Public Safety Committee on Dec. 4th, 2007

[Sharryn Aiken]

If I may, it is helpful to note that many countries in Europe and elsewhere have resorted to the criminal law process in their domestic jurisdictions with far greater frequency than Canada has. That doesn't mean that those countries don't adopt immigration procedures from time to time as well, but that there is far greater evidence, for example, in France, of successful prosecution in an anti-terrorism context than there has been here. Even in the United States the so-called millennium bomber received an ordinary criminal trial with evidence that was held up to ordinary due process.

[Dave MacKenzie, Conservative, Oxford, ON]

If I could just interrupt you for a second, that occurred in the United States. We're talking about people who want to come to this country who we view as a threat when they get here.

[Sharryn Aiken]

There was one other point I wanted to make, if I may, which was to respond to your suggestion that security certificate procedures aren't used all that frequently in the broad scheme of things, so why are we all up in arms about it--after all, it doesn't affect that many people.

There would be two points that I would make, the first one being that the fact that a smaller number of people are affected directly by security certificates is no answer to the procedural flaws. If only one person in this country was affected by a deeply unjust system, we would all have grave concerns about it.

Secondly, I think it is important to understand that although the security certificate procedures themselves apply to individuals, the fact that they exist in Canadian law affects broad communities within which these individuals reside. The refugee and immigrant community in particular has been deeply affected by the existence of these procedures and deeply tarnished by the broad brush that the procedures have painted. The whole problem of racism, racial profiling, which existed well before 9/11 but has been exacerbated in its aftermath, is all part and parcel of the security certificate procedure. I think it is important to keep that context in mind, and hopefully some of the other witnesses who have appeared before you and potentially will appear before you tomorrow will elaborate further on that.

[The Chair, Conservative, Garry Breitkreuz]

Okay, we'll go to the five-minute rounds now.

Mr. Cullen, please.

[Roy Cullen, Liberal, Etobicoke North, ON]

Thank you, Mr. Chairman.

Thank you to the witnesses. I think I've probably seen all of you on the same topic, maybe going back two Parliaments on the same legislation, but thank you for coming.

I want to pick up on where Mr. MacKenzie left off.

The 19 people have been removed as a result of the security certificate, and you're not aware of them having faced torture or death. In fact, in terms of those 19, it could have been that they didn't make that argument, the PRA assessment, so they might have willingly gone back to their countries. But you haven't actually researched that.

When I look at this list of those people currently detained.... I actually have a list of six. I thought you said five.

[Dave MacKenzie, Conservative, Oxford, ON]

No, Mr. Peschard said five.

[Roy Cullen, Liberal, Etobicoke North, ON]

Oh, it is six. Yes, that's what the list here says.

One fears torture and death in Algeria; another fears torture and death in Syria; another, torture and death in Morocco; two others, torture and death in Egypt; and another, torture and death in Sri Lanka. Have you ever looked into the credibility of those assessments?

The reason I ask is because I get a lot of people who come to Canada, they claim refugee status, they're denied, they appeal, and they go to the Federal Court. They lose there, and then they're subject to removal. Then they put in this risk assessment. They say they're going to be tortured or killed if they go back to their country. In some cases those arguments are heard and agreed to, but in many cases they don't succeed with those arguments.

Have you looked at the six here as to the credibility? It's about credibility, isn't it, the credibility of these statements that they're going to be killed or face torture in these countries?

[Sharryn Aiken]

I think, actually, not only I, but the Supreme Court of Canada has looked at the credibility of those assertions in the case of Mr. Suresh, one of the security certificate individuals named in that group of six, and the Supreme Court of Canada found that there was indeed a prima facie risk that Mr. Suresh would be tortured if he returned to Sri Lanka. You actually have the Supreme Court of Canada indicating that the allegations the individual was making were sufficiently well founded to require Mr. Suresh a new hearing, in effect, a new procedure.

As to the facts of the other individual cases, as a law professor, I've looked into the facts quite extensively, because I teach these cases to my students. Of course it's very difficult for anyone not having access to the full evidence to be sitting before you and saying with any degree of confidence that we know this or that about the case, because in fact what we know about the case represents a small fraction of what is probably before the court.

However, I would ask you, why are you asking that question? Why does it matter whether we have personal views about the individual's credibility or not? The whole point is that the procedure itself is flawed and will not be best suited to actually assessing credibility.

[Roy Cullen, Liberal, Etobicoke North, ON]

Excuse me; if you don't mind, I'll ask the questions.

[Sharryn Aiken]

But I would like to know why—

[Roy Cullen, Liberal, Etobicoke North, ON]

It is an interest to me, because in many of these cases—not necessarily with respect to these six detainees—the claims made by people who are here on refugee status, denied, appealed, and so on, I've seen maybe a very low percentage of them that hold up in terms of their credibility.

You cited Mr. Suresh, but there are five others, and there have been 19, some of whom, I would admit, may have gone back voluntarily.

But let me come back to this: Are there any ways in which this bill can succeed? What are you actually saying? Do you support the need at all for security certificates?

No? So you don't support them all. In other words, if these hearings carry on until the end of February and these people are released because these matters haven't been dealt by the Parliament of Canada, you wouldn't be upset with that. Is that right?

[Janet Dench]

Let us remember that these provisions only apply to non-citizens. We have no reason for thinking that only non-citizens represent a risk to Canada. So if you collectively think we in Canada are safe with not having similar provisions for citizens, why are we not safe if we don't have these provisions for non-citizens?

[Roy Cullen, Liberal, Etobicoke North, ON]

I think you didn't answer my question. If these people are all released into Canada because the deadline for dealing with this legislation is not met, would that be of concern to you or not? It's a simple question.

