Public Safety Committee on Nov. 29th, 2007

[Isabelle Dongier]

This individual would be charged under the Criminal Code—

[Penny Priddy, NDP, Surrey North, BC]

With what?

[Isabelle Dongier]

There are a number of charges under various categories of offences.

Then, if some evidence is to be protected or kept secret, the judge would have to review the evidence, balance the need for protection versus the inconveniences for the individual to access or not access the evidence, and then decide whether it can be disclosed or not. That's a different process, then, obviously.

[Penny Priddy, NDP, Surrey North, BC]

I realize I'm asking a difficult question because there are no details to it, but what would be the range of penalties? If we assume this person is convicted of having this plot and having the materials to do so and having a plan in place and all of that, what would be the range of penalties that might exist?

[Pierre Poupart]

Committee members are obviously well acquainted with the provisions on terrorism, that can be found in sections 83.01 and following of the Criminal Code. It is clear that the sentences that can be imposed on such individuals vary from a term of imprisonment of 10 years up to life. Sentencing would be carried out on the basis of the usual criminal law criteria—in other words, based on the burden of proof, which is proof beyond a reasonable doubt. That is clearly not the case for individuals that the system purports to label as a “danger to public safety”.

[Penny Priddy, NDP, Surrey North, BC]

Thank you.

I think I know from what most of you have said, but I would like to see this on the record. I am asking each one of you to just answer yes or no. Do you support or oppose the security certificate process as proposed currently in Bill C-3?

[Michael W. Milani]

The federation opposes it.

[Isabelle Dongier]

The CBA opposes it and recommends major changes.

[Pierre Poupart]

The position of the Barreau du Québec is completely consistent with the one that has just been expressed. In other words, we are opposed.

[Penny Priddy, NDP, Surrey North, BC]

Oui, merci.

Do I have some time left?

[The Chair, Conservative, Garry Breitkreuz]

You have about two minutes.

[Penny Priddy, NDP, Surrey North, BC]

When the question was asked earlier—and I think it was asked of the CBA or answered by the CBA—about additional resources that might be needed by an individual who would choose to take on such a case, I didn't know if anybody else wanted to add to that, whether there were any other resources people had. People talked about an additional lawyer, some secretarial support, maybe some security people. I'm not sure that was the question asked.

Was there anything else anybody wanted to add to that, since it seems to be a good opportunity to have that message go to the minister, through the committee, of course?

[Hugues Langlais, Lawyer, President of the Advisory Committee on Immigration and Citizenship, Barreau du Québec]

If I could just add something, having dealt with cases of this type, I would say it is inevitable that one would be faced with a massive amount of information to process. One head could do some of that, but two, three or even four heads sharing the burden is preferable.

It would also be preferable to have access to a certain number of selected experts. Of course, it would depend on one's position, but given the position that has been articulated by the Barreau du Québec, an individual would find a lawyer, and the latter would take the necessary steps to retain the services of the experts he required, in keeping with the spirit of the proposal. It would then be up to the individual to find the resources, since this would obviously be quite costly.

The hope is that both parties would have the same weapons. If you are battling an army of 100, you want to have resources on your own side as well.

Thank you.

[Penny Priddy, NDP, Surrey North, BC]

Thank you.

We can have one more, possibly. Go ahead.

[Michael W. Milani]

I was just going to add that the concept you're speaking of is very important. The federation would recommend, with respect, that the concept of adequate resources be built into the act itself and not left only to the regulations. Regulations may provide the detail, but the concept of an adequate system is so fundamental to this working fairly that our respectful submission is that it should be in the act itself.

[Penny Priddy, NDP, Surrey North, BC]

I'll have to come back to that. Thank you.

[The Chair, Conservative, Garry Breitkreuz]

We have Mr. Mayes now from the government side.

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

Thank you, Mr. Chair.

One of the things I noticed as I looked through the bill and the issuance of the certificates under section 77 was that it talks about being reasonably informed of the case against, and it talks about the judge determining whether the certificate is reasonable, or adequate, as I would understand. To me that means there would be sufficient content in the claim that there's a reasonable determination that this person should be detained. Is that correct? Is that what the act says? Okay.

We might have a detainee who is not necessarily a wanted criminal or who does not necessarily have a past record of a conviction or who is not known to have committed acts that have violated human or international rights, but due to the documented association evidence, that person could be determined to be a threat to public safety and security. Would you agree with that?

So you have all of the documentation presented to the detainee and the advocate, and then this person might, for instance, get involved with organized crime. Perhaps they have been observed in their country of origin, where maybe their tax documents say they're a plumber, but they're living the lifestyle of a lawyer. So they suspect that this person is being supported by criminal activity in his association with those people in the country of origin, but he has never been convicted.

