Public Safety Committee on Nov. 29th, 2007

[Roy Cullen, Liberal, Etobicoke North, ON]

The other factor is that people who go through that process typically arrive in Canada, claim refugee status, and in many cases they'd have a plausible rationale for that, so that if they were sent back they could be in jeopardy. It could be political jeopardy or what have you. But a terrorist or an alleged terrorist who's being detained under a security certificate, the ones who are currently detained at this point in time, still in Canada.... If they've gone back those issues have been dealt with, I guess, and hopefully they live the happy life they're after.

But for the ones who are currently being held under a security certificate, have you researched the arguments they presented as to why they could not go back to their own home country? I would suspect that typically they haven't arrived in Canada claiming refugee status. They probably come here.... But I don't know that for sure.

[Isabelle Dongier]

I think it's really a case-by-case situation.

[Roy Cullen, Liberal, Etobicoke North, ON]

Yes, but it's an important case-by-case situation, and I'm certainly going to make it my business to find out before we deal with this bill in clause-by-clause.

I just wondered, as immigration lawyers and as representing the bars, if you've done any independent research into that.

[Isabelle Dongier]

No, we haven't.

[Hugues Langlais]

I would like to add to that answer.

I have not done any particular research on that point. However, I want to stress that if the Canadian government, in its wisdom, and on the basis of its own analysis and research, arrives at the conclusion that a number of countries it has identified have committed crimes against humanity, practice torture, or that some representatives or members of the government participated, at some point, in crimes, torture or other forms of abuse, returning people currently in Canada to such countries, when Canada knows that they practice torture is already an answer to your question.

I can name two countries where Canada has already denounced certain members of the government for practising torture. I refer to Syria and Haiti.

[The Chair, Conservative, Garry Breitkreuz]

Your time is up, Mr. Cullen.

[Roy Cullen, Liberal, Etobicoke North, ON]

Okay.

[The Chair, Conservative, Garry Breitkreuz]

Monsieur Ménard, do you have any more questions?

[Réal Ménard, Bloc, Hochelaga, QC]

Yes.

[The Chair, Conservative, Garry Breitkreuz]

Okay, Mr. Ménard.

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

You said nothing about the appeal process. Are you satisfied with the right of appeal provided for in the Bill?

[Hugues Langlais]

It is not a right of appeal; it is a principle of judicial review. Nowhere in the Immigration Act is an actual right of appeal granted, except for permanent residents. There is provision for referral to the Immigration Appeal Division. That is the only place in the Immigration Act where there is an actual right of appeal which has the effect of suspending the proceeding. Here, however, there is no right of appeal; instead, there is provision for a judicial review.

Howe would that judicial review work? The way judicial review usually works—and I'm sure many of you already know this—the judge hearing the case has to be informed of everything that has occurred. You have to present an accurate snapshot of the circumstances, as analyzed by the decision-maker. Can I give an affidavit to the advocate that has been appointed, so that he can tell me exactly what happened in the context of the judge's decision-making process? To ask the question is to answer it. That would be absolutely impossible, since a new case has now been opened. A new advocate would be appointed and you would have to start from scratch. It would be absolutely impossible to proceed even with a judicial review in the context of this bill, as currently worded.

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

Everything that is said is transcribed and can certainly be included in an appeal factum, as is the usual procedure.

Of course, when I questioned officials about this appeal, I asked them where they had taken their model. I am aware of certain appeal models, but I wasn't aware of this one. I have to admit that if I were a named person, I would be very concerned about asking someone who has told me I'm in the wrong to explain to me why I wouldn't win in front of a court of appeal. That is what is being asked here.

I think it's a great process for academics and that it might allow us to advance the state of the law, but I don't think it's very reassuring. I was told that this appeal process is the one already provided for in the Immigration Act, whereby the decision-maker determines that questions of general importance are involved and states those questions for consideration by his colleagues, I believe.

[Hugues Langlais]

Yes, exactly. That is the way it works, but it is not a right of appeal that will necessarily result in a stay. It's important to understand that steps are taken and the case is heard on appeal, but that does not result in a stay. That's the first point.

Secondly, I'd like to come back to what you said. There is no stenographer at the Federal Court; that service does not exist. If you want a stenographer, you have to hire one and the stenographer will take notes. However, there is no system of mechanical recording in the Federal Court.

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

Am I mistaken in thinking that if the appeal has been registered, that occurs once the Supreme Court has rendered a decision?

[Hugues Langlais]

The judge hears the case and determines whether the certificate is adequate or not. If he says it isn't, he may decide that a point of law warrants a debate on the principle. He can then certify…

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

I am going to interrupt you there.

I understand all of that, but it seems to me this process does not exist in the legislation.

[Hugues Langlais]

The process for certifying a question does exist in the legislation, yes.

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

I see.

[Hugues Langlais]

It already exists, but not necessarily in relation to the security certificate process, as we understand it.

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

What I'm saying is that the appeal process is introduced in Bill C-3. It was not in the legislation that Bill C-3 is amending.

[Hugues Langlais]

Yes, it is already in the legislation, Mr. Ménard.

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

With respect to decisions on security certificates?

[Hugues Langlais]

No, not with respect to security certificates. An additional element is being introduced here with respect to security certificates, but the actual appeal process already exists.

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

This was done to make it consistent with the Supreme Court ruling. Some time ago, I read and reread the Supreme Court's decision, and it seems to me that one of the criticisms was the lack of an appeal process in the current version of the Act.