Public Safety Committee on Dec. 4th, 2007

[Janet Dench]

It's not clear in the legislation as it stands. It's far from clear, and one of the things that the government has done in Bill C-3 is to take out the automatic judicial review that occurs currently in the legislation.

A PRA decision in the security certificate process is automatically subject to review by the Federal Court judge. They've removed that, so they've actually taken out some sort of connection between those two processes.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

They're now parallel.

[Janet Dench]

They're now parallel, and there's no automatic opportunity for the judge to review.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

What was the second point you were making?

[Janet Dench]

The second point is to do with the introduction of section 115 of the Immigration and Refugee Protection Act as a process that can happen in parallel to the security certificate process. Section 115 is not a process at all; it is the statement of the non-refoulement principle. It's an important statement, which incorporates into Canadian law our obligation not to send refugees back to face persecution.

Why have they included section 115 as a process that can happen in parallel to the security certificate process? It appears it's because they are using section 115 quite wrongly and perversely, from our perspective, as a way of essentially stripping someone of the refugee status they already have. We find that extremely problematic.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much, Mr. Dosanjh.

We'll now go to Monsieur Ménard.

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

Thank you.

If we were to adopt the bill in its present form, do you think that it will end up back in the Supreme Court and that the Supreme Court will quash it again? If so, what do you think would be the main reason for that?

[Sharryn Aiken]

Thank you for your question.

As I began to articulate in my brief remarks, and as our colleague from the B.C. Civil Liberties Association correctly noted, in our view the provisions of Bill C-3 will absolutely find their way back to the Supreme Court. They will not meet the requirements of section 7 of the charter. In CCR's views, Bill C-3 is deeply flawed, and it is not compliant with the requirements of the charter.

To focus specifically on the proposed special advocate model, both in a security certificate context and a section 86 context, I think it's very important to note that the Supreme Court, in Charkaoui, did not explicitly endorse the special advocate model. It cited the model, along with a range of other protections, as examples of procedures that are less rights-infringing than a security certificate procedure that was currently in place and under examination by the court.

The court did not say that the special advocate model, and certainly the model proposed in Bill C-3, would meet the requirements of section 7.

[Murray Mollard]

May I add to that, Monsieur Ménard?

I think it's really important to emphasize that the court was clear that the liberty infringement isn't minor; it's actually very, very significant. I think the court is sensitive now, and it has been quite sensitive over the years, to Parliament pronouncing...especially after a decision is written.

Although, quite frankly, I think Madam Chief Justice McLachlin's decision is fairly wide open. I think it simply says there are some other alternatives that are less infringing; it doesn't go into a really detailed discussion of those.

The court is going to give you some latitude, but I would suggest that given the seriousness of the infringement, it is going to be very searching when it comes to looking at any proposal you put forward, as parliamentarians, about special advocates. I think you've heard testimony from Mr. Waldman and Mr. Forcese that goes through a variety of points, and we can go through those in more detail if you want.

Even if you're going to take the special advocate model--Ms. Aiken has indicated they don't endorse that per se--you're going to have to make it the best possible special advocate system in the world if it's going to really pass muster. And I don't think it is.

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

When I read the Supreme Court decision, I don't get the impression that the court is saying that it is impossible to have a rights regime that would enable us to deem inadmissible any person considered dangerous because he is a potential terrorist, given the type of terrorism we are currently facing, which is a far cry from the FLQ, and much more advanced than the threats at that time. However, the nature of this system is such that it will be based on secret information provided by allies, on the condition that it remains secret, and that will come from infiltrated agents whose lives would be in danger if we were to reveal their names or knowledge. The war on terrorism, contrary to the fight against organized crime, requires that its investigation methods be kept secret so that they can be effective against terrorists.

So for the Supreme Court, there must be a way of putting that in legislation. I think you have given us some potential solutions. What suggestions would you like to make to ensure that if this security certificate legislation ends up back at the Supreme Court, the Supreme Court will uphold its provisions.

[Philippe De Massy]

I would like it to be clearly understood that I am making this remark based on the fact that the league is against secret evidence. As soon as a government decides to deprive an individual of his or her liberty, it must tell this individual why and what it is accusing him or her of, what kind of evidence it has. In terms of justice, we do not see how it would be possible to get away from this position. Secret evidence in itself is problematic and is not compatible with the exercise of justice.

That said, it must be noted that the current amendments do not give the special advocate any right to communicate with the person named, to discuss matters with him or her or to provide information. I think that Murray described the situation to you very well. As lawyers, you and I know full well that this contact with the individual whose freedom has been jeopardized is absolutely fundamental, essential so that we're able to test the evidence presented against him or her.

[The Chair, Conservative, Garry Breitkreuz]

Does anybody else have a brief comment? We have twenty seconds left.

