Public Safety Committee on April 25th, 2018

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

For a party that made great hay during the hearings on this bill of supporting people who are wrongly affected by this list, it is important to note, for the record, that the bill actually increases the number of days that the minister has before notifying someone.

Let's be clear here. The way the bill is drafted, even without Bill C-59, if individuals are not receiving a response in an adequate period of time, their names are removed, so essentially what the changes in Bill C-59 do is allow another month, another 30 days for individuals to wait in limbo while they potentially may want to travel.

There aren't a million people on this list. There are obviously thousands who are affected as we've seen in the last number of years, but it's safe to say that if the information is truly accurate, there is no reason why the minister can't address this type of injustice in 90 days. I am calling for 30 days. I appreciate Ms. May's notion of a compromise, which is actually returning to what is currently in legislation prior to Bill C-59.

It is pretty important to note that we're increasing the amount of time the minister has, while individuals are stuck in travel limbo.

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

l wish to remind you of the testimony of Kent Roach. He said that four months is a long time to be a wrongfully listed person.

[The Chair, Liberal, John McKay]

Is there further debate?

(Amendment negatived [See Minutes of Proceedings])

NDP-79 is defeated; therefore, PV-37 is still in play.

Ms. May, do you wish to have further debate on PV-37?

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

That would be appropriate at this point.

Think about the no-fly kids groups you heard from. Think about why the Liberals want to add more time to Stephen Harper's 90 days and go to 120 days. Just think about it, and please vote for my amendment.

[The Chair, Liberal, John McKay]

Is there further debate?

(Amendment negatived [See Minutes of Proceedings])

(Clause 134 agreed to on division)

(On clause 135)

[The Chair, Liberal, John McKay]

We are clause 135 and NDP-80.

Mr. Dubé.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you, Chair.

NDP-80 seeks to add a clause that uses the wording, “a judge must remove an appellant's name”. The wording would be, “If the judge finds that a decision made under section 15 is unreasonable, the judge must order that the appellant's name be removed from the list.”

This contrasts with the current wording, that the judge “may” remove the name from the list. It's my belief, and I'm sure many others, that if a judge is deeming that the person is on the list in an unreasonable fashion, there is no reason why they must not order the immediate removal of that person's name.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

I'd ask the officials to weigh in on this, if they would.

[Ari Slatkoff]

The current law allows judges' discretion in crafting a remedy. If they feel the initial decision to add somebody to the list was not supported, the judge, under the law as currently drafted, can still order that the person remain on the list based on new information that's presented before the court. This is different from a judicial review. That's why this section is called an appeal under a judicial review. If the initial decision is unreasonable, it has to be sent back to the original decision-maker.

In this context, given that we're talking about national security threats and the need to maintain people on the list if there's current information that they pose a threat that would make a decision today reasonable, it's arguably appropriate to allow judges to have that discretion.

[The Chair, Liberal, John McKay]

Is there further debate?

(Amendment negatived [See Minutes of Proceedings])

We are on NDP-81.

Mr. Dubé.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you, Chair.

One thing the no-fly list succeeded in doing was creating a consensus. I hope that in that consensus we can also all agree that this is a very broken system. In that spirit, I think it's important there be more accountability instead of some nebulous backdoor mechanism that exists. Acknowledging that there are national security concerns, we believe the minister should be tabling an annual public report that contains the number of names on the list, the number of requests for appeals, and the results of the appeals, to actually have a proper notion of how many injustices are being caused by this type of list, and how many people are being affected and able to successfully appeal that.

[The Chair, Liberal, John McKay]

Is there any debate?

Ms. Damoff.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Disclosing this information could cause an issue for national security. More importantly, there are other avenues for oversight for the no-fly list, one of which is the new committee of parliamentarians, as well as the Office of the Privacy Commissioner.

[The Chair, Liberal, John McKay]

Mr. Dubé.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you, Mr. Chair.

