Public Safety Committee on Dec. 4th, 2007

[The Chair, Conservative, Garry Breitkreuz]

I'd like to bring this meeting to order.

This is meeting number 7 of the Standing Committee on Public Safety and National Security. We are continuing our study of Bill C-3, an act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another act.

I want to make a brief announcement before we turn to our witnesses. For the members of this committee, if it's all right with you, we have arranged a meeting for tomorrow afternoon, Wednesday, December 5, from 3:30 to 5:30. We will have three witnesses: Amnesty International, the Canadian Arab Federation, and Human Rights Watch.

Does anybody have a problem with that, or can I go ahead and line up that meeting? This is in relation to a motion that was put before the committee.

Mr. MacKenzie.

[Dave MacKenzie, Conservative, Oxford, ON]

Mr. Chair, certainly we would agree with that.

The other thing I would ask is that the clerk attempt to put together another meeting on Thursday morning from 9:30 until 11:30.

[The Chair, Conservative, Garry Breitkreuz]

Nine or 9:30? We usually meet from nine to eleven. Is that...?

[Dave MacKenzie, Conservative, Oxford, ON]

It doesn't matter, whatever--a two-hour meeting on Thursday morning. And I think Mr. Dosanjh may have indicated to the clerk those people who were considered to be a priority, if they're available.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

I'm just looking at who we haven't heard from. I think the two committees for Harkat and Charkaoui we should hear from, and any other person who wants to come and make a presentation that day.

I think it's important to ensure that people feel they've been heard.

[The Chair, Conservative, Garry Breitkreuz]

Any further discussion?

Mr. MacKenzie.

[Dave MacKenzie, Conservative, Oxford, ON]

We would concur with that.

[The Chair, Conservative, Garry Breitkreuz]

All right.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

If the committee concurs that we have the meeting tomorrow morning and one Thursday morning, in addition to the prescheduled meetings, I would withdraw the motion I had submitted.

[The Chair, Conservative, Garry Breitkreuz]

Let's deal with one thing at a time.

Does the committee concur with those extra meetings...?

Ms. Priddy, please.

[Penny Priddy, NDP, Surrey North, BC]

Yes, I do concur. I just wanted to congratulate people for bringing that forward. Thank you.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

Any other comments?

All right, I take your silence to be agreement. Okay.

We'll turn this over to the clerk. A few have been checked off, so I will let you do that.

The other thing was.... What was the second part of your motion? Agreed to the extra meetings, and....

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

The motion is withdrawn.

[The Chair, Conservative, Garry Breitkreuz]

And the motion is withdrawn.

You all agree to that? Yes.

I knew there was a second part to it.

We welcome to the committee today three groups. We will hear first of all from the Ligue des droits et libertés, secondly from the Canadian Council for Refugees, and thirdly, the B.C. Civil Liberties Association.

Welcome, ladies and gentlemen. The usual procedure at this committee, if you're not familiar with us, is we give you approximately ten minutes each for any introductory comments you have, and then questions and comments will follow, probably from the members of this committee after you've all given your presentations.

Ligue des droits et libertés first, please.

[Dominique Peschard, President, Ligue des droits et libertés]

My name is Dominique Peschard and I'm the President of the Ligue des droits et libertés. I will be sharing my 10 minutes with Mr. Philippe Robert De Massy, who is also with the Ligue des droits et libertés.

Mr. Chairman, ladies and gentlemen members of the committee, we are pleased to have the opportunity to appear before the committee on this very important issue. Indeed, in our opinion Bill C-3 raises fundamental human rights issues. On the other hand, it is with a certain distress and true displeasure that we were made aware of the whole consultation process of the committee before the bill is sent to the House for its third reading.

We were pleased to learn that an additional meeting will be held in order to allow Amnesty International, Human Rights Watch and the Canadian Arab Federation to testify. Nevertheless, some of the groups who asked to appear will not be heard by this committee, particularly those groups who are supporting individuals who are presently under a security certificate and groups supporting communities which are particularly targeted by security certificates and concerned with immigration issues and anti-terrorist measures in general. We would ask that you review this decision to ensure that all the groups and organizations who wish to be heard on this matter will have an opportunity to testify before you.