[Sharryn Aiken]

If I may just point something out, the government has suggested that it's sufficient in Bill C-3 that the judge has broad discretion to make numerous orders. It's the CCR's view, and I think the view of my colleagues, that it's not sufficient to respond to these concerns by pointing to the discretion vested in a judge. The law needs to address very specifically the protections and safeguards required by due process.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Ms. Priddy, please

[Penny Priddy, NDP, Surrey North, BC]

Thank you, Mr. Chair, and my thanks to the witnesses for appearing today.

At the beginning with witnesses, I just try to put a bit of context around where my questions will come from, because the NDP is opposed to this piece of legislation. For a variety of reasons, we think security certificates violate some very fundamental rights that people have. We would prefer to see these things dealt with under the Criminal Code, which some of you have talked about and some of you have not. Even with a special advocate, we don't think there's any way to guarantee the rights that people have.

I think I heard two groups speak to having this under the Criminal Code or looking at this as a criminal offence, as opposed to an immigration transgression or immigration offence. Mr. Mollard, I'm not sure if I heard you speak to it or not, so I'd like to ask if you have an opinion on this.

[Murray Mollard]

Thank you.

It is indeed a question that has been debated carefully by our organization. As with any organization that defends freedom of expression, I would say there are a variety of points of view. I would think that in an ideal world, our members and our association would like to see a situation in which....

Again, I pointed out the testimony of Mr. Macdonald. If you really want to have a strong anti-terrorism policy, you really want to be able to not just bring information that suggests there's a person who has a particular association, that he was here at this particular time, etc. Given a standard of proof that is considerably lower here, it is really going to allow our security apparatus to take an investigation not very far, in a sense, or not as far as we really want it to go. We would want, in fact, our security apparatus to go as far as possible to actually prevent terrorism. And I think Canada has obligations not just at home, but abroad, internationally, to make sure we prosecute to the full extent possible those people who are actually engaged in terrorism.

Certainly one answer is to prosecute them as criminals, to go the full length. Don't shortcut. Don't short-circuit our security apparatus from actually taking the time to investigate people they are concerned about so that they can provide evidence. And this goes to Monsieur Ménard's point that, in the alternative—and certainly this bill is all about the alternative, the special advocate process—if you're going to do it, you're going to want to do it in a way that's absolutely the model for the world to look at. At this point, it's not the model the world would want to replicate.

I think we've touched on some points and I have other points to touch on, but I'll leave it there for a moment unless you want me to elaborate.

[Penny Priddy, NDP, Surrey North, BC]

Do other witnesses want to speak to their held views about having it under the Criminal Code, as opposed to immigration? I realize the standard of evidence, of course, is different.

[Dominique Peschard]

Pursuing it in the same direction, from a practical standpoint, there are presently five people who are under security certificates. I find it hard to believe that, from the point that the police or security services believed these people represented a threat, we did not have the means in Canada to monitor these people, find out what their activities were, and end up having a solid proof of their guilt, of participating in activities, and, in a way of proceeding that way, finding out the networks they belong to and thus achieving better success in the fight against terrorism.

When the police investigate organized crime, they don't seize the first person they suspect. They follow a trail and establish links in order to net in the maximum of the organization. It seems to me that the same philosophy should preside over the fight against terrorism.

[Janet Dench]

We mention this in our brief, and I just want to highlight the concern we have about the differential treatment of citizens and non-citizens. Bearing in mind that immigrants and refugees are often subject to scapegoating, prejudices, and stereotyping, it is important that we try to avoid that as much as possible.

The use of immigration measures, in fact, only has the effect of reinforcing these sorts of negative stereotypes. Why? There can be citizens who may raise the same concerns as those people who are currently under security certificates, but because they're citizens they cannot be made subject to a security certificate. So what is presented to the Canadian public all the time is non-citizens, immigrants, and refugees who are presented in the media as being the potential threats to Canadian security. That works entirely against the objective of welcoming newcomers and integrating new Canadians.

[The Chair, Conservative, Garry Breitkreuz]

You have just a little more than a minute.

[Penny Priddy, NDP, Surrey North, BC]

Good. A minute.

I can't remember which individual from the refugee organization made a comment that the public is skeptical about the information received from the RCMP or CSIS, but you gave a variety of examples. I know there's not much time left, but would you want to recommend a model of oversight?

[Sharryn Aiken]

Absolutely. The CCR has urged the government to adopt much more expansive oversight mechanisms and measures to ensure accountability, and that's consistently included in all our briefs.

[Janet Dench]

And to underline in particular in relation to the Canada Border Services Agency, which is not subject to any kind of external review, although it has the power of arrest and detention.

[Dominique Peschard]

Just one word. Justice O'Connor put forward an extensive review mechanism, which we're still waiting for the government to implement, and it reviews all the agencies, those who are involved in intelligence and those who are involved in police work.