Evidence of meeting #7 for Public Safety and National Security in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was evidence.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Dominique Peschard  President, Ligue des droits et libertés
Philippe De Massy  Lawyer, Ligue des droits et libertés
Janet Dench  Executive Director, Canadian Council for Refugees
Sharryn Aiken  Former President, Canadian Council for Refugees
Murray Mollard  Executive Director, B.C. Civil Liberties Association

4:50 p.m.

Executive Director, Canadian Council for Refugees

Janet Dench

Yes, absolutely.

4:50 p.m.

Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Given that the issue here is not deportation, because these people cannot be deported without facing possible death, before we push them off the cliff, could they not be given a right of appeal equal to those who are simply facing a set time in prison, that is to say an appeal on issues of law, on issues of fact, or on joint issues of law and fact, so that there would not be a single person with the responsibility of keeping them in detention indefinitely?

4:50 p.m.

Executive Director, Canadian Council for Refugees

Janet Dench

It is obviously astonishing that we give so few rights to a person who is facing a long detention and possible deportation towards persecution, torture and even death.

4:50 p.m.

Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

I have another question.

Mr. Mollard, I am very well aware of the suggestions you have made and of those to which you refer. We will certainly be thinking of improving the process.

You have alluded to something very important. If I understand you correctly, the special advocate should be able to know even more than the judge and should be able to review the files of the security agencies in order to see the evidence that would tend to show that the person is not connected to... For example, Mr. Charkaoui comes to mind, as he seems to have some idea of why he was arrested and is trying to answer the charges.

How do you see this working in practice? Should these special advocates have unlimited access? I am trying to see how this might work.

4:50 p.m.

Conservative

The Chair Conservative Garry Breitkreuz

Could you give a brief response?

4:50 p.m.

Executive Director, B.C. Civil Liberties Association

Murray Mollard

Briefly, there are a couple of things. Number one is certainly access to all the file that the government has, not just the information that the court is given. Number two, the ability to have that interplay with the person who's subject to the certificate is going to be critical in a way—and their advocate, their own lawyer—that can help to provide information, to provide evidence, so that indeed a special advocate could be able to call, perhaps, witnesses, and provide other documentary evidence that could really challenge and contradict the government's position.

I want to quickly make this point, though, and this goes to pages 301 and 302 of the Arar inquiry report. I just want to quote this, because it goes to the tendency of government--and it was certainly clear under the Arar inquiry--to over-claim national security confidentiality. I'll say this. This is Justice O'Connor:

However, the public hearing part of the Inquiry could have been more comprehensive than it turned out to be, if the Government had not, for over a year, asserted NSC claims over a good deal of information that eventually was made public, either as a result of the Government’s decision to reredact certain documents beginning in June 2005, or through this report. Throughout the in camera hearings that ended in April 2005 and during the first month of the public hearings in May 2005, the Government continued to claim NSC over information that it has since recognized may be disclosed publicly. This “overclaiming” occurred despite the Government’s assurance at the outset of the Inquiry that its initial NSC claims would reflect its “considered” position and would be directed at maximizing public disclosure. The Government’s initial NSC claims were not supposed to be an opening bargaining position.

As a matter of fact it's always going to be the case that the government, in its claims for NSC confidentiality, is probably going to overstate the case. It's going to be conservative. I don't necessarily say there's anything nefarious about that.

4:55 p.m.

Conservative

The Chair Conservative Garry Breitkreuz

All right, I'll ask you to wind it up. I think you've made your point.

4:55 p.m.

Executive Director, B.C. Civil Liberties Association

Murray Mollard

But I just wanted to get that on the record, because I think it's a very important point.

4:55 p.m.

Conservative

The Chair Conservative Garry Breitkreuz

Thank you.

Mr. Mayes, please.

4:55 p.m.

Conservative

Colin Mayes Conservative Okanagan—Shuswap, BC

Thank you, Mr. Chair.

I'm reading from the Canadian Council for Refugees' submission. In one of the first bullets on the first page, it says, “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.”

I would say that distinctions are part of the immigration proceeding. There are distinctions based on skill. There are distinctions based on financial assets, on sponsorship, on the country of origin quotas, age. There are a lot of distinctions made when immigrants come to this country. So why not distinctions to do with criminal or terrorist association?