I find it interesting that you bring up national security. Some people have the same name as others whose names are on the list. Those individuals complain in public about the fact that their names are on the list. We know the names, but we do not want to disclose the number of those names. In my opinion, this information has a very minor effect on national security.

I would just like to add one thing in reply to my colleague's comments. Despite my trust, despite the fact that the creation of the National Security and Intelligence Committee of Parliamentarians is a step in the right direction, I find this to be a concern. Each time we encounter pitfalls with the accountability of national security agencies and the various associated mechanisms, we are told that the committee of parliamentarians is going to look into the matter. This habit is becoming more and more troubling, especially when the time comes to get political answers from the minister

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

I'm just curious to know whether officials feel there's any risk to individual security or national security, or privacy and international security, from producing such a report.

[John Davies]

Certainly, in regard to revealing the number of people on the list, the Federal Court already agreed with the government that it would be injurious to national security. That was in a ruling in 2016. So it's a yes.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Okay.

Then, as was mentioned earlier, we have this committee of parliamentarians. That would be the other avenue through which this information could become available. Is that what you're saying?

[John Davies]

Again, it would be classified information, or it could be redacted and released. NSIRA as well could look at this. In terms of the number of appeals, that would already be public. That would be public through the court system, so you would know that anyway.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Thank you.

[The Chair, Liberal, John McKay]

Is there any further debate?

(Amendment negatived [See Minutes of Proceedings])

We go to amendment PV-38.

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

Thank you, Mr. Chairman.

We're still within the sections that deal with the no-fly list and appeals against being on the no-fly list. I'll speak to both of my amendments at the same time, just to advance things for committee. They both speak to the same issue that was put forward by Kent Roach, by Alex Neve from Amnesty International, and by the Canadian Civil Liberties Association. The goal here is to appoint a special advocate so that during a no-fly list appeal hearing, where secret evidence is heard, there is an advocate for the public interest. Green Party amendment 38 sets out that there must be a special advocate. Green Party amendment 39 sets out the content of the responsibilities of the special advocate.

Again, this doesn't make any information public. It just ensures that the public interest is well represented. The use of special advocates, as I mentioned in yesterday's review of other clauses, stems from the post-9/11 anti-terrorism legislation of the Chrétien government, that if you're going to have security certificates, there be somebody there in the room who represents the public interest, because these hearings are extraordinary. They're secret. The rights of the individuals whose lives are being affected can't be represented by them in the room, so the special advocate's role is terribly important for protecting civil liberties in this country.

I hope you'll give full consideration to including both Green Party amendments 38 and 39, when the time comes. I know that Mr. Dubé will speak to one of these as well. To have a special advocate in that hearing room to represent the concerns of inappropriate use of information or inappropriate denial of rights is a safeguard—it does absolutely no harm—to ensure that we are consistent with what we do with security certificates, with what we do when we're impeding people's rights to travel into other countries.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you, Chair.

We have four amendments coming up that all deal with special advocates. I just wonder if officials could weigh in on the benefits or the disadvantages of having special advocates as part of this process.

[John Davies]

My colleague from the Department of Justice talked about special advocates in the context of the Canada Evidence Act. I think the other day we talked about special advocates in the context of CSIS and warrants, and here in this context. The answers are all pretty much the same. The judge always would have the discretion to appoint an amicus, a cleared amicus. In many cases, those amici are also special advocates. There are only so many lawyers, I guess, with a national security background and cleared at that level. So that discretion is already there.

I guess the difference in this case, relative to division 9 of IRPA when you're talking about potential detention, rulings of inadmissibility, and deportation, is that here, in the SATA context, we're talking about the ability to get on a plane or not, to be honest, to make your flight. The rights invoked are very different. So before you would want to create perhaps a whole new regime at much higher cost, it would be something to consider in that decision.

[The Chair, Liberal, John McKay]

Just before I call on Mr. Dubé, for those of us who are cursed with a law school education, “amicus” means friend of the court. That's how you're using it in this context?