If they landed in Canada and this information was gleaned, there wouldn't be any substantial conviction or evidence against this person, because there hadn't been any in the country of origin, but it would not necessarily be desirable to introduce this person to Canadian society because they could pose a safety and security threat. How would you deal with that?

[Michael W. Milani]

Sir, I would say that the process is intended to allow the proper determination to be made by the judge hearing it. I would submit that what you're hearing from the federation and our colleagues today is that in order to ensure that that ultimate result is handled in the best possible way, protections need to be built in.

So in direct answer to your question, that will be a determination for the judge. What I believe you're hearing us say is that with some modification to the bill, the process of allowing the judge to do his or her job will be in place.

[Pierre Poupart]

Perhaps I may add at this moment....

I would just point out that the provision in subsection 77(2) of the Bill relies on a summary of the evidence, which would give the injured party an opportunity to be adequately informed of the case against him. Here, the assumption is that you have a summary of the evidence, evidence gleaned from a number of different sources, including the Canadian Security Intelligence Service.

Let's take another completely hypothetical example, which we haven't seen in the media for a number of years now. An individual, whom we will call Arar, for the purposes of our discussion, gave information under torture in a given country, and that information was used against another individual, here in Canada, with a view to deporting him. Are we talking here about information, evidence and intelligence that is credit-worthy, based on the test that appears further on in the legislation? That is the fundamental question we should be asking.

When you are dealing with real evidence, the question does not arise, because the Criminal Code explicitly states “beyond a reasonable doubt”. However, when you have information or intelligence obtained through association or in a variety of manners, including under torture, can you conclude that such information is truly credit-worthy and can be relied upon to arrive at the kind of conclusion that is sought here?

That is the caviat the Barreau du Québec feels is important—namely that the information obtained in that manner is not valid, or not sufficiently valid. So, as far as we are concerned, that simply is not enough to take steps to deport someone. We must not forget that there is a danger that we will be sending people back to a country where they will be subject to torture and capital punishment. For that reason, there is a need to be extremely cautious when assessing the evidence. Although such individuals may be considered undesirable, the burden of proof should be no less than what is acceptable in a free and democratic society.

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

To follow up on that, do you think that full disclosure is going to make certain that this is not going to happen anyway? I'm saying it might not be in the full disclosure that the evidence was taken through torture, implicating the detainee.

[Pierre Poupart]

Mr. Chairman, even when there has been disclosure of all the evidence and a standard of proof as rigourous as proof beyond a reasonable doubt has been applied, there have been miscarriages of justice that have resulted in absolutely horrendous human catastrophes. With all due respect, the very least that we should require, if we want to claim that someone is a danger to national security—which is already quite a significant charge, as I'm sure you will agree—is that the process reduce, to the greatest extent possible, the risks of stamping a human being with such a seal of infamy, without having taken all the necessary precautions to ensure that all the facts are known and that the individual in question has been properly represented. I see that as the very essence of a society that does not treat life, liberty and security of the person lightly.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

We'll now come back to the second round and begin with Mr. Cullen, please.

[Roy Cullen, Liberal, Etobicoke North, ON]

Thank you, Mr. Chair.

Thank you all for coming today.

I notice that there are some of you who are immigration citizenship lawyers, so I wanted to focus on that. When you look at security certificates and their history, they first came into existence in about 1976, and from 1991 until today there have been 28 security certificates issued. Of those, 19 individuals have been removed from Canada as a result of a security certificate.

You know how the security certificates work. They're termed a three-walled detention centre because the people can leave Canada at any point in time.

Have you done any research into the people who have actually gone back to their home countries? Or it could be a third-party country. Have they peacefully settled back into those countries? And for the ones who haven't and who argue that if they head back to their home country they'd be subjected to torture or jail or capital punishment, have you researched what the basis of those arguments is?

I raise it because of course they are free to leave at any point in time, and in my riding I have a large number of constituents who are dealing with immigration matters. People have come to my office who have maybe claimed refugee status, been denied, appealed, etc., and they're about to be removed and they set in process this risk assessment and argue that if they return to their home country they'd be tortured or murdered or whatever. And in some cases, frankly, the arguments aren't that plausible, but there is a process they go through.

If their country, the country they came from, is not prepared to accept them back, or if they do they'd be tortured or imprisoned or subject to capital punishment, do you have any idea of the profile of those people and why these countries would not want to have them back? Have you done any research into that?

[Isabelle Dongier]

No.

We cannot either quote statistics of how many of those who were deported or sent back home or went back home have been in fact detained or tortured or killed. I don't think anyone has access to or has compiled that type of information. Perhaps you could ask Amnesty International, but I don't think that anyone at the table has this information.

In regard to what you were mentioning about the risk review before deportation, the number of people who are in fact found at risk after having been denied refugee status is very low. The criteria that Immigration Canada is using to assess those cases are very strict, and a very small number of people are finally accepted in Canada and can stay at the end of that process. Most of them will in fact be deported.