There's an assumption here that these certificates are issued because there's actually a case against a person with regard to breaking the law or having committed a terrorist act. But really that's not the case. The decision here, to me, is whether the person is, by association, going to be a threat to Canadian society and should be accepted into the country. Is that not correct?

4:55 p.m.

Former President, Canadian Council for Refugees

Sharryn Aiken

I'd be glad to respond to your concern.

It's certainly true that, by its very nature, the Immigration and Refugee Protection Act discriminates in all kinds of ways. It's inherently about discrimination in terms of managing Canada's immigration program according to certain objectives, etc. We distinguish between certain categories and kinds of prospective immigrants, but that is very different from actually sanctioning discriminating against people once they're inside Canada with respect to conduct that anybody might commit, citizen or non-citizen. I would urge you to consider that as the fundamental distinction.

What security certificate procedures do about somebody who may or may not raise a concern about security is in effect say that the mere fact that they are a non-citizen means they're subject to a wholly separate procedure. The CCR is certainly not suggesting that the government doesn't have the right to make the ultimate decision about whether someone stays or goes, subject, of course, to the human rights commitments that we have not to deport someone to torture. The government retains that authority, but how we deal with the individual when they're inside Canada should be subject to due process protections that everyone in this country has the right to expect, citizen and non-citizen alike. The Charter of Rights itself sanctions differential treatment between citizens and non-citizens with respect to mobility, with respect to the franchise, but not with respect to right to due process, and not with respect to rights that trench on fundamental liberty and security protections.

5 p.m.

Executive Director, Canadian Council for Refugees

Janet Dench

If I can just give an example, when we deal with murder, we don't distinguish between citizens and non-citizens. If a murder is committed, then whether the person is a citizen or non-citizen, they will be brought to justice. We're saying that terrorism issues should be dealt with in that sort of way, which doesn't stop the fact that if someone is convicted of murder and they're a non-citizen, then they'll potentially be subject to deportation, which the citizen will not be. But the first response, the way you deal with the problem of murder, is one through the criminal justice system, where you do not distinguish between citizens and non-citizens.

5 p.m.

Conservative

Colin Mayes Conservative Okanagan—Shuswap, BC

It seems to me that there are two proceedings here. One is the judicial procedure and the other is the immigration procedure, and to me they seem not to be separated here. I personally think they should be. As far as policy on immigration is concerned, the determination should be in the hands of people to determine whether or not, by association....

At the previous meeting I gave an example of a person who may be under surveillance from their country of origin, and there was therefore a certainty that they were associated with organized crime in the country of origin but there was no proof. That person could come here, but there really isn't anything substantial to prove it. However, the information from the police or Interpol or whatever says that this person is likely associated with....

Do you want that type of person to be allowed to come to Canada?

5 p.m.

Executive Director, Canadian Council for Refugees

Janet Dench

Can I ask, though, whether we are talking about this sort of situation? When you say “organized crime”, as I understand it, the Supreme Court said that use of secret evidence is a violation of section 7, but that it might be justified under section 1 where there are issues of national security. I'm not sure that organized crime would constitute the kind of emergency that would justify a limitation of rights under section 1.

5 p.m.

Conservative

Colin Mayes Conservative Okanagan—Shuswap, BC

That's why the bill was brought in. The Canada Evidence Act provides for secret evidence in criminal trials. That's criminal trials. To me, there's a difference. I'm talking more about an immigration procedure.

The other thing is to define “secret”. That's another challenge. I'm having a real problem here, discerning between the need for certificates with respect to immigration and the need for certificates with respect to those who are a proven threat through criminal activity or through terrorism or espionage.

December 4th, 2007 / 5 p.m.

Executive Director, Canadian Council for Refugees

Janet Dench

You mentioned the Canada Evidence Act. From our perspective, we feel that it may give some useful clues, because the Canada Evidence Act recognizes that there may be sensitive information in certain circumstances, but it has a much more flexible mechanism for dealing with how you balance the need to keep that information secure versus the interests of the person affected. In looking at Bill C-3, one of the questions we have is why there seems to be this all-or-nothing provision. Either the government has concerns about the disclosure of the information—in which case it's absolutely non-disclosed—or it's out there fully in the courts, had you considered looking at a more nuanced and flexible approach that allowed for a better balance between the rights of the person and the specific needs of disclosure or non-disclosure in an individual case.