I will now focus on Bill C-3.

Until recently, Canada has always been considered in the world as a leader in the area of human rights. This unfortunately seems to have changed since the turn of the century, more particularly since September 11, 2001. Yet, the Immigration and Refugee Protection Act is one of the only statutes, to our knowledge, to specifically refer not only to the Canadian Charter but also to the international instruments.

Section 3(3) of the Immigration and Refugee Protection Act states:

(3) This Act is to be construed and applied in a manner that [...] (d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination [...]; [...] (f) complies with international human rights instruments to which Canada is signatory.

The objective of Bill C-3 is to eliminate from the Immigration and Refugee Protection Act the aspects which were judged unconstitutional by the Supreme Court in the Charkaoui case. Does the bill meet the requirements expressed by the court in an appropriate manner?

Let us recall some unequivocal statements in the decision. Paragraph of the decision, which deals with security certificates, reads as follows:

25. At the same time, it is a context that may have important, indeed chilling, consequences for the detainee. The seriousness of the individual interests at stake forms part of the contextual analysis. As this Court stated in Suresh: "the greater the effect on the life of the individual by the decision, the greater the need for procedural protections to meet the common law duty of fairness and the requirements of fundamental justice under section 7 of the Charter" (paragraph 118).

In paragraph 27, the court states:

27. The procedures required to conform to the principles of fundamental justice must reflect the exigencies of the security context. Yet they cannot be permitted to erode the essence of section 7.

The judgment describes the main element incompatible with the Charter as follows:

139. [...] section 78(g) allows for the use of evidence that is never disclosed to the named person without providing adequate measures to compensate for this non-disclosure and the constitutional problems it causes.

The primary innovation of Bill C-3 is the creation of the role of the "special advocate"; the expression "défenseur" used in the French version may be misleading, as it seems to imply that the person playing that role is truly the attorney as a named person. Does Bill C-3 actually offer "meaningful and substantial protection"—as was stated in the Charkaoui decision—compatible with the principles of fundamental justice? In our opinion, the answer to that question is no.

I will now give the reasons why we feel that these objectives have not been met.

The named person and his or her attorney will continue not to have access to the evidence adduced against him or her and will not be in a position to test this evidence in an adversarial proceeding affording a full answer and defence.

The special advocate is not bound by lawyer-client privilege and cannot really represent the named person since he or she cannot communicate with the person without permission from the judge and cannot share the secret evidence presented to the judge.

The cross-examination of the CSIS agents will probably be useless since, according to the testimony of former British special advocate Ian Macdonald before this Committee, the members of secret services usually have no personal knowledge of the facts they put forth as evidence.

A judge can receive as evidence elements which would not be admissible in a criminal trial: hearsay, opinions and so on.

There is nothing in Bill C-3 to prevent the judge from unknowingly receiving evidence or testimony obtained under torture and there is nothing the named person can do to oppose that.

The Ministers issuing the security certificates control the evidence: they are under no obligation to present the entire evidence, more particularly those elements of proof which would exculpate the named person. Yet, we know that CSIS destroys evidence. Recently, Adil Charkaoui, one of the persons under a security certificate, has addressed the courts upon his learning of the destruction by CSIS of the recordings of testimonies of which only written summaries were produced in evidence.

[Philippe De Massy, Lawyer, Ligue des droits et libertés]

The named person can still be incarcerated indefinitely, without trial, whereas in a criminal trial he/she would know the criminal charges, would be able to present a defence, and would be either acquitted or sentenced to a finite prison term. That's precisely what the Supreme Court denounced in Charkaoui.

13. [...] For both foreign nationals and permanent residents, the period of detention can be, and frequently is, seven years. Indeed, Mr. Almrei remains in detention and does not know when, if ever, he will be released.

Since this judgment was handed down almost a year ago, Mr. Almrei remains detained in Kingston.

