Public Safety Committee on Dec. 4th, 2007

[Murray Mollard]

Yes, I think it will be.

As long as the individual subject to the certificate is not able to have access to the full panoply of information such that the individual can truly know the case against him or her and truly meet that case, there is going to be a violation of a principle of fundamental justice. So I think you will see challenges.

[Sue Barnes, Liberal, London West, ON]

Perhaps I should have said “challenge with success”.

[Murray Mollard]

Well, it's going to come down to....

I want to be on record that there is a better way to go as far as criminal prosecutions go, and indeed monitoring of individuals. Even if this bill dies, there is still a solution. But if you're going to have this special advocate process, there is going to be a lot you would need to do.

There are other models. And the Air India case has been an example, in which the Air India counsel had access, as I understand it—and people can correct me if I'm wrong—to the secret information. The counsel for these people knew the secret information, so they actually have the person who is the counsel for these individuals having access to the information, not even a special advocate.

There is even a more vigorous model, in which the counsel has all the kinds of relationship, information, background, knows the case intimately, and has that trust relationship with their client.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much.

We maybe have a little bit of time yet for Mr. MacKenzie.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you, Chair.

If there is any time left, I'll share it with my colleague, Mr. Brown.

I just have one question. My sense is that as a panel you would prefer that Canada have an open door policy to immigration and refugees, and once someone is in the country, the responsibility becomes that of the police agencies for criminal prosecution. Am I right in that assumption?

[Sharryn Aiken]

I don't think it's the position of any of us here today—certainly an articulated position—that Canada should have an open door policy. And we understand that by its very nature the Immigration and Refugee Protection Act makes distinctions.

What we're speaking about, however, is how we treat people once they're here in Canada.

[Dave MacKenzie, Conservative, Oxford, ON]

That's what I said. We let them into the country and then we make it a police issue.

[Sharryn Aiken]

That's not an open door policy.

[Dave MacKenzie, Conservative, Oxford, ON]

I think you're advocating that we use the Criminal Code. How do we do that if we don't simply let them in and then make it a police issue?

[Sharryn Aiken]

Actually, as both of our colleagues have suggested, the Criminal Code itself contains a vast range of preventive and sort of pre-emptive measures passed in the aftermath of 9/11, which are ample tools to address genuine security threats.

For example, the reason we often hear from government as to why we need security certificates is because we don't have enough evidence on these people yet. We know they smell bad. There is something wrong with them. We've heard stuff. We have some evidence, but we certainly don't have enough information to proceed with criminal charges. We want a quick and dirty process to get them out of the country.

Well, it's our response to that concern that you can't do quick and dirty when fundamental rights are at stake, but what you can do—

[Dave MacKenzie, Conservative, Oxford, ON]

You're talking about terrorism, though, aren't you?

[Sharryn Aiken]

Yes.

[Dave MacKenzie, Conservative, Oxford, ON]

What about industrial espionage and organized crime?

[Sharryn Aiken]

In any regard.

But what you can do is marshal the investigative tools that you have in the Criminal Code to get the evidence sufficient to actually prosecute or, in many appropriate cases, extradite if there are actual criminal allegations at play.

[Dave MacKenzie, Conservative, Oxford, ON]

But could we extradite somebody when the offence is that they're in Canada for a particular purpose?

If we can stop them from coming in.... I understand the prosecution side of it, and I would ask one other question. I understand and I appreciate the role of lawyers and what you do in taking care of the interests of the individual and so on. But has anybody here ever represented a victim at a hearing, a tribunal, or a court case, or an industry or a firm that's been the victim of industrial espionage or criminal activity? And if you have, by all means tell me. But what I hear is that your role has been to defend the individual. And that's fair, and I understand that. I'm not chiding you for that at all.

But how do we, as a government, represent the interests of Canadians, all Canadians, not only the individuals who we think may not be in Canada...?

[Dominique Peschard]

Well, there are different levels of threats. Now you're talking about espionage. Espionage is not directly a threat to the life of Canadians in the same way as a terrorist act, and we don't see why a person suspected of espionage would be treated differently, whether he's a Canadian citizen or a foreign national.

[Philippe De Massy]

We are here because Mr. Almrei has been deprived of his liberty for over six years, does not know the case against him, has no way of defending himself, and could possibly have his detention last for a lifetime. That's what we're here for; we're claiming that this is against all the fundamental principles in human rights.

We're defending those principles; we're not here to defend individuals or putting societies at risk against the danger that individuals pose. We are here to defend those principles. We claim that fighting terrorism and fighting organized crime, or whatever, can be done with the full respect of the fundamental principles that human beings have given themselves.

[Dave MacKenzie, Conservative, Oxford, ON]

I understand that, and I have no issue with that; I respect you for that role. But how do we deal with Canadians? We had the widow of a 9/11 victim in here last week. How do we say to her that we're going to protect the interests of those folks? I think the Air India people are asking us what we did to protect them, and obviously we didn't do enough.

[The Chair, Conservative, Garry Breitkreuz]

Did you want to share your time with Mr. Brown?

Okay, Mr. Brown, go ahead.

[Gord Brown, Conservative, Leeds—Grenville, ON]

Mr. Chairman, I'll get this in quickly.

It's clear that the Supreme Court has upheld the security certificate regime, and you're all here today telling us that you don't want any part of it; you think it should be squashed and should not exist.

What we are doing now is looking for any way to improve the situation and improve the regime. In the few minutes we have left, I would like to hear what.... Maybe you can't do this because you don't believe in the regime, but is there any information you can give us to potentially improve this legislation so that it would somewhat satisfy you? Maybe that's not possible, but here's your chance to give us your two cents.

[Janet Dench]

Thank you for that opportunity.

I would like to come back to the issue of section 86, because there is a tendency always to talk about security certificates. I understand that they are the most serious issue in the bill in terms of the rights at stake, but section 86 is an important provision. It has been used on multiple occasions--more than the security certificates, I believe--and we need to look to the future and the ways in which that may be used in the future, so I would suggest that you look more carefully at limiting the use of secret evidence in the forum, if not eliminating it.

[Gord Brown, Conservative, Leeds—Grenville, ON]

Okay.

[The Chair, Conservative, Garry Breitkreuz]

Does anyone else have any concluding comments? We have votes coming up in the House here in a minute.

[Philippe De Massy]

Actually the problem is secret evidence, of course, but you know, in protecting these fundamental values that now are part of the international law that Canada adheres to through different conventions and treaties, we are protecting every single individual around this table. These are our rights that we're talking about, not the rights only of criminal elements who are going to endanger society; it's the right of every person not to be deprived of his freedom without due process. This is the only thing we're trying to stress--that if we want due process, we are not getting it with these amendments.

[The Chair, Conservative, Garry Breitkreuz]

Seeing no more hands going up, I will thank our....

Go ahead, Mr. Cullen.