5 p.m.

Conservative

Colin Mayes Conservative Okanagan—Shuswap, BC

I guess the argument to me is on the rights of a person. It could also be that they don't have financial assets, but they still shouldn't be prevented from coming to Canada because of that. Rights are violated through the whole process, because there are distinctions between people who immigrate to Canada, through their proceeding.

5 p.m.

Conservative

The Chair Conservative Garry Breitkreuz

We'll have to wind it up.

Ms. Barnes, please.

5 p.m.

Liberal

Sue Barnes Liberal London West, ON

Thank you very much.

Thank you to each of you for coming and sharing your knowledge with us.

We've had quite a few really good suggestions from different witnesses over the last couple of days on how to do amendments, but this is a bill that has come to us after second reading, and some of these amendments, in our procedural ways, would be outside the scope of the bill and probably would not be receivable for us to do and follow along those paths. So I'm going to focus on a couple of things that I'm hoping would be inside the bill, that we could do an amendment on.

I want to ask your opinion, first of all, on the confidentiality, the special advocate right now, what level of confidentiality we could insert into this legislation that would improve it from where it is today.

The other thing I'd like to talk about is whether a named person should have choice of counsel. Again, I think that's something that would be inside the scope of the bill, that maybe we would be able to usefully work on.

Thirdly, one of my real concerns on this is, as we've seen in other jurisdictions, the resources to special advocates. What types of things should the government be looking at in the work of a special advocate, if that's the movement that goes forward? What, in your opinion, would be necessary?

I don't care who starts with this, but I'd like to hear all of your opinions.

Thank you. I have only five minutes.

5:05 p.m.

Executive Director, B.C. Civil Liberties Association

Murray Mollard

Maybe I'll quickly start.

Assuming you're sticking with the bill and you want to find ways to improve it, I have said that if you're going to use special advocates, you want to make it the best possible in the world.

You've picked up other points that certainly have been made about how to improve this bill.

I understand the bill, as it stands, makes it clear that there's no solicitor-client relationship between the special advocate and the named person. However, one of the improvements that's been suggested is to allow the special advocate to actually discuss the case after having access to secret information, and also that the special advocate, although it's not a typical solicitor-client relationship, still has a burden to maintain confidentiality as between the named individual and the special advocate, absolutely.

As far as choice of counsel goes, I think it's important. It's a fundamental principle of due process, certainly, that individuals do have choice of counsel. We'd like to see a scheme in which there would be greater choice.

It's not really clear how it's supposed to work, because I think a lot of it is left to the regulations. Independence is very important there as well, independence from government. I understand the judge is supposed to appoint, but the judge is obviously going to get a roster from government, so there's a real question mark about how to maintain independence there.

On resources to special advocates, these cases, of course, have volumes and volumes of material. If you're going to use a special advocate, you have to be able to make sure that person has adequate resources and assistance, really, to go through the volumes and volumes of evidence, because it will be a large burden.

5:05 p.m.

Conservative

The Chair Conservative Garry Breitkreuz

Are there other witnesses who would like to comment? Does anybody else have a comment?

5:05 p.m.

Executive Director, Canadian Council for Refugees

Janet Dench

We have in our brief outlined a number of specific areas in which the special advocate model is, as we call it, a minimalist model, like the worst possible. We believe you're off on the wrong track from the beginning, because we do not think this is the way to minimally impair the rights of persons affected, and we do not see the fundamental necessity for the security certificate process.

5:05 p.m.

Conservative

The Chair Conservative Garry Breitkreuz

Is there anybody else?

Do you have any other comments, Ms. Barnes? It doesn't seem that anybody else has a response.

5:05 p.m.

President, Ligue des droits et libertés

Dominique Peschard

I think we've already stated our case, that we don't agree with the security certificate procedure as a procedure, even if it is improved a little bit one way or another. The fundamental problems raised by that procedure we've mentioned in our presentation, and we don't think they can be resolved with an improved, or not, special advocate model. We think Canada's security can be guaranteed without having recourse to security certificates. That's our position.

5:05 p.m.

Liberal

Sue Barnes Liberal London West, ON

Okay.

Mr. Mollard, you've mentioned a number of things you would want to see as improvements. With those improvements, would you still see that this bill would be challenged?