[Janet Dench]

No.

[Philippe De Massy]

If there are very serious matters that we can reproach these people with, I would be confident that the police and information services are going to do what is required to charge them if they have to be charged, or whatever.

With regard to the credibility, may I just point to the fact--

[Roy Cullen, Liberal, Etobicoke North, ON]

On that point, if I might interject, if criminal charges could be laid, they would have been laid, believe me.

Carry on.

[Murray Mollard]

I'm not sure about that. I actually do think, going back to my earlier submission, that the security certificate process does allow the security apparatus to cut short investigations and provide information that really short-circuits that process.

If the legislation were to essentially expire in February, just to pick up on what my colleague suggests, I would be certain that our security apparatus, via CSIS and the RCMP, would not simply let these people operate with impunity if indeed they pose the threat that it's suggested they do. They would be very carefully monitored; they would be indeed more monitored than I think any person possibly could be. Indeed, if they were, evidence and intelligence would be gathered that could actually prevent any terrorist activities that they were involved in. It could actually prevent a terrorist act itself.

[Roy Cullen, Liberal, Etobicoke North, ON]

Mr. Mollard, you may not remember, and it may not have been you, but the B.C. Civil Liberties Association were on a panel a couple of Parliaments ago. I appreciated your candour then--I think it was you, but perhaps it was one of your colleagues--when I asked a question based on a dossier of an alleged assassin. I'll say “alleged”, but I think actually he's admitted that he was an Iranian assassin. I asked your colleague, if it wasn't you, whether, after going through that dossier, you'd like that person living next door to you, and I guess it was your colleague who said no, he wouldn't. I said, “Then your problem is...?”, and he said it was the process.

What we have here is a revamped process with a special advocate, but you're saying that in your judgment this process is still flawed. Is that right?

[Murray Mollard]

It wasn't me, Mr. Cullen. I'm not sure who you're referring to, but no doubt there are bad people in this world. I don't think anybody is suggesting that there aren't possible threats to the security of Canada posed by individuals involved in terrorist activities, and I'm indeed thankful that we have a security apparatus that can undertake this work.

We have to be skeptical of some of the work they do and we have to be very careful about the accountability mechanisms that we have in place, because we know they make mistakes. We know they cut corners and we have a large tome of evidence that suggests they did in Mr. Arar's case.

I have said that in the alternative, if you're not going to let this system just expire and you're going to continue with the security certificate program and you want to use special advocates, I don't think the bill before you is going to meet the constitutional standard of principles of fundamental justice required at the Supreme Court of Canada. That's really the question before you, I think, in your deliberations.

[Roy Cullen, Liberal, Etobicoke North, ON]

What's your suggestion, then?

[Murray Mollard]

I think there are a variety of things. You've heard evidence, I presume, from other witnesses on this. I know that Mr. Waldman and Mr. Forcese have come before you, but there are a variety of things. There is full disclosure, not just the disclosure that goes to the court; indeed, all the information the government has about this particular individual, which could include exculpatory information and evidence that would exonerate this person, should be going to the special advocate.

We've made the point several times now, I think, that the special advocate would have to have continued access to the person subject to the certificate after the fact. Stop me if you need to; I presume you've heard all of this already.

[The Chair, Conservative, Garry Breitkreuz]

Yes.

Go ahead, Monsieur Ménard, please.

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

I understand perfectly well that the reason we are worried about the plight of the 21 deported individuals is probably because they have been deported, precisely because they were not likey to be tortured.

At present, our main concern pertains to people who may be tortured or killed and who are to be deported. When I read the Supreme Court decision, it is precisely because of the very significant consequences, such as imprisonment for an indefinite period of time, that it is asking for requirements that closely resemble criminal law requirements. I would imagine that if these individuals prefer the comfort of our prisons rather than returning to their country of origin, it is not because they would be so poorly off there, it is because they could be imprisoned there. That is what I am chiefly concerned about.

To repeat an expression I hear often, it is true that the deportation order is a three-walled prison. If I continue on with this comparison, there are circumstances where the prison has three walls and a cliff on the fourth side. It's for these cases that we must, before we deport people, ensure that we have something more than a mere deportation order.

I do not want to get into whether or not we should, in cases where we're dealing with people who really may be killed if they are deported, call for a much more demanding procedure or more solid evidence than in cases where there is merely a deportation order, because other issues concern me. However, I do think that this is a topic that we could explore. Moreover, it seems to me that the criteria should be increasingly stringent if the detention continues for several years.

On another issue, no one has talked about appeals. Are you satisfied with the fact that this appeal, which is purely administrative, is perhaps accessible and acceptable in cases where we are dealing with purely administrative decisions that do not involve the loss of liberty? Are you satisfied with this type of appeal?

Personally, I am not aware of any appeal requirements that are so stringent. If I were the person targeted, I would say that this type of appeal may be good for furthering justice, but it wouldn't reassure me a great deal to know that the person who decides whether or not I'm to remain in prison indefinitely is also the same individual who will be drafting my notice of appeal for submission to the appeal court judge.

Do you have any comments to make with respect to the appeal process?

[Janet Dench]

You are referring to a problem that exists in immigration law that affects not only those named in security certificates, but all of those who are covered by immigration decisions. The appeal is limited to a judicial review, and an appeal of the decision of the trial division of the Federal Court can only be done with leave, and it is up to the trial judge to certify the questions. From our perspective, that represents a significant limitation of the rights of new citizens.

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

Would you agree with me that they should be given at least the same rights as an accused facing imprisonment of a specified duration?