.

[Bonnie Brown, Liberal, Oakville, ON]

It may be financial shenanigans, but international in nature.

[Isabelle Dongier]

Yes, there may definitely be circumstances in which, according to the facts of the case or the profile of the case, you're going to need to do extensive research on various topics.

[Bonnie Brown, Liberal, Oakville, ON]

Yes.

Okay, I have one more question on your thing about overextended detention. There's a little bit of a farce when the government pretends it's going to deport somebody, but knows it's not going to deport them because there's capital punishment or torture in that country.

For how long do you think the government should be able to play that game without either moving on to charges under the Criminal Code or to release? We have somebody who's now been in detention for seven and a half years. Is that too long, in your view? Should it be shorter? Should we put a limit of let's say four years on this kind of detention in a prison?

[Isabelle Dongier]

I don't think there is a magic number of years to take as a specific reference.

Our recommendation would be that once it is determined that this person cannot be removed—cannot be sent back home—for various reasons, then we cannot just say that we have another couple of years to keep this person in detention or that we should not detain her any longer. At that stage, once it is determined that we cannot send that person back, you have to handle her differently. You have to put her back into the regular system of the Criminal Code.

[Bonnie Brown, Liberal, Oakville, ON]

Thank you very much, Mr. Chair.

[The Chair, Conservative, Garry Breitkreuz]

Okay.

You may have one short question, Mr. Dosanjh. Mr. Dosanjh is the last person on my list.