The burden of the proof is still the mere obligation to establish "the reasonableness of the certificate", which is a derisory burden in comparison to the burden of proving "beyond a reasonable doubt", which is the requirement when a person is liable to lose his/her freedom.

Point number nine. It remains possible to send a person to torture—despite the fact that Stockwell Day denied this when he appeared before you on November 27 last. On this question, it is important to point out that the United Nations Committee against Torture has just issued a blame to Canada, on November 16, in the case of Bachan Singh Sogi, an Indian national that Canada expelled in July 2006, even though the Committee against Torture had asked Canada on two occasions to withhold deportation until such time as it had examined the complaint. The committee concludes:

The committee concludes:

The Committee against Torture [...] is of the opinion that the expulsion of the applicant to India on July 2, 2006 is in violation of articles 3 and 22 of the Convention.

You are aware that article 3 does not provide for any exception. This expulsion to place under the responsibility of Minister Day.

You are aware of the recent successes against organized crime and biker gangs in Quebec. Many were condemned and are now serving jail sentences. This was accomplished using criminal procedures and evidence that complies with traditional rules. Yet, in this case, as in the case of antiterrorist activities, sensitive questions are raised regarding the need to protect the identity of police informers and to conceal police investigation techniques and strategies.

We therefore believe that instead of having recourse to security certificates and secret evidence, we should rely on traditional criminal procedures and thus ensure all persons on Canadian territory that they will not have their freedoms and rights infringed upon without tested and admissible evidence, without a fair trial, and a full and complete defence.

Especially when by expelling people Canada considers to be too dangerous to remain here, they are sent to other countries where they are just as dangerous! How does this enhance security?

In conclusion, let us not repeat historical errors.

Each time in the past we have allowed the erosion of traditional safeguards, consequences have been disastrous and have forced the Canadian government to recognize its errors, to apologize and sometimes offer compensation. Just take, for example: the expropriation and imprisonment of Canadians of Japanese descent during the Second World War; the hundreds of needless and unjustified arrests and imprisonments during the 1970 October Crisis in Quebec; and more recently, the responsibility in the extraordinary rendition of Maher Arar to torture in Syria by the United States.

Therefore, the Ligue des droits et libertés recommends: the abolition of security certificates and of the possibility of depriving a person of freedom and expelling him/her from Canada on the basis of secret evidence; that Canada's participation in the struggle against terrorism be governed by due process and non-discriminatory access to a fair and open trial in compliance with international law.

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

We'll now go to the Canadian Council for Refugees, and I ask you to introduce yourselves before you begin your presentation.

Thank you.

[Janet Dench, Executive Director, Canadian Council for Refugees]

Thank you. My name is Janet Dench, and I am the Director of the Canadian Council for Refugees. I will be making this presentation with my colleague Sharryn Aiken, the former President of the Canadian Council for Refugees.

The CCR, an umbrella organization with more than 170 members throughout Canada, has been following the security certificate file for many years. We took a stand in the 1990s against rights violations inherent in the certificates. We commented on amendments made to the legislation during consideration of Bill C-11, which became the current Immigration and Refugee Protection Act, and we had intervenor status before the Supreme Court in the Charkaoui case.

We share the concerns already expressed by our colleagues from the Ligue des droits et libertés as to the need for allowing a larger number of witnesses to appear, and we underscore the importance of granting ample time to carefully study their submissions.

We have submitted a rather lengtht brief that we prepared, as well as a short summary. The time available will allow us only to present a very brief overview and to emphasize a few points, but we would be more than pleased to answer your questions on other aspects of our brief. I will proceed with the overview.

Canada's response to potential security threats should be founded on full commitment to human rights and should not rely on distinctions between citizens and non-citizens.

The use of secret evidence is a great threat to the principles of fundamental justice. Given this, any use of secret evidence must be kept to the absolute minimum and maximum safeguards must be provided to any person whose rights are at stake. If the safeguards are insufficient to allow the person to know and meet the case against them, the secret evidence must not be used.

