Public Safety Committee on March 31st, 2015

[The Chair, Conservative, Daryl Kramp]

Thank you.

(Amendment negatived)

(Clause 54 agreed to)

(On clause 55)

Now we'll move to PV-52.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

I'm sure my friends opposite will be thrilled to know this is an amendment suggested by the Canadian Bar Association, a professional association of lawyers across Canada.

I'm forcibly struck by their point that the current section 79.1 offers an appeal, but it's only available to the minister. They noted in their brief:

Bill C-51 would allow further appeals under IRPA that only benefit the Minister. Asymmetrical access to appeals and judicial review is unfair, further skewing the parties’ positions in a process already heavily balanced against the person subject to non-disclosure.

Based on their recommendation, PV-52 would have the effect of removing section 79.1.

[The Chair, Conservative, Daryl Kramp]

Thank you very much, Ms. May.

(Amendment negatived [See Minutes of Proceedings])

(Clause 55 agreed to)

(On clause 56)

We will now go to Green Party amendment 53.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I can save us some time, Mr. Chair, by saying that the preamble is exactly the same. It's the Canadian Bar Association's advice that lopsided appeals that would benefit only one side are offensive in law, and this would remove it.

[The Chair, Conservative, Daryl Kramp]

Thank you very kindly, Ms. May.

(Amendment negatived [See Minutes of Proceedings])

(Clause 56 agreed to)

(On clause 57)

We will now go to amendment number PV-54.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

I know the hour is late, Mr. Chair, but this is an extremely important amendment.

We didn't have testimony from the special advocates, but they did file a written submission to this committee. They are very concerned about this new provision, which would allow the minister to request of a judge that the minister be exempted from the obligation of providing the special advocate with a copy of the information that normally, in the current process that's been in place since the 9/11 2001 anti-terror laws, allows someone to have access to this information with the concerned person's interests at heart. So, they've expressed—and I think members will remember seeing this in their written submission—that the new provision that will allow the government to obtain an exemption will deny the special advocate access to information that even the government has deemed to be relevant to the case against the named person. There are no guidelines on what information may be withheld from the special advocate or why. It says only that it may be information that would not enable the named person “to be reasonably informed of the case made by the minister”. The special advocates have found this extremely problematic. I wish I had more time to present it, and I know the hour is late, but this is quite offensive to people who have been dealing with the law as special advocates for years now, and my amendment would ensure that the provision was removed.

[The Chair, Conservative, Daryl Kramp]

Thank you.

Is there any discussion?

Mr. Easter.

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Chair, I am going to speak on this one, because I think Ms. May has a legitimate concern here. We have heard from special advocates, and if they are going to do their job in representing people, they do need all the information that may be relevant to the situation that an individual finds themself in.

My question to Justice officials would be since this seems to be going against what is standard practice to date, what would be the reason for going this way in this particular bill?

[Élise Renaud]

There can be situations in which information is relevant although not required for the ministers to prove the case or not required for the individual to be reasonably informed of the case. In such situations, for example, you may have an overall report on a variety of different subject matters, and only part of that report might include something that pertains to the person. In such situations, the rest of the report may not have anything to do with the case at hand, and so the provisions allow the minister to ask a judge to provide an exemption. So the judge would see everything. They could also exercise broad discretion to see if part of that report could be, for instance, held back. They can also communicate with the special advocates to the extent required so that they can make a determination and the special advocates can make a submission as to whether or not that exemption should be granted.

[Wayne Easter, Liberal, Malpeque, PE]

You said the judge can see everything?

[Élise Renaud]

Yes.

[Wayne Easter, Liberal, Malpeque, PE]

All right.

Thank you.

[The Chair, Conservative, Daryl Kramp]

Thank you, Mr. Easter.

Mr. Payne.

[LaVar Payne, Conservative, Medicine Hat, AB]

Deleting these provisions would remove the protections that have been added for classified information and that have already been spoken to by the officials.

Thank you.

[The Chair, Conservative, Daryl Kramp]

Thank you very much.

(Amendment negatived [See Minutes of Proceedings])

(Clauses 57 and 58 agreed to)

(On clause 59)

Now we will go to amendment PV-55.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair. These are also submissions that were suggested to us by the special advocates. They wrote:

Under the amendments to the Immigration Refugee Protection Act proposed in Bill C-51 the government will be allowed to decide what information is “relevant to the case made by the Minister” and give only that to the special advocates.

The special advocates have no objection to the criteria of relevance, but they object strongly to the government deciding what is relevant. The special advocates have proposed that clause 59 of the bill be amended so that paragraph 85.4(1)(b) will read that the special advocates “shall receive all information and other evidence that relates to the named person”.

Taking their suggestions, I've made a two-pointed amendment to those sections. One is that they should at least have all information relative to the information's origin and reliability without disclosing, and also the proposal they made that the minister can't decide what is relevant and only release that. The minister should release anything that is related to the named person.

Thank you.

[The Chair, Conservative, Daryl Kramp]

Thank you very much.

Yes, Mr. Garrison.

[Randall Garrison, NDP, Esquimalt—Juan de Fuca, BC]

Thank you very much, Mr. Chair.

I thank Ms. May for introducing this amendment. It covers some of the same ground as our next amendment. I think she's made the arguments very eloquently. The situation special advocates find themselves in is not with judges making a decision on what they get to see, but with the government already making a decision in advance of the judge having an opportunity to do so. We will be supporting this amendment.

[The Chair, Conservative, Daryl Kramp]

Thank you very much.

Yes, Mr. Norlock.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

I'll be very brief. There's a long analysis, but I'll just go with the short one. The amendment would create an inconsistency between what is filed with the federal court and what is provided to special advocates under paragraph 85.4(1)(a). It would widen the scope of the information that is provided to the special advocates from what is relevant to the case to what relates to the person, which would include irrelevant information.

The bill specifically insures that special advocates not only receive the information that is filed wit the federal court, but also receive any information in the minister's possession that is relevant to the case even if it is not relied on by the minister. The information may be included as evidence by the special advocates if desired.

[The Chair, Conservative, Daryl Kramp]

Yes, Mr. Easter.

[Wayne Easter, Liberal, Malpeque, PE]

I have a question I would like to ask in light of the officials, based on Randall's point.

Who makes the decision on this information of what is relevant?

[Nancie Couture]

The minister would determine the element to support the allegations in the certificate, but would also provide information that is relevant to the allegations as interpreted by the Supreme Court of Canada in its Harkat decision. It would provide information that is relevant to the case in order that the person has sufficient information to provide meaningful guidance and instructions to the special advocates, and to their counsel as well.

[Wayne Easter, Liberal, Malpeque, PE]

Coming back to Randall's point, even the judge only sees what the minister feels is relevant regardless of all the other court cases. The minister is making a decision on what's relevant. That is a problem.

[Nancie Couture]

If information is relevant to the allegations, the information is also provided to the special advocates. You have the information that is provided to the court that is filed into evidence and you also have other information that is provided to the special advocates. They can review all the information and determine if it's relevant to their case. If it is, they can file it into evidence. Paragraph 85.4(1)(b) indicates that.