Mr. Speaker, I want to speak today to Motion M-39, moved on January 18, 1994, by the hon. member for Scarborough-Rouge River, which reads as follows:
That, in the opinion of this House, the Parliament should adopt specific measures to enable and ensure access by Members of Parliament to all judicial, quasi-judicial and administrative hearings held under the provisions of the Immigration Act, the Young Offenders Act, and the Corrections and Conditional Release Act.
This motion refers to three acts. As a general rule, court hearings are public. In camera hearings are the exception. It is not very hard to understand that confidentiality may be required when the life, freedom or security of a person could be put at risk by public hearings.
In immigration matters, the court that rules on refugee status claims is the Immigration and Refugee Board, the IRB.
The IRB is made up of three divisions: the Refugee Division, where proceedings are normally held in camera; the Appeal Division, where normally proceedings are public; the Adjudication Division, where normally proceedings are public also.
Section 69(2) of the Immigration Act provides that: "Subject to subsections (3) and (3.1), proceedings before the Refugee Division shall be held in the presence of the person who is the subject of the proceedings, wherever practicable, and be conducted in camera or, if an application therefor is made, in public''. This is the provision the member's motion deals with.
Subsection (3.1) adds that: "Where the Refugee Division considers it appropriate to do so, it may take such measures and make such order as it considers necessary to ensure the confidentiality of any hearing held in respect of any application referred to in subsection (3)". The legislator has therefore established the confidential nature of hearings before IRB commissioners, since the refugee claimant may have to give details about his life and the dangers he had to face. Sometimes, as is the case with rape victims, they have to describe intimate situations and circumstances that the public does not have the right to know.
On the other hand, confidentiality is not needed in appeal cases dealing mostly not with facts but points of law. Thus, sections 80(1) provides that "Subject to subsections (2) and (3), an appeal to the Appeal Division shall be conducted in public". This is the general principle.
The exception is covered by subsection 80(2). It reads: "Where the Appeal division is satisfied that there is a serious possibility that the life, liberty or security of any person would be endangered by reason of the appeal being conducted in public, the Appeal Division may, on application therefor, take such measures and make such order as it considers necessary to ensure the confidentiality of the appeal".
As for the Young Offenders Act, it states, under subsection 39(1) that: "Subject to subsection (2), where a court of justice before whom proceedings are carried out under this Act is of the opinion a ) that any evidence or information presented to the court or justice would be seriously injurious or seriously prejudicial to
(i) the young person who is being dealt with in the proceedings,
(ii) a child or young person who is witness in the proceedings, or
(iii) a child or young person who is aggrieved by or the victim of the offence charged in the proceedings, or ( b ) that it would be in the interest of the public morals, the maintenance of order or the proper administration of justice to exclude any or all members of the public from the courtroom, the court or justice may exclude any person from all part of the proceedings if the court or justice deems that person's presence to be unnecessary to the conduct of the proceedings''.
This provision is very clear as it relates to young offenders. This piece of legislation is based on the principle of rehabilitating young offenders. While the need for punishment is recognized, the focus is on rehabilitation into the community to preserve the public peace. That is why it strongly protects the young offenders' identity, disclosure of which to the media, as well as the disclosure of any fact that could give away their identity, being forbidden.
Also, the presence of observers is controlled to ensure fair treatment to all. There is a strict procedure governing admission to hearings, and it is difficult to see why these measures ought to be changed. Once can easily imagine what impact the presence of a member of Parliament in the courtroom would have on a young offender. And what use would this information be to the member, since none of it can be disclosed in any case?
The third statute referred to in the motion is the Corrections and Conditional Release Act. Subsection 141(4) of that act provides that: "The commission may, to the extent deemed absolutely necessary, prevent the communication of information to an offender, if it has reasonable grounds to believe that such communication would be against the public interest, would jeopardize the safety of a person or of the penitentiary, or would jeopardize the holding of a legal inquiry".
Looking at the three above-mentioned statutes, I think that Parliament was right, in the specific cases that were mentioned, to allow in-camera proceedings and to protect confidentiality of files, as well as the right to privacy of individuals.
I realize that the hon. member for Scarborough-Rouge River seeks to facilitate the job of parliamentarians by, among other things, ensuring that they can attend any judicial, quasi-judicial or administrative hearing, if only to verify the administration of federal statutes.
However, there are other ways of assessing the effectiveness of a piece of legislation. Let us not forget that separating the legislative and judicial powers is a basic principle to ensure a sound democracy. In that sense, the presence of a member of Parliament, who is a symbol of political power, would not always be a good thing in the situations targeted by the hon. member's motion.
The Immigration Act best exemplifies the negative impact that the presence of an MP could have on a refugee claimant, who may never have appeared before a court in his country of origin, and who does not really know Canada's rules and policies in that regard. Such a presence could often be intimidating for the claimant. This is especially true if the claimant knows that the MP is not particularly receptive to his claim. This is sometimes the case, as in the Malik affair, which took place in Toronto, in 1991, and to which the hon. member for Scarborough-Rouge River just referred.
These three statutes all authorize in-camera proceedings or public hearings. At certain stages of the process, they require that some restrictions be applied, so as to ensure protection of, among other things, the right to privacy. Why should members of Parliament be allowed to violate these rights, and what use would they make of the information obtained?
This is the real issue. For all these reasons, I oppose Motion M-39.