The security certificate process should be eliminated.

The potential for the use of secret evidence in other immigration proceedings through section 86 is much broader than in security certificates and the rights safeguards are minimal. This aspect of Bill C-3 has not received the attention it deserves.

Canada must take seriously its obligation to protect non-citizens from removal to persecution or torture. The law needs to be amended in this regard to conform with international human rights instruments to which Canada is signatory.

I'm going to speak a bit about the last point, the issue of protection, which I believe has not been much addressed so far before this committee.

Persons subject to a certificate may have fled persecution in their home countries. Others may not have come to Canada as refugees, but once they are identified by Canada as linked to terrorism, they may face a strong risk of torture if they're removed to a country that practises torture. For these reasons, Canada needs to carefully apply the international obligations that exist under the refugee convention and the convention against torture.

There are a number of serious flaws in Bill C-3 in this regard:

One, it does not bring Canada into compliance with international human rights obligations by providing an absolute prohibition against return to torture and limiting exceptions to the non-refoulement principle to those contained in the refugee convention.

Two, the provisions relating to protection are weak and incoherent. If they are allowed to stand, they will almost inevitably lead to further litigation.

Three, a key problem lies with using the pre-removal risk assessment, known as PRA, to determine the person's protection. Under the PRA, a civil servant must balance the person's need for protection against the danger the applicant constitutes to the security of Canada. At the same time that the civil servant is deciding how dangerous the applicant is, the Federal Court judge is testing the minister's case against the person, including any allegations that the person represents a danger to national security. There is no coordination of these two processes; thus, the civil servant could decide that the person is too dangerous to merit Canada's protection, even while the Federal Court judge is concluding that the person is not quite as dangerous as the government is alleging.

Four, section 115 is added as a proceeding that can happen in parallel with the security certificate process. It appears that the intention is to allow for a re-assessment by a civil servant of a previous determination by the Immigration and Refugee Board that the person is a refugee. This represents a disturbing use of a provision that articulates Canada's most fundamental protection commitment, the principle of non-refoulement, to undermine a person’s status as a refugee.

In conclusion, the provisions relating to protection fail to provide the guarantees of principle and of procedure that are necessary to ensure that Canada respects the protection rights of the persons affected.

[Sharryn Aiken, Former President, Canadian Council for Refugees]

I would like to begin my remarks by pointing the committee's attention in the direction of some historical context, namely the long history of problems and mistakes made by security intelligence agencies in this country, whether we're speaking about the RCMP or CSIS. We can look to the findings of the McDonald commission that investigated RCMP activity in the 1970s, the recently concluded Arar inquiry, or the Air India inquiry currently in progress, to note that the Canadian public—all of us—need to be very skeptical with regard to the credibility of undisclosed and untested evidence proffered by intelligence agencies in this country. That context is very important to keep in mind as we review the specific provisions of Bill C-3.

Like my colleague Ms. Dench, I would like to draw the committee's attention to a few provisions in Bill C-3 that perhaps have not received as much attention as others. In particular, there's section 86 of Bill C-3, which speaks about the use of secret evidence outside the context of the security certificate procedure. To quote from our brief—and I would note that these paragraphs from our brief were endorsed completely by the Refugee Lawyers Association in their brief, which you should have before you by now as well—essentially I'd like to draw your attention to the fact that Bill C-3 proposes the continued use of secret evidence, non-disclosed evidence, under section 86 in a wide range of cases.

The Immigration and Refugee Board, which convenes section 86 hearings, is much less able to meet the procedural fairness hurdles set out by the Supreme Court. The Immigration and Refugee Board is a quasi-judicial administrative tribunal, not a court, and while only some of its decision-makers are lawyers, none are judges. Hearings before the IRB are conducted with greater informality and fewer procedural protections than before a court, yet the potential consequences for persons affected include prolonged detention and removal from Canada, to a danger of persecution or torture, and they are the very same as in security certificate cases.

