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.