Section 86 is even broader, since it allows the minister to apply for the use of secret evidence during any admissibility hearing, detention review, or appeal before the Immigration Appeal Division. There is no requirement that the persons affected even be alleged to be inadmissible on security or criminality grounds. It is enough that the minister wants to introduce the secret evidence. Keep in mind, then, that secret evidence can be introduced in a section 86 context in a case alleging misrepresentation. It may be alleging some form of criminality, but not necessarily serious criminality. And we may even be talking about inadmissibility on the grounds of health or economic reasons. We're talking about vast powers to introduce secret evidence in the context of section 86. The Immigration and Refugee Board member's decision can be based on this secret evidence if the member considers it reliable, appropriate, and relevant. That's the test.

We would ask if the government believes that if some non-citizen's fundamental rights need to be violated because they represent a threat to security, why is the use of secret evidence not limited to cases in which the persons affected are alleged to represent a genuine threat to security? Indeed, every statement made by the government to date—and certainly in the frequently asked questions available on the government's website—seems to imply that the power to deal with secret evidence is only being used in cases involving people who actually constitute a danger to security, a danger to society, and are heard and ruled on by judges of the Federal Court. That's a false premise, as the Refugee Lawyers Association noted, but it doesn't seem that enough people are aware of this. We're talking about Bill C-3 as proposing the continued use of secret evidence in a much broader range of cases.

CCR would like to emphasize the Supreme Court's ruling in the Charkaoui case in response. Although Charkaoui dealt specifically with the security certificate procedures, the case had much to say about the use of secret evidence in the security context more generally. In that regard, I'd like to quote a couple of small paragraphs from the Charkaoui judgment:

The principles of fundamental justice cannot be reduced to the point where they cease to provide the protection of due process that lies at the heart of section 7 of the Charter. The protection may not be as complete as in a case where national security constraints do not operate. But to satisfy section 7, meaningful and substantial protection there must be.

Meaningful and substantial are the key benchmarks here.

The court goes on to note:

If section 7 is to be satisfied, either the person must be given the necessary information, or a substantial substitute for that information must be found.

A substantial substitute for that information, I would underscore again.

It's the CCR's position that the proposed use of the special advocate model in the context of section 86, as well as in the context of the security certificate procedure, fail miserably in meeting the Supreme Court's benchmarks and, indeed, that Bill C-3 in its entirety is deeply flawed as a result. It is not, as the government has suggested, even minimally compliant with the requirements of section 7 of the charter.

I would be happy to elaborate on this point in discussion.

[The Chair, Conservative, Garry Breitkreuz]

Thank you.

And last of all, the B.C. Civil Liberties Association.

[Murray Mollard, Executive Director, B.C. Civil Liberties Association]

Thank you, Mr. President and honourable members.

It is always a pleasure coming from way out west to a place where when it snows the snow actually stays, unlike Vancouver, where we had a big dump, but of course it rains and it goes away in a very short time. So I thank you for giving me and our organization this opportunity.

I did want to start out by saying a little bit about the concern I think we have and that we've always stated whenever we meet with parliamentarians about national security matters. National security matters tend to invoke a lot of emotion, indeed at times I think panic, among the populace. But we've always said that in this context--and it's a very difficult context of balancing a variety of interests--we want our parliamentarians to be careful to take the time to deliberate on behalf of the collective sovereign, all Canadians, and to carefully consider this.

I'm very concerned. I'm worried about the amount of time you have. I understand the government has introduced the bill at a certain time, and you have to report out and you have to make decisions quickly because of the decision of the Supreme Court of Canada, but I'd urge you to take the time necessary to really fully understand the implications of this bill.

I'm happy to hear that you're going to be hearing from some other witnesses, but there are probably more you could hear from--and indeed, in your discussions internally, take the time to deliberate properly.

I'm going to begin my submission with respect to Bill C-3 by relating a conversation I had with Ian Macdonald, who is a barrister from England and somebody you may be familiar with and may have heard testimony from before. I understand he appeared before a parliamentary committee in Canada earlier this year. We had a conversation with him on July 6, 2005.

As you know, he was a special advocate in the English system but decided, after I believe up to eight years representing--and it's a good question about who he represents--the interests of at least testing information under their system before the Special Immigration Appeals Commission, that he could no longer sustain continuing his role because of his real concern that he was in fact just providing, in his words, a fig leaf, although we were discussing earlier today whether Justice Hugessen has also used that phrase.

In other words, he could not continue to play that role in a way in which he thought lended credence to a system that ultimately could not be sustained as fair and substantially providing due process to those subject to their system in England.

One of the keys for him--and there were a variety--was his inability to meet with the person who was subject to the order and to be able to discuss information that he had received and had reviewed after reviewing all the information before the tribunal. We're not just talking about national security information, because of course that requires some confidentiality, but indeed no ability to really have a discussion with his counsel and the person subject to that order.

That's in stark contrast to what occurred in the Arar inquiry. If you review Justice Dennis O'Connor's report, as I did last night, he'll make it very clear that it was really critical to any in camera hearings that the commission counsel, Mr. Cavalluzzo, was able to, after having seen all the evidence that the government held, have meetings with Mr. Arar and his counsel to be able to obtain suggestions and explore some of the evidence, as much as they could, given that national security confidentiality claim. Being able to explore that evidence as much as possible was very helpful going back into in camera meetings. That didn't occur, and it was one of the main reasons Mr. Macdonald decided to resign.

I wanted to take you then to the Charkaoui case, because after all that's why we're here. It's the decision of the chief justice and the whole of the court that is the reason we're here before you today and you're having to consider this legislation. I want to quote from paragraph 63; this is about halfway through paragraph 63:

The judge, knowing nothing else about the case, is not in a position to identify errors, find omissions or assess the credibility and truthfulness of the information in the way the named person would be. Although the judge may ask questions of the named person when the hearing is reopened, the judge is prevented from asking questions that might disclose the protected information. Likewise, since the named person does not know what has been put against him or her, he or she does not know what the designated judge needs to hear.

If the judge cannot provide the named person with a summary of information that is sufficient to enable the person to know the case to meet, then the judge cannot be satisfied that the information before him or her is sufficient or reliable. Despite the judge's best efforts to question the government's witness--

So we're talking about the judge questioning the government's witness.

--and scrutinize the documentary evidence, he or she is placed in the situation of asking questions and ultimately deciding the issues on the basis of incomplete and potentially unreliable information.

Paragraph 64:

Nevertheless, the judge's activity on behalf of the named person is confined to what is presented by the ministers. The judge is therefore not in a position to compensate for the lack of informed scrutiny, challenge and counter-evidence that a person familiar with the case could bring. Such scrutiny is the whole point of the principle that a person whose liberty is in jeopardy must know the case to meet.

And must have an effective ability to test that case.

Here, the principle has not merely been limited; it has been effectively gutted. How can one meet a case one does not know?

Those are the words of Chief Justice McLaughlin

So I ask you: if the judge isn't able to do that, how is the special advocate that is proposed under Bill C-3 able to do that, given that he or she is going to be in exactly the same position, in a sense, as the judge under the old system, or what exists now, until indeed Bill C-3 passes as is?

The answer is that the special advocate is in no better position to be able to assess that information without an absolute right to be able to go back before the named person on the certificate and his or her counsel and have a discussion.

Now, the joint committee on human rights in England has, in a report earlier this year, again found that there are fundamental flaws in the system of special advocates in England. I understand that in Canada we think we are doing better. I don't think that's the case, and we can maybe get into details about that later.

I want to go back to my discussion, though, with Mr. Macdonald. Ultimately, he said—and I believe he's testified to this fact before Parliament as well—you have to ask the question, is secret evidence and the security certificate process good anti-terrorism policy? In his submission he said that if the authorities only need really to conduct or to provide information to a judge that someone should be removed due to security concerns, the standard is going to be relatively vague. Indeed, this is information. It's not really evidence in the full understanding that we have as lawyers before administrative tribunals and courts, and this information really isn't pursued.

He said his worry, and I think it's very clear, is that the security officials--RCMP, CSIS--need not pursue that information in a way, investigate that information carefully, such that that evidence can become reliable intelligence to ultimately prevent terrorism. And that, after all, is the goal, I would think, to actually prevent terrorism. Indeed, that intelligence can't be converted into true evidence that would be able to be put before a court to pursue a prosecution.

I think the worry here is that, by definition, the security apparatus in Canada is going to cast their net broadly. We know—I don't think Mr. Arar is the only person—that the net is cast so broadly that people who really shouldn't be caught in that net are going to be caught, to their significant detriment. I understand that you, as parliamentarians, have a serious responsibility to ensure the national security of this country, but at the same time, I think Bill C-3 does not balance the civil liberties and the national security concerns in a way that is optimum. Indeed, I think it means it's almost certain that this legislation will be back before the Supreme Court of Canada. Fortunately, it takes years to get back there, rather than the shorter time it takes to come before you as parliamentarians.

I have other things to say, and I expect to have an opportunity as we get into questions.

Thank you very much.

[The Chair, Conservative, Garry Breitkreuz]

Thank you to our witnesses.

The usual practice at this committee is to now begin with questions from the official opposition, then go to the government side.

Mr. Dosanjh, please.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Thank you very much.

I want to thank each one of you for coming and speaking to us. As you heard, we will be speaking to some more witnesses, but it appears to me that the witnesses we have heard so far are essentially making the same or similar points on most of the issues, whether it relates to access, torture evidence, or other issues. So in a sense, I think there is a consensus of what legitimate criticism exists with respect to the bill, but we will be wanting to hear from more witnesses.

I want to ask a question of Ms. Aiken or Ms. Dench, and others can pitch in. I didn't understand the point about the protection issues that you were making. I'm a former lawyer and a former attorney general and all that. It just kind of went past me. Can you simplify it for me in layperson's language and tell me what you were talking about? I understand that you were talking about the board and the evidence before the board in other proceedings. We're concerned with the security certificates. If you just limit yourself to the security certificates issue as to how the protection issue arises in that, tell me.

[Janet Dench]

Sure.

The protection issue arises in a different way in the security certificate, so I sympathize with your lack of understanding of it, and you're not alone in that. I've talked to lawyers who deal with these things, and they are also confused. I think that speaks to the way in which the law is written and also to the fact that there has been no accompanying explanation by the government to the changes they have brought in this regard in Bill C-3. So we also have questions about what is intended by this.

We have two situations with security certificates in relation to protection. In one case, you have somebody who does not have refugee protected-person status. They have not yet been found to be a refugee. That person, under the security certificate process, is able to make an application under section 112 of IRPA, which is the pre-removal risk assessment process.

If you are subject to a security certificate, you are not eligible for a full PRA, but only for a specific type of PRA, which is spelled out in section 113, which is based on a balancing, on the one hand, of the risk to the person if they were removed from Canada, versus the risk to Canada because of the danger they constitute. This evaluation is done by a civil servant, not by the Immigration and Refugee Board, not by the Federal Court judge.

The question we have—and we have a number of questions, but what I was particularly focusing on—is the fact that this civil servant is making an evaluation saying “Okay, they're going to face a certain amount of risk if they're sent back, but we consider them to be this amount dangerous.” Let's say we give it a scale of one to ten and the civil servant says “Okay, this is a number seven risk person to Canada or danger to Canada.”

At the same time the Federal Court judge is looking at this very issue, potentially—that's normally what you would think the security certificate is about—they're hearing the secret evidence, they're testing that, and they may be saying, “Okay, with this person, there are some concerns about maybe the people they've been associating with,” but the Federal Court judge may think, “Well, they're only a level three danger to Canada.” Yet this protection decision has been made over here by the civil servant without it having any connection to the Federal Court process.

The second issue we're raising is around section—

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

In that case, would the decision of the judge not, in a sense, implicitly override? I know the minister moves based on the PRA process, but do you think the minister would not be bound by the decision of